General terms of delivery and payment

§ 1       General remarks and scope

(1)     The present terms apply to all business transactions entered into by Teudeloff GmbH & Co. KG ("Teudeloff" in the following) and their customers ("customer" in the following). These terms apply only if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (Section 14 BGB), a public law entity or a special fund under public law.
(2)     These terms apply especially to contracts of sale and/or delivery of movables (“goods” in the following), regardless of whether such goods are manufactured by Teudeloff or purchased by Teudeloff from third-party suppliers (Sections 433, 650 BGB).
(3)     These terms shall also apply in their respective version as framework agreement for future contracts concerning the sale and/or the delivery of goods with the same customer without Teudeloff having to refer to these again in each individual case.
(4)     These terms shall apply exclusively to all business transactions. Any conflicting or diverging terms and conditions of the customer will not be recognized by Teudeloff, unless their application was expressly agreed to by Teudeloff. The present terms shall apply even if Teudeloff effects delivery to the customer without reservation while being aware of such conflicting, diverging or supplementary terms of the customer.
(5)     Notwithstanding anything to the contrary contained herein, separate, individual agreements concluded with the customer shall take precedence over the provisions in these terms. Such individual agreements require written form and/or Teudeloff's written confirmation to be effective.
(6)     Any legally relevant representations and notices to be made to Teudeloff by the customer after conclusion of the contract (incl. deadlines or grace periods, notices of defects, revocation of the contract or price reductions) need to be made in writing to be effective. Transmission by means of telecommunication is not sufficient. Electronic form as per § 126a BGB and text form as per § 126b BGB shall be excluded.
(7)     References to statutory provisions are for clarification purposes only. Even without such references, legal regulations and statutory provisions generally apply without limitation unless they are expressly changed or excluded in these terms.

§ 2       Conclusion of a contract

(1)     Teudeloff’s offers are without engagement. This provision also applies if Teudeloff provides the customer with catalogs, technical documentation or other product information and documents subject to retention of title and copyrights.
(2)     The placing of an order by the customer constitutes a binding offer to conclude a contract. Unless otherwise specified in the order, Teudeloff may accept the customer’s contract offer within 4 weeks upon receipt of the order.
(3)     If one of the following special quality requirements exists at individual part level, the customer shall specify this to Teudeloff in the course of the initial inquiry for a part so that details can be agreed between the contractual partners in relation to specific items:
a)    Initial sample inspection, Reports, certificates and documentation,
b)    Statistical process control / process capabilities for particular characteristics,
c)    defined failure rates at individual property level (e.g. ppm rates and sorting requirements for automated processing),
d)    other specific quality-related requirements (e.g. special or safety-critical characteristics),
e)    item-specific packaging regulations,
f)    requirements for technical cleanliness.
(4)     Delivery contracts only enter into force upon written acceptance or shipment of the goods at the latest. Transmitting acceptance via telecommunications shall be deemed written acceptance.
(5)     In the event Teudeloff uses a telecommunications or other electronic media service to conclude a contract, the customer hereby waives his right to appropriate, effective and accessible technical means for the detection and correction of type errors, disclosure of the information specified in Art. 246, Sec. 3 EGBGB (German Introductory Act to the Civil Code) and to a confirmation of receipt of the order. Any electronically transmitted order shall not be deemed received until downloaded and opened by Teudeloff.

§ 3       Delivery periods, delays in delivery

(1)     Delivery and/or performance periods and delivery and/or performance dates are agreed individually and/or specified by Teudeloff upon acceptance of the order. The beginning of the individually agreed or specified delivery or performance periods is subject to the successful clarification of all technical questions.
(2)     Teudeloff's observation of the delivery or performance periods is further subject to the customer's due and timely compliance with all contractual obligations. Teudeloff reserves the right to refuse performance in accordance with Section 320 BGB if the customer fails to render the agreed consideration.
(3)     Teudeloff shall give the customer prompt written notice in the event of failure to or delay in performance of deliveries or other obligations by sub-suppliers or subcontractors, in whole or in part, despite appropriate congruent hedging transactions, due to circumstances beyond Teudeloff’s reasonable control or acts of God, i.e. obstacles to performance occurring without Teudeloff's fault or negligence and lasting more than 14 calendar days. In this case Teudeloff may delay performance of the delivery or other obligation by a period of time equal to the duration of the obstacle to performance or revoke the contract in whole or in part on the basis of the unfulfilled part of the contract as long as the above information requirement has been met and Teudeloff has not assumed the procurement and/or production risk and the obstacle to performance is not temporary. Within the meaning of the above provisions, the following circumstances shall be deemed equivalent to acts of God to the extent these circumstances are beyond Teudeloffs's reasonable control and occur without Teudeloff's fault or negligence: strike, lockout, government intervention, energy and raw material shortages, delivery bottlenecks, business interruptions (e.g. through fire, water and machine failure) and all other interruptions occurring without Teudeloff's fault or negligence.
(4)     Commencement of default in delivery on the part of Teudeloff is subject to statutory provisions. Notwithstanding the above provision, a reminder by the customer is required for the commencement of default.
(5)     The rights of the customer set forth in Section 9 below and Teudeloff’s legal rights including, without limitation, the exclusion of contractual obligations (e.g. due to impossibility of performance, unreasonable hardship and/or provision of a remedy) remain unaffected by these provisions.

§ 4       Delivery, transfer of risk, acceptance, delays in acceptance

(1)     Delivery is effected ex warehouse, which is also the place of performance. Upon request and at the expense of the customer, the goods can be shipped to a different destination (sales shipment, Section 447 BGB). Unless otherwise expressly agreed, Teudeloff may choose the method of shipping (including, without limitation, carrier, dispatch route and packaging).
(2)     Teudeloff may perform partial deliveries, provided this does not have any negative consequences for the customer.
(3)     Teudeloff reserves the right to deliver consumables in commercially standardized quantities, i.e. short or excess deliveries, provided these deliveries remain within reasonable bounds and do not conflict with the customer's interests.
(4)     The risk of accidental loss of or accidental damage to the goods passes to the customer when the goods are handed over to the customer. In case of a sales shipment, the risk of accidental loss of or accidental damage to the goods as well as the risk of delay already pass to the customer upon delivery of the goods to the forwarder, carrier or other third party authorized to collect the goods. In the event of default of acceptance, the risk shall pass to the customer upon default.
(5)     In case the customer is in default of acceptance, fails to cooperate or is otherwise responsible for delaying Teudeloff’s delivery, Teudeloff may claim compensation for the damage incurred including any additional expenses (such as storage costs).

§ 5       Prices - terms of payment

(1)     All prices are quoted ex warehouse at the time of the order including the costs for simple packaging and subject to VAT at the rate in effect at the time the invoice is issued.
(2)     In the event of a sales shipment (Section 4, paragraph 1), the customer shall bear all shipping costs ex warehouse and any transport insurance fees if an insurance is requested by the customer. Any customs duties, fees, taxes and other public charges are borne by the customer.
(3)     Unless agreed otherwise, the agreed purchase price is due and payable within 14 days of the invoice date.
(4)     Regardless of the means of payment, payment shall be deemed received on the date Teudeloff can dispose of the amount due.
(5)     The customer is considered to be in default once the payment term specified in paragraph 3 expires. In the event of default, the customer will be charged late-payment interest at the current applicable rate. Teudeloff reserves the right to make additional claims for losses caused by default. Any claim to commercial maturity interest within the meaning of Section 353 of the German Commercial Code (HGB) remains unaffected by the above provisions.
(6)     The customer may only claim a set-off or exercise its right of retention to the extent that its claim is uncontested or has become res judicata. Nothing in these terms shall exclude any opposing rights the customer may have in the event of defective deliveries (Section 8).
(7)     Should it become apparent after conclusion of the contract that Teudeloff's claim to the purchase price is jeopardized by the customer's inability to perform (e.g. the customer files for bankruptcy); Teudeloff may refuse performance and - after setting a reasonable grace period - revoke the contract in accordance with statutory requirements (Section 321 BGB). Subject to the statutory provisions on the immediate revocation of a contract, Teudeloff may revoke a contract governing the production of unmarketable items (products made to specification) with immediate effect; the statutory regulations concerning the lack of necessity to set a deadline remain unaffected.
(8)     Provided there are already outstanding claims for payment under the ongoing business relationship with the customer, Teudeloff may refuse further deliveries until the customer has settled all claims in full. The above provision applies mutatis mutandis to any credit lines granted by Teudeloff.

§ 6       Retention of title

(1)     Teudeloff will retain legal ownership of the goods sold until full payment is received for all present and future claims arising out of the corresponding sales contracts and the current business transaction ("secured claims" in the following).
(2)     Any goods subject to retention of title may not be pledged or offered as security to third parties by the customer until all secured claims have been paid in full. The customer shall notify Teudeloff immediately of any attempt by third parties to seize such goods.
(3)     Any breach of contract on the part of the customer including, without limitation, nonpayment of the payable purchase price, shall authorize Teudeloff to revoke the contract in compliance with statutory provisions and demand the return of the goods sold on the basis of the retention of title and Teudeloff's revocation of the contract. If the customer fails to pay the payable purchase price, Teudeloff may only exercise the aforementioned rights after having set a reasonable grace period unless such a grace period can be dispensed with in accordance with statutory requirements.
(4)     The customer may resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following supplementary provisions apply.
a)    Teudeloff retains title to the goods supplied even though they have been processed, blended or combined in such a way that they now form part of or are converted into a new product, whereby Teudeloff shall be considered as manufacturer. In case proprietary rights of third parties continue after such processing, blending or combination, Teudeloff acquires joint title to the new product in proportion to the invoice values of the processed, blended or combined goods. In all other respects, the same provisions that apply to the goods delivered subject to retention of title shall also apply to the new product.
b)    Any claims against third parties arising out of the resale of Teudeloff's goods or the newly created product shall be considered assigned to Teudeloff by the customer by way of security either in full or in proportion to the value of the joint title as specified in the provisions above. Teudeloff accepts the assignment. The contractual obligations of the customer contained in paragraph 2 shall also apply with respect to the assigned claims.
c)    The customer remains entitled to collect claims from resale. Teudeloff shall not collect such claims as long as the customer meets its financial obligations, does not default on its payments, does not file for bankruptcy and as long as there is no other indication of the customer's inability to fulfill its contractual obligations. Should the customer fail to meet the above requirements, Teudeloff may require the customer to disclose the assigned claims and the corresponding debtors as well as all information necessary to collect such claims, submit the necessary documents and notify the debtors (third parties) concerned of the assignment.
d)    In the event the realizable value of these securities exceeds Teudeloff's claims by more than 10 %, Teudeloff shall, upon request of the customer, release securities. Teudeloff may choose the securities to be released at its own discretion.

§ 7       Property rights, provision of documents

(1)     The customer shall inform Teudeloff without delay of any property right claims of third parties pertaining to the products delivered by Teudeloff. Teudeloff may, but is not obliged to, defend these rights at its own cost and for its own benefit.
(2)     The customer warrants that any accompanying goods, services and documentation provided by the customer are free of third-party rights. The customer shall indemnify Teudeloff against any claims of third parties arising out of the infringement of third-party rights, unless the customer cannot be held responsible for this legal defect.
(3)     By providing documents to Teudeloff, the customer grants Teudeloff the non-exclusive right to use these documents for the contractually agreed purposes anywhere and for an unlimited period of time. In the event of product inquiries based on documents provided by the customer such as drawings and specifications (parts made to order), Teudeloff may provide these documents to upstream manufacturing companies to complete the inquiry process and perform the contract through sub-suppliers. Should the customer demand changes to the specifications or additional specifications when inquiring about parts made to order without making these changed or additional specifications or drawings available to Teudeloff, Teudeloff may change or amend the existing drawings or specifications accordingly.

§ 8       Claims for defects of the customer

(1)     Unless otherwise provided below, the rights of the customer in the event of material and/or legal defects (including wrong or short delivery, incorrect installation or defective installation manual) are subject to statutory requirements.
(2)     The legal basis for any liability for defects on the part of Teudeloff shall be the agreement made concerning the quality of the goods. Agreements on the quality of the goods include all product descriptions and specifications which are either contained in Teudeloff's catalogs or provided to Teudeloff by the customer and expressly approved by Teudeloff.
(3)     Any claim made by the customer based on any defect in the quality or condition of the goods is subject to the customer having fulfilled its legal obligations to examine the goods upon delivery and notify Teudeloff of any defects (sections 377, 381 HGB). Any defect discovered during examination or later shall be notified to Teudeloff in writing without delay. Such notice shall be deemed given without delay if delivered or mailed within two weeks. Without prejudice to the above examination and notification obligations, the customer shall inform Teudeloff in writing of any obvious defects (including wrong and short shipments) by mailing a corresponding notice within two weeks after delivery. In the event the customer fails to duly observe its examination and/or notification obligations, Teudeloff will not accept liability for any defects not notified to it.
(4)     Should the goods delivered be defective, Teudeloff reserves the right to choose an appropriate remedy either by repairing the defect (rectification) or providing goods free of defects (replacement delivery). However, nothing in this agreement shall exclude or in any way limit Teudeloff's right to refuse the provision of a remedy in accordance with applicable laws.
(5)     Teudeloff may make the provision of the remedy owed to the customer dependent on whether the customer pays the payable purchase price. The customer may, however, withhold a reasonable proportion of the purchase price.
(6)     The customer shall give Teudeloff a reasonable period of time and the opportunity to provide the required remedy including, without limitation, returning the defective goods to Teudeloff for examination purposes. In the event of replacement, the customer shall return the defective goods to Teudeloff in accordance with statutory requirements. Any remedy provided by Teudeloff does not include the removal nor the reinstallation of the defective goods unless the installation was originally carried out by Teudeloff.
(7)     In the event the goods are defective, all costs incurred during the examination of the goods and the provision of a remedy including, without limitation, transport, travel, work and material costs shall be borne by Teudeloff. Should the claim of the customer turn out to be unjustified, Teudeloff  may demand reimbursement of all costs incurred in connection with the customer's claim.
(8)     In the event Teudeloff fails to remedy a defect or a reasonable grace period set by the customer expires without any results or can be dispensed with in accordance with statutory provisions, the customer may revoke the contract or reduce the purchase price. The customer has no right to revoke the contract if the defect is immaterial.
(9)     Except as expressly provided in Section 9, any claims of the customer for damages and/or for reimbursement of futile expenses are hereby excluded.

§ 9       Other liability

(1)     Unless otherwise specified in these terms and conditions including the following provisions, Teudeloff shall be liable for any breach of contractual or non-contractual obligations in accordance with statutory requirements.
(2)     Nothing in these terms shall exclude or limit Teudeloff‘s liability for claims based on willfulness or gross negligence howsoever arising. In the event of ordinary negligence, Teudeloff shall only be liable for
a)    death or personal injury;
b)    material breaches of contractual obligations (obligations essential for the proper performance of the contract the compliance with which the contracting partner may generally trust in). In such a case Teudeloff's liability shall, however, be limited to the foreseeable damage normally covered by a contract.
(3)     Notwithstanding the provisions in paragraph 2, Teudeloff does not exclude or limit liability for fraudulent concealment of defects or for any warranties or representations made by Teudeloff as to the nature or quality of the goods. The same applies to claims of the customer made on the basis of the German Product Liability Act (ProdHaftG).
(4)     In the event of a breach of contractual obligations not caused by a defect, the customer may only revoke or terminate the contract if Teudeloff is responsible for this breach. The right of the customer to terminate the contract at any time (including but not limited to the rights granted in sections 650 and 648 BGB) is hereby excluded. In all other respects, the statutory provisions apply.

§ 10       Limitation of actions

(1)     Notwithstanding the provisions in Section 438, paragraph 1, number 3, BGB, the standard limitation period for claims based on material or legal defects shall be one year from the delivery date. As far as acceptance has been agreed, the limitation period shall begin with the acceptance.
(2)     Any claims related to a building or a product specifically designed for use in construction, which was used in and caused a defect in a building (construction material), are subject to an extended limitation period of five years from the delivery date in accordance with statutory requirements (Section 438, paragraph 1, number 2, BGB). The special statutory requirements governing third parties' proprietary claims for the return of property (Section 438, paragraph 1, number 1, BGB), fraudulent concealment by the seller (Section 438, paragraph 3, BGB) and recourse claims in case of deliveries to consumers (Sections 478, 445a, 445b BGB) remain unaffected.
(3)     The above limitation periods specified in the German sale of goods laws shall also apply to all contractual and non-contractual claims for damages made by the customer based on defective goods, unless applicable legal provisions require shorter limitation periods in individual cases (sections 195, 199 BGB). Irrespective of the above provisions, nothing in this agreement shall preclude or in any way limit the limitation periods for claims under the German Product Liability Act. In all other respects, claims made by the customer for damages under Section 9 are subject to the applicable statutory limitation periods.

§ 11       Applicable law and place of jurisdiction

(1)     These business transactions and all legal relationships between Teudeloff and the customer are subject to the laws of the Federal Republic of Germany under exclusion of all international and supranational (contractual) legal systems including, without limitation, the UN Convention on Contracts for the International Sale of Goods. The legal requirements and effects of the retention of title clause under Section 6 are subject to the laws applicable at the location of the goods to the extent the laws of the Federal Republic of Germany are invalid or ineffective.
(2)     In the event the customer is a businessperson within the meaning of the German Commercial Code, a public law entity or a special fund under public law, the exclusive and international place of jurisdiction for all disputes arising out of or in connection with the contract shall be the court of competent jurisdiction at Teudeloff’s head office in Pfaffenhofen. Teudeloff does, however, reserve the right to bring its claims against the customer at the general place of jurisdiction of the customer.

Teudeloff GmbH & Co. KG, Pfaffenhofen, April 2019