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General Terms and Conditions of Sale and Delivery

STROMata GmbH, Zirndorf, Germany

§ 1 General Provisions, Scope of Application

  1. These General Terms and Conditions of Sale and Delivery (GTC) apply to all business relationships between STROMata GmbH and its customers (“Buyer”). They apply exclusively to entrepreneurs within the meaning of § 14 BGB, legal entities under public law, or special funds under public law.
  2. These General Terms and Conditions of Sale, Delivery and Services (GTC) apply to all contracts for the sale and/or delivery of movable goods (“Goods”) as well as to contracts for the provision of services and other contractual obligations, irrespective of whether we perform the services ourselves or through subcontractors.
  3. Our GTC apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer shall only become part of the contract if we expressly agree to their validity in writing. This shall also apply if we execute delivery to the Buyer with knowledge of such terms.
  4. Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g., setting deadlines, notices of defects, declaration of withdrawal or reduction) must be made in writing or in text form. Statutory formal requirements and further evidence, particularly in cases of doubt about the legitimacy of the declarant, remain unaffected.
  5. Insofar as necessary for business purposes, we are entitled to electronically store and process Buyer data in compliance with applicable data protection laws.

§ 2 Conclusion of Contract

  1. Our offers are non-binding and without obligation. A contract is only concluded by our written order confirmation or by execution of the delivery. Technical changes and product developments remain reserved. This also applies if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, references to DIN standards), or other product descriptions or documents – also in electronic form.
  2. The Buyer’s order of the Goods shall be deemed a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this offer within two weeks of receipt.
  3. Acceptance shall be made either by explicit confirmation in text form (e.g., order confirmation) or by delivery of the Goods to the Buyer.

§ 3 Prices and Payment Terms

  1. Our prices apply, unless expressly agreed otherwise, ex works in accordance with Incoterms 2020. Prices do not include packaging, reels, insurance, freight, or VAT, unless otherwise stated.
  2. In the case of a sale involving shipment, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer.
  3. The purchase price is due and payable within 30 days of invoicing and delivery without deduction. We are entitled to carry out deliveries in whole or in part only against advance payment if there are indications of an increased risk of payment default.
  4. Upon expiry of the payment period, the Buyer shall be in default. During the default, the purchase price shall bear interest at the statutory default interest rate. We reserve the right to assert further damages caused by default. Our claim to commercial default interest (§ 353 HGB) remains unaffected.
  5. The Buyer shall only be entitled to set-off or retention rights if their claims are legally established or undisputed. In the case of defects in delivery, the Buyer’s counterclaims shall remain unaffected, particularly pursuant to § 8 (6) of these GTC.
  6. If the delivery or performance date is more than three months after conclusion of the contract, we are entitled, after timely notification of the Buyer and prior to delivery, to reasonably adjust the agreed price of the Goods or services, including transport costs, to the extent that cost developments beyond our control (e.g., input costs, exchange rate fluctuations, customs or fee changes) make this necessary. In the case of framework contracts, the three-month period shall begin upon conclusion of the framework contract.

§ 4 Delivery, Delivery Times and Default of Acceptance

  1. Delivery shall be made, unless expressly agreed otherwise, ex works (Incoterms 2020). At the Buyer’s request and expense, the Goods shall be shipped to another destination (sale by dispatch). Unless otherwise agreed, we shall determine the type of shipment (in particular transport company, route, packaging).
  2. The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer at the latest upon handover to the Buyer or to the person carrying out the transport. In the case of a sale by dispatch, the risk shall pass upon delivery of the Goods to the carrier, freight forwarder, or other person designated to carry out the shipment.
  3. If the Buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for reasons attributable to the Buyer, we shall be entitled to claim compensation for the resulting damage, including additional expenses (e.g., storage costs).
  4. In the case of call-off orders, unless otherwise agreed, an acceptance period of no more than one month after expiry of the agreed period shall apply. After expiry of this period without result, we shall be entitled, at our option, to withdraw from the contract or to store the Goods at the Buyer’s expense and invoice them accordingly.
  5. Partial deliveries and reasonable deviations are permissible insofar as they are reasonable for the Buyer.
  6. Industry-standard excess or short deliveries of up to +/- 10% of the agreed quantity are permissible.

§ 5 Delivery Periods and Delay in Delivery

  1. Delivery periods shall be agreed individually or specified by us in the order confirmation.
  2. The commencement of the agreed delivery or performance periods presupposes the timely and proper fulfillment of the Buyer’s obligations to cooperate.
  3. If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of performance), we shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. If performance is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part. Any consideration already paid by the Buyer will be refunded immediately. A case of non-availability of performance shall be deemed to exist in particular if we are not supplied on time by our supplier, provided we have concluded a congruent covering transaction. Our statutory rights of withdrawal and termination as well as the statutory provisions on the exclusion of the obligation to perform (e.g., impossibility or unreasonableness) remain unaffected.
  4. The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, a reminder by the Buyer is required. If the Buyer is in default of acceptance or culpably breaches other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including additional expenses. Further claims remain reserved.
  5. The Buyer’s rights pursuant to § 9 of these GTC and its statutory rights, in particular in the event of exclusion of the obligation to perform (e.g., impossibility, unreasonableness of performance or subsequent performance), shall remain unaffected.

§ 6 Retention of Title

  1. The delivered Goods remain our property until full payment of all our present and future claims arising from the business relationship with the Buyer.
  2. The Buyer is obliged to handle the Goods subject to retention of title with due care and to adequately insure them at their own expense against loss and damage (in particular theft, fire, and water damage). The Buyer must notify us immediately of any third-party access (e.g., seizure).
  3. The Buyer is entitled, until revoked, to resell or process the Goods subject to retention of title in the ordinary course of business. The Buyer hereby assigns to us all claims in the amount of the final invoice value (including VAT) arising from resale or processing against its customers or third parties. We hereby accept the assignment.
  4. If the Goods subject to retention of title are processed, mixed, or combined by the Buyer with other items, we shall acquire co-ownership of the new item in proportion to the invoice value of the Goods subject to retention of title to the other materials used at the time of processing. The Buyer shall store the property or co-ownership free of charge on our behalf.
  5. In the event of the Buyer’s conduct in breach of contract, in particular default of payment, we are entitled to demand the return of the Goods subject to retention of title and, after issuing a warning and granting a reasonable deadline, to withdraw from the contract. The Buyer is obliged to return the Goods. The taking back or seizure of the Goods subject to retention of title shall not constitute withdrawal from the contract unless we expressly declare this in writing.
  6. If the realizable value of the securities existing for us exceeds our claims by more than 10%, we are obliged, at the Buyer’s request, to release securities of our choice to that extent.

§ 7 Limitation Period

  1. The limitation period for claims based on defects in our deliveries and services as well as for claims based on our liability for damages is one year from delivery.
  2. The statutory limitation periods shall apply in the following cases:

§ 8 Buyer’s Rights in the Event of Defects

  1. We warrant that the products we supply comply with the regulations and standards applicable in Germany. We do not assume any responsibility for compliance with other national regulations. The Buyer is obliged to check compliance with the relevant laws and standards when using the products abroad and to make any necessary adjustments.
  2. The Buyer’s rights in the event of material and legal defects (including incorrect and short deliveries as well as improper assembly or defective assembly instructions) are governed by the statutory provisions, unless otherwise specified below.
  3. As a prerequisite for asserting defect rights, the Buyer must properly comply with its statutory duty to inspect and notify of defects (§§ 377, 381 HGB). Obvious defects must be reported immediately, at the latest within one week of delivery, in text form. Hidden defects must be reported immediately, at the latest within one week of discovery, in text form. If the Buyer fails to properly inspect and/or notify of defects, our liability for the defect not reported or not reported in time is excluded.
  4. In the event of defects, we are obliged, at our option, to remedy the defect either by repair or replacement. The Buyer must return the defective Goods for inspection and grant us a reasonable period of at least 15 working days for subsequent performance. In the case of replacement, the Buyer must return the defective Goods in accordance with the statutory provisions. Subsequent performance does not include removal of the defective item or reinstallation unless we were originally obliged to do so.
  5. We shall bear the expenses necessary for inspection and subsequent performance, in particular transport, travel, labor, and material costs as well as removal and installation costs, only in accordance with the statutory provisions. If there is no actual defect, we may demand compensation from the Buyer for the costs incurred (in particular inspection and transport costs), unless the lack of defect was not recognizable to the Buyer.
  6. If subsequent performance fails or is unreasonable for the Buyer, the Buyer may withdraw from the contract or reduce the purchase price. Withdrawal and reduction must be declared in text form.
  7. The Buyer’s claims for damages or reimbursement of futile expenses shall exist only in accordance with § 9 of these GTC.

§ 9 Other Liability

  1. Unless otherwise provided in these GTC, including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
  2. We shall only be liable for damages – regardless of the legal grounds – within the framework of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, we shall only be liable:
    1. for damages resulting from injury to life, body, or health,
    2. for damages arising from the breach of an essential contractual obligation (an obligation the fulfillment of which is essential for the proper performance of the contract and on which the contracting party regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
  3. The limitations of liability set out in § 9 (2) shall also apply to third parties as well as in the case of breaches of duty by persons whose fault we are responsible for under statutory provisions. They shall not apply if we have assumed a guarantee for the quality of the Goods or if the Buyer’s claims under the Product Liability Act are affected.
  4. Due to a breach of duty not consisting of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular under §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
  5. The above provisions shall apply accordingly to the Buyer’s claims for reimbursement of expenses.

§ 10 Force Majeure

  1. In the event of force majeure affecting us or our suppliers, our performance and delivery obligations shall be suspended for the duration of the disruption. The same applies in particular to pandemics, epidemics, shortages of energy or raw materials, labor disputes, official orders, transport or operational disruptions.
  2. If a significant change in the circumstances existing at the time of conclusion of the contract occurs, as a result of which performance of the contract can no longer reasonably be expected from us, we are entitled to withdraw from the contract.
  3. Our performance of the contract is further subject to the proviso that performance does not violate national or international foreign trade regulations and that no sanctions or embargoes oppose it.

§ 11 Intellectual Property Rights, Copyrights

  1. The provision of our deliveries and services does not entail any transfer of rights of use to industrial property rights or copyrights to which we are entitled. Such transfer shall only take place on the basis of a separate agreement.
  2. In the event of infringement of property rights, we are entitled, at our discretion and within a reasonable period, either to obtain the necessary rights or to deliver an admissible alternative solution to the Buyer.

§ 12 Export Control and Compliance

The delivered products may be subject to export control regulations. The Buyer undertakes to comply with the relevant national and international regulations. The Buyer shall indemnify STROMata GmbH against all claims arising from a breach of such regulations.

§ 13 Right of Withdrawal

We are entitled to withdraw from the contract if the Buyer does not meet its payment obligations or if circumstances become known that call its creditworthiness into question.

§ 14 Confidentiality

  1. The parties undertake to treat as strictly confidential all confidential information, in particular disclosed samples, cost estimates, drawings, documents, business intentions, personnel data, solutions, data, and other know-how received from the other party in the context of the business relationship, and to use such information exclusively for the intended business purposes. The parties shall also impose this obligation on their employees and agents.
  2. The obligation of confidentiality does not apply to information that:
  1. After termination of the business relationship, all confidential information of the other party shall, at the request of the other party, be promptly returned or demonstrably destroyed, unless statutory retention obligations prevent this.
  2. The parties undertake to comply with the applicable data protection regulations and to ensure through appropriate technical and organizational measures that their employees and agents also comply with these provisions.

§ 15 Provision of Materials

If material is to be provided by the Buyer, the Buyer shall provide the material free of charge, on time, and in proper quality. The same applies to the documents and documentation required for the performance of services.

§ 16 Special Productions

  1. In the case of special productions ordered by the Buyer, the Buyer is only entitled to terminate the contract for an important reason attributable to us.
  2. If specially manufactured goods according to the Buyer’s specifications are not accepted, we are entitled, after fruitless expiry of a reasonable collection period set for the Buyer, to dispose of the items at the Buyer’s expense.

§ 17 Place of Jurisdiction and Applicable Law

  1. These GTC and the contractual relationship between us and the Buyer shall be governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
  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 from the contractual relationship shall be our registered office in Zirndorf. However, we are also entitled to bring an action against the Buyer at its general place of jurisdiction. Mandatory statutory provisions, in particular on exclusive jurisdiction, remain unaffected.

§ 18 Written Form

Amendments and supplements to these GTC must be made in writing. Oral collateral agreements are invalid.

§ 19 Final Provisions

Should individual provisions of these GTC be or become invalid, the validity of the remaining provisions shall remain unaffected. In place of the invalid provision, a regulation shall be deemed agreed that comes closest to the economic purpose of the invalid provision.