THESEO Deutschland GmbH sales and delivery conditions.

Section 1 Area of application and contract conclusion

1. These sales and delivery conditions (the "terms and conditions") apply to all deliveries, services and offers between us and the buyer. Deviating terms and conditions and counter-confirmations by the buyer with reference to its own terms and conditions or purchasing terms are hereby rejected. Deviations from our sales and delivery conditions apply only if they are expressly confirmed by us in writing. These conditions also apply for future business, even if you are not referred to again or if their validity is expressly agreed, insofar as they were received by the buyer for a previous transaction.

2. All offers and information are subject to change and are non-binding. Orders and agreements shall only be binding upon us through our written confirmation or confirmation by authorised representatives or by delivery under these terms and conditions. Oral side agreements and guarantees require our written confirmation to become effective.

Section 2 Prices

Unless otherwise specified or agreed as a fixed price, we are bound by the price agreed on the basis of our offer for four weeks from the date of confirmation of the order. In the case of deliveries that are to be made after this period, we are entitled to corresponding price increases, if the costs for raw materials, energy, wages, salaries, freight, customs duties, levies, etc. have increased, making production of the deliveries more expensive. The buyer is to be informed of a price increase in advance and can object to the price increase within seven calendar days after receipt of notification. In case of objection, we have the choice of either withdrawing from the contract or delivering at the price originally agreed. We must inform the buyer immediately of our decision. If we choose to withdraw from the contract, further claims by the buyer are excluded. All prices are exclusive of packaging.

Section 3 Delivery

1. The delivery option is reserved. Delivery dates or deadlines, which can only be agreed in writing, are subject to this reservation.

2. If not otherwise agreed, the delivery shall be EXW Wietmarschen, even if we deliver free of charge.

3. In the absence of any other agreements, planned delivery dates are not binding. Where there is no special agreement, the delivery shall be made in approximately equal monthly instalments; for the delivery of larger quantities, a prior agreement is required even if acceptance as required was agreed within a fixed period.

4. In the event of our default, the buyer has to set an appropriate grace period. Only after expiry of this grace period can it withdraw from the contract, if the goods have not been reported to it as ready for dispatch by this point in time.

5. Force majeure, operational disturbances, delay in delivery by the supplier, difficulties in transport procurement, traffic disruptions, governmental measures, strikes, lock-outs and other events that lead to impairment/prevention or significant restrictions regarding delivery entitle us to an appropriate extension of the delivery period including the required lead time or to withdraw from the contract. The same applies to the events in question in the area of our suppliers. The buyer can ask us for a statement as to whether we shall withdraw or deliver within a reasonable period; it may, in the case of non-declaration, itself withdraw from the contract.

Section 4 Payment

1. Until fulfilment of all claims (including all current account balance claims) that exist for our part on these legal grounds against the buyer now or in the future, we are entitled to the securities regulated here, that shall be released to us upon request at our discretion, to the extent that their value sustainably exceeds our existing claims by more than 20%.

2. The goods remain the property of the seller. The buyer is revocably entitled to sell the reserved goods in the ordinary course of business under retention of title. Pledging or transfer by way of security are not permitted. The buyer already assigns claims from the resale or other legal grounds including, but not limited to, claims from a recovery order for claims from the resale, insurance or unlawful act with regard to the resulting claims from reserved goods (inclusive of any current account balance claims) in advance and without a special agreement in an individual case in full to us now. We revocably authorise the buyer to collect the claims assigned to us in the name and on behalf of the buyer. In order to ensure this pre-assignment, the buyer is to calculate the resale of our goods separately from other goods. In the case of further sale, the buyer is to reserve its conditional ownership of the reserved goods from its customers until the purchase price is paid in full. In the event of third party access to the reserved goods, the buyer has to indicate our property and notify us immediately. 

3. In the case of processing, combining and mixing with other goods by the buyer, we shall acquire co-ownership of the new object in proportion of the invoice value of the reserved goods to the invoice value of the other goods used. If our co-ownership due to combination or mixing expires, then the buyer already transfers its ownership rights to the new stock or item to us now to the extent of the invoice value of the reserved goods and shall safeguard them for us free of charge. Our resulting joint ownership rights shall be regarded as reserved goods to which the provisions of paragraph 2 shall apply mutatis mutandis.

Section 5 Reservation of ownership

1. Until fulfilment of all claims (including all current account balance claims) that exist for our part on these legal grounds against the buyer now or in the future, we are entitled to the securities regulated here, that shall be released to us upon request at our discretion, to the extent that their value sustainably exceeds our existing claims by more than 20%.

2. The goods remain the property of the seller. The buyer is revocably entitled to sell the reserved goods in the ordinary course of business under retention of title. Pledging or transfer by way of security are not permitted. The buyer already assigns claims from the resale or other legal grounds including, but not limited to, claims from a recovery order for claims from the resale, insurance or unlawful act with regard to the resulting claims from reserved goods (inclusive of any current account balance claims) in advance and without a special agreement in an individual case in full to us now. We revocably authorise the buyer to collect the claims assigned to us in the name and on behalf of the buyer. In order to ensure this pre-assignment, the buyer is to calculate the resale of our goods separately from other goods. In the case of further sale, the buyer is to reserve its conditional ownership of the reserved goods from its customers until the purchase price is paid in full. In the event of third party access to the reserved goods, the buyer has to indicate our property and notify us immediately. 

3. In the case of processing, combining and mixing with other goods by the buyer, we shall acquire co-ownership of the new object in proportion of the invoice value of the reserved goods to the invoice value of the other goods used. If our co-ownership due to combination or mixing expires, then the buyer already transfers its ownership rights to the new stock or item to us now to the extent of the invoice value of the reserved goods and shall safeguard them for us free of charge. Our resulting joint ownership rights shall be regarded as reserved goods to which the provisions of paragraph 2 shall apply mutatis mutandis. 

4. If it becomes apparent that our purchase price claim is at risk due to lack of performance by the buyer, we can revoke further sale and/or collection authorisation and disclose the assignment of the buyer's claims to third parties from the resale or on other legal ground and demand direct payment to us. If our purchase price claim is at risk due to lack of performance by the buyer or behaviour by the buyer that is contrary to contract, we are entitled under the prerequisites of Section 323 BGB [German Civil Code] to withdraw and to take back the goods subject to retention of title. The buyer hereby declares its consent to the persons assigned by us to collect such goods entering or driving onto the premises and buildings on or in which the goods subject to retention of title are to be found for this purpose. The buyer is to provide all necessary information and documents to us at any time, so that the claims assigned in advance can be realised from resale.

Section 6 Notice of defects, claims for defects, damages

1. Only the buyer is entitled to defect liability claims and these cannot be assigned. Complaints regarding the number, identity and condition of the packaging units/packages are to be made to the transport person immediately upon delivery and noted on the delivery note and freight papers; later complaints of this kind are excluded. Complaints regarding the quality, number and correctness of the delivered goods are to be made to us without delay, though at the latest within 3 working days, and in the case of hidden defects immediately after their discovery, in writing and stating the delivery note number; otherwise the goods shall be deemed to have been approved. Our certificates of analysis do not exempt the buyer from this obligation to examine for and notify of defects. If the buyer does not immediately provide opportunity to investigate the defect in question, all defect claims expire. Returns can only be made with our prior explicit consent. Notices of defect are not exempt from the obligation to pay.

2. Justified and timely notices of defect shall be corrected by subsequent performance, if we are not entitled to refuse subsequent performance according to the legal requirements. In the event of refusal, failure or unacceptability of fulfilment, we have the right of withdrawal or reduction at our own discretion.

3. If we are obliged to pay damages in accordance with the statutory regulations and/or in accordance with these conditions due to reasons other than intent or gross negligence, our liability is limited in accordance with the following conditions:
Liability exists only in the case of infringement of essential contractual duties and is always limited to the typical foreseeable damage upon conclusion of the contract. This limitation shall not apply in the case of injury to life, body and health. If the damage is covered by an insurance policy concluded by the buyer for such a case of damage (excluding fixed-sum insurance) and can be regulated, we are only liable for any resulting economic disadvantages of the buyer, in particular higher insurance premiums or interest damages up until the claims are settled by the buyer's insurer. There is no liability for slightly negligent damage (except in the case of injury to life, body and health) due to a defect in the purchased item. Our strict liability under the Product Liability Act remains unaffected in the case of fraudulent concealment of the defect and the assumption of the procurement risk or a separate warranty. In the case of a warranty, we are liable only insofar as the warranty should protect the buyer against the damages. In the area of application of the CISG, we are not obliged to pay damages, if we exonerate ourselves according to Art. 79 CISG or provide evidence that the in-house obstacle to performance was neither culpably set nor culpably not removed by us or an employee.

4. Defects liability claims shall become statute-barred in 12 months, except in cases of liability for damages from injury to life, body or health, in the case of an intentional or grossly negligent breach of duty or in the case of fraudulent concealment of a defect.

Section 7 Patent law, intellectual property, protection rights

The buyer of the goods is obliged to check whether the protective rights of third parties are infringed upon due to use. We do not assume any guarantee for patent-free use with the delivery of our products. In the case of export of the goods by the buyer or its customers to territories outside of Germany, we do not accept any liability for the infringement of the protective rights of third parties through our goods. The buyer is obliged to compensate for the damage caused to us through the export of goods that were not expressly delivered for export by us.

Section 8 Consultation

Our application advice is provided to the best of our knowledge and on the basis of the current state of technology and of our own developments and findings. We are liable for our advice under the appropriate application of Section 6 para. 3 of these terms and conditions; this does not release the buyer from the duty of care to verify our application suggestions in regard to the respective operating conditions and the suitability of the goods through their own tests.

Section 9 Place of fulfilment, place of jurisdiction

1. The place of performance for each delivery or performance is Wietmarschen and Wietmarschen for payments. The court of jurisdiction is Nordhorn. These terms and conditions and the entire legal relationship shall be governed by the law of the Federal Republic of Germany

2. If one or more provisions of these terms and conditions or a provision within the scope of other agreements should be ineffective, the validity of the remaining provisions or agreements shall not be affected.

THESEO Deutschland GmbH