General Purchase Conditions of Basalt-Actien-Gesellschaft and its affiliated companies

1. General terms and scope

1.1 The General Purchase Conditions shall apply in transactions between the client and companies, legal entities under public law and special funds under public law (hereinafter: “partners”) for orders and the placing of orders with regard to the purchase of moveable assets (hereinafter: “goods” or “products”) and for the placing of orders regarding the provision of works and services (purchase, work and service contracts are hereinafter referred to together as: “deliveries and services”) between the client and the partner (hereinafter referred to jointly as the “parties”).

1.2 These General Purchase Conditions are applicable for all deliver-ies and services provided by the partner unless otherwise agreed in a separate agreement in an individual case. If the order placed by the client is confirmed by the partner in deviation from the client’s terms or with supplementary provisions to the client’s terms, only these General Purchase Conditions of the client shall apply in such cases too, even in cases in which the client does not register an objection. Therefore, deviations or additions shall only be valid insofar as they have been expressly confirmed by the client.

1.3 The acceptance of deliveries and services from the partner or payment for deliveries and services shall not constitute acceptance within the meaning of 1.2, even in the event that the acceptance or payment takes place in knowledge of contradictory or supplementary contractual terms of the partner.

2. Conclusion of a contract and amendments to the contract

2.1 Verbal agreements of any kind, including subsequent changes and additions to these General Purchase Conditions, must be con-firmed by the client in text form in order to be valid.

2.2 Quotations and costs estimates are binding and are not to be remunerated, like other pre-contractual expenses on the part of the partner, unless otherwise expressly agreed.

2.3 When providing a quotation, the partner shall comply with the client’s enquiry and expressly and clearly point out any deviations.

2.4 In the event that, after conclusion of a contract for works or services, the partner deems amended services to be necessary or amended services are required by the client, the partner shall inform the client about this, providing all details, without undue delay.

2.5 In the event of the conclusion of a works contract, if the client requests a change to the agreed work result pursuant to Section 631 (2) Civil Code, the parties shall endeavour to reach an agreement regarding the change and the reduced or increased remuneration associated with the change. The partner is obliged to provide a quotation for the increased or reduced remuneration unless it is unreasonable to expect the partner to implement the change. In the event the partner asserts internal processes for an alleged unreasonableness of a change pursuant to Sentence 1, it shall bear the burden of proof for this.

3. Terms of goods and services

3.1 In principle, the partner shall be obliged to fulfil the contract personally. The consent of the client in text form is required to transfer its obligation to perform to a third party. In particular, the delivery or service shall comply with the recognised rules of technology, the applicable technical standards, guidelines and safety provisions.

3.2 The delivery and service shall be provided at a place of destination to be specified by the client, where possible taking into consideration instructions that have been issued for the unloading/offloading (place of fulfilment). If acceptance takes place at a different location to the place of fulfilment, the client may require the partner to deliver the goods/service without undue delay to the place of fulfilment or to bear the additional costs incurred from the delivery/service provision at a different location or a different time to that which was agreed. 3.5 Sentence 1 and 7.1 remain unaffected.

3.3 The partner shall cover the necessary expenses for the provision of the service, for example travel costs, provision of the tool and similar.

3.4 Agreed dates and deadlines are binding.

3.5 The receipt of the goods at the place of destination specified by the client shall be deemed authoritative for compliance with the date or deadline. If delivery with assembly and/or a different additional service is agreed, handover of the defect-free goods after proper completion of the assembly and/or additional service shall be authoritative for com-pliance with the deadline. For works contract services, the provision of defect-free works shall be authoritative. In the event of works contract services, the time of the provision of the service shall be authoritative. In the event that, in an individual contract or otherwise by way of derogation from this, a debt collectible by the creditor within the mean-ing of Section 269 (2) Civil Code has been agreed, the partner must provide the goods promptly, taking into consideration the time agreed with the client for loading and shipment.

3.6 If the partner recognises that performance in accordance with the deadline will not be possible in full or in part or if it predicts difficulties with regard to production, primary material procurement or similar circumstances which may prevent it from completing the delivery or service to the agreed quality standard, the partner shall inform the client about this without undue delay, specifying the reason for the hindrance and the expected duration of the delay. In this case, the client’s claims shall be governed according to 9.15, 11.3, 11.4 and the statutory regulations.

3.7 If the partner is hindered in providing a service as part of a works contract or service contract due to circumstances arising from the client’s service or risk area, the partner shall notify the client of this without undue delay in order to provide the client with an opportunity to provide a remedy. The provisions of Section 642 and 645 Civil Code remain unaffected.

3.8 The unconditional acceptance of the delayed delivery or service does not imply a waiver of the claims to compensation which the client is entitled to due to the delayed delivery or service.

3.9 Early deliveries or services or partial deliveries or services shall, as a rule, not be permitted unless the client has expressly consented thereto. They shall be specified as such.

3.10 For every delivery or service, the partner shall prepare a delivery note or service document with precise details of the quantity, nature, weight, size etc. and provide this to the client. The values established by the client during the incoming goods inspection shall determine the quantities, weights and measurements subject to the reservation of proof of different values being provided.

3.11 Unless otherwise agreed in an individual case, the client shall receive non-exclusive rights of use, unlimited by time and location, to software which is part of the scope of the delivery of the product.

3.12 This also includes sublicensing, rental or any other form of passing on of the software by the client to companies affiliated with the client within the meaning of Section 15 et seq. Companies Act (AktG), as well as sub-contractors of the client which are entrusted with the provision of deliveries and services, directly or indirectly for the client, to third parties and, in connection with this, require rights of use to the software. Further, the permissible use includes the passing on of the software as part of an incorporated item to customers and the granting of rights of use thereto insofar as this is necessary to use the incorporated item.

4. Force majeure

4.1 In the event of force majeure which makes it significantly harder for one party to provide services, temporarily prevents the proper performance of the contract or makes this impossible, the affected party shall be released from its duty to perform for the period for which it is unable to provide its services due to the occurrence of these events.

4.2 Force majeure includes all circumstances independent of the will and influence of the parties, such as natural catastrophes, war and other military conflicts, internal unrest, terrorist attacks or other circumstances that are unforeseeable, significant and are not the fault of the parties and occur following the conclusion of the respective contract and fall outside their area of influence.

4.3 The affected party will promptly notify the other party without undue delay after the occurrence of the force majeure event about the nature of the event, the time, the date of the occurrence and the expected effects of the event on its ability to meet its contractual obligations. The affected party shall inform the other party without undue delay after the end of the force majeure event about the termi-nation of this event and resume the fulfilment of its obligations subject to termination or withdrawal pursuant to 4.4.

4.4 Agreed service and delivery deadlines shall be extended appro-priately in accordance with the duration of the force majeure. For the case that continuing to observe the contract during the period of the delay to the delivery or service caused by force majeure is unreasonable for one of the parties, this party shall be entitled to withdraw from the contract or terminate it for good cause without compliance with a notice period.

5. Invoice

5.1 Invoices shall be issued for the completed deliveries and services which meet the respective valid statutory requirements for invoices pursuant to VAT law in the states in which the invoiced deliveries and services are subject to VAT law.

5.2 Upon request by the client, invoices and proof of service provi-sion shall be provided in digital format in a structured data format, e.g. PDF, X-Rechnung or ZUGFerD.

5.3 If the completed deliveries and services are part of a series of transactions within the meaning of the Value Added Tax Act (UStG), the partner shall refer the client to this.

6. Pricing and payment terms

6.1 If no special agreement has been concluded, the prices that have been agreed are quoted as net prices at the place of destina-tion specified by us, including packaging, assembly and other expenses, as well as costs for the provision of any relevant test certificates insofar as testing has been agreed or is standard with regard to the goods which are the subject matter of the contract.

6.2 Unless otherwise agreed, the prices are fixed prices.

6.3 In the case of bank transfers, payment shall be deemed to have been made in a timely manner if the client’s transfer order is received by its bank before the payment deadline; the client is not responsible for delays by the banks involved in the payment process.

6.4 Payments by the client do not constitute acceptance, in particular with regard to the conditions and prices of the partner and the nature and scope of its service provision.

7. Transfer of risk and acceptance

7.1 The delivery or service at a place that differs from the place of fulfilment pursuant to 3.2 does not bring about a transfer of risk on the part of the client if this location accepts the delivery or service. Insofar as an assembly or construction obligation has been agreed, the transfer of risk only takes place after test commissioning for the purposes of demonstrating proper operation to the client provided that the nature of the case allows this.

7.2 Unless otherwise agreed between the parties, formal acceptance is required for the partner’s works service provision; the acceptance is a prerequisite for the partner’s payment entitlement to become valid. Acceptance requires minutes to be taken in all cases, which must be signed by both parties. Verbal agreements or implied agreements on the basis of commissioning shall be excluded. Section 640 (2) Civil Code remains unaffected.

7.3 For works contracts, any defects which are identified must be documented on acceptance. Defects which are identified shall be remedied by the partner without undue delay. The successful remedying of the defects must be documented and marks the start of the limitation period for this.

8. Offsetting, assignments and rights of retention

8.1 The client reserves all statutory rights to offset and rights of retention, as well as the right to assert claims for breach of contract without any complications. The offsets are, in particular, not only limited to undisputed and legally established claims of the partner.

8.2 The client is entitled to offset against all claims of any kind the partner has against it which are owed to the client and companies affiliated with the client within the meaning of Sections 15 et seq. AktG insofar as the partner is aware that the company in question is a company affiliated with the client.

8.3 The client is entitled to withhold due payments in the amount and insofar as it is still entitled to claims for incomplete or defective services against the partner.

8.4 The partner shall not assign its claims against the client without the express consent of the client. This consent must be provided in text form.

9. Defects, subsequent performance, contractual penalty, damages

9.1 The client shall be entitled to full statutory claims for defects.

9.2 If the partner does not provide services from a service contract in accordance with the contract or, insofar as no contractual agreements have been made on the quality of the service, not to a quality that is standard for services of this kind and which the client may expect according to the type of the service, the client is entitled to require subsequent performance with an appropriately short grace period. If the partner fails to ensure this subsequent performance by this deadline, the client may reduce the remuneration. The reduction shall, insofar as this is possible, be determined by means of estimation. It is not necessary to set a deadline if the partner refuses to provide sub-sequent performance or if the subsequent performance fails or is unreasonable for the client. The assertion of claims for damages remains unaffected.

9.3 Defects shall be reported by the client without undue delay after being discovered.

9.4 The statutory provisions (Sections 377, 381 Commercial Code) apply to the commercial duty of inspection and notification of defects, with the following proviso: The client’s obligation to inspect shall be limited to defects which become apparent during the incoming goods inspection under external inspection including the delivery documents (e.g. transport damage, incorrect delivery and short delivery). Insofar as acceptance has been agreed, there shall be no obligation to inspect. In other respects, it depends on the extent to which an investigation is feasible in the ordinary course of business, taking into consideration the circumstances of the individual case. The above does not affect the client’s duty to give notice of non-conformity regarding defects that are discovered at a later time.

9.5 The client reserves the right to determine the type of the supplementary performance.

9.6 The place of performance for subsequent performance is the situs of the matter in accordance with the provisions.

9.7 In the event that the partner does not commence remedying the defect after the client’s request to remedy it, in urgent cases after having set a suitably short grace period, especially to ward off acute danger or to prevent greater damages, the client is entitled to undertake such remedy itself or to have it undertaken by a third party at the expense of the partner.

9.8 The partner shall bear the costs for testing and subsequent performance, even if no defect is to be found in the end. The client’s liability for damages in the event of an unjustified request for rectification of defects remains unaffected. In this respect, however, the client is only liable if it has recognised or has grossly negligently failed to recognise that there was no defect.

9.9 The limitation period for claims based on material and legal defects is 3 years – except in cases of fraudulent misrepresentation – unless the item has been used in a building construction in accordance with its customary use and caused the defectiveness thereof. Section 7 (transfer of risk) shall be definitive for determining the start of the limitation period. In the event of drop-shipping, the limitation period starts with the notice of defects by the recipient of the delivery or service. The client’s rights of recourse within the framework of liability for defects against the partner (Section 445a Civil Code) shall expire 2 months at the earliest after fulfilment of any claims for liability for defects by the client to its customers. Any statutory limitation periods which are longer shall take precedence.

9.10 If the partner performs its obligation to effect supplementary performance by supplying a substitute product, the limitation period of the goods delivered in substitution shall start to run anew after delivery thereof unless, when effecting the supplementary performance, the partner explicitly and appropriately made the reservation that the substitute delivery was effected purely as goodwill, to avoid disputes or in the interests of continuation of the delivery relationship.

9.11 Within the framework of subsequent performance, the partner shall bear the transportation costs, road costs, labour costs, installa-tion costs, expansion costs and material costs. If, as a consequence of a defective delivery in connection with the repair, replacement or new production of the contractual object, costs and expenses are incurred by the client which the client could have acquired more cheaply, in particular costs and expenses for sorting, for incoming inspections which exceed the normal scope, for the investigation and analysis of the defect and costs for the use of external or in-house personnel, the partner shall bear these costs unless it is not responsible for the defect.

9.12 The partner shall be liable for its own negligence, as well as that of its vicarious agents, without limitation in accordance with the statutory provisions.

9.13 The partner shall indemnify the client against any third-party claims arising from the infringement of the rights of these third parties in connection with its delivery or service, including any costs associated with defending claims, unless the partner proves that it is not responsible for the infringement. In addition, the partner will provide to the client the information and documents relating to its deliveries or services which are required for the defence of such third-party claims without undue delay upon request.

9.14 For indemnification claims under 9.13, 10.1 and 19.3, the limitation period shall be three years. Limitation periods for indemnification claims start at the end of the year in which the claim occurred and the client became aware of circumstances justifying the claim or the year and the identity of the debtor or in which it should have become aware of this bar gross negligence. Any statutory limitation periods which are longer shall take precedence.

9.15 In the event of a delay in service provision or delivery, the client shall be entitled to demand a contractual penalty in the amount of 0.1 % of the net order value per working day of the delay until final payment is received, but amounting to no more than 5 % of the net order value. The client’s entitlement to compensation for the damages which exceed the contractual penalty remains unaffected. The contractual penalty is offset against the compensation for the delay to be paid by the partner but can also be claimed as a minimum amount.

9.16 If the partner has demonstrably made an agreement on the occasion of the conclusion of the contract for deliveries and services that constitutes an impermissible restriction on competition, it shall pay 10 % of the invoice amount to the client as a lump sump unless a different damage amount is proven.

10. Product liability and recall

10.1 The partner is responsible for all claims asserted by third parties for personal injury or property damage attributable to a defective product delivered by it and it is obliged to indemnify the client against the liability resulting from this. If the client is obliged to issue a recall of the item to third parties due to a defect in a product delivered by the partner, the partner shall bear all costs associated with the recall. In cases of fault-based liability, however, this only applies if and insofar as the partner is at fault. Insofar as the cause of the damage is in the field of responsibility of the partner, it shall bear the burden of proof that it is not at fault. Shared fault on the part of the client shall be taken into consideration in the amount of the costs to be borne by the partner pursuant to Section 254 Civil Code.

10.2 In the cases set out in 10.1, the partner shall cover all the costs and expenses, including the costs in the event of any legal action unless the costs are not necessary and appropriate overall.

11. Withdrawal and termination

11.1 The client is entitled, beyond the statutory rights, to withdraw from the contract, and in the event of a service or works contract to extraordinary termination without notice, in the event that a significant deterioration in the financial circumstances of the partner occurs or threatens to occur and this threatens to affect the fulfilment of a delivery or service obligation to the client.

11.2 Further, the client is entitled to withdraw from the contract, and in the event of a service or works contract to extraordinary termination without notice, in the event that the partner becomes insolvent, the partner stops making payments, the partner becomes insolvent pursuant to Section 18 Insolvency Code (InsO) or the initiation of insol-vency proceedings is refused due to lack of assets. Alternatively, the client is entitled to require a fulfilment or warranty bond by a German bank.

11.3 The delay consequences are determined subject to the statutory regulations in accordance with the provisions of these General Purchase Conditions. In the event of the presence of the other prerequisites for the right of withdrawal or termination, the client may restrict the withdrawal or termination to the part of the delivery or service not performed properly.

11.4 Insofar as the client withdraws from the contract due to the abovementioned contractual rights of withdrawal or termination or terminates the contract, the partner may reimburse the damages incurred by the client in connection with this unless it is not responsible for the occurrence of the right of withdrawal or termination.

12. Performance of work

12.1 Partners which carry out work on the company premises of the client in performance of the contract shall comply with the valid laws and provisions, as well as the company regulations of the client.

12.2 The partner is obliged to nominate a responsible individual for the order completion and this individual will comply with the obligation to provide supervision and monitoring. The responsible individual for the partner is obliged to talk to the contact to be appointed by the client before carrying out the work and to take suitable protective measures.

12.3 The partner is responsible for the training and safety of its employees and commissioned sub-contractors, as well as for protect-ing sources of hazards with regard to third parties. The partner may only use employees with sufficient specialist qualifications who use equipment which is safe for the site in question on the company premises. Accidents that occur on the client’s premises must be re-ported to the client immediately.

13. Documents and confidentiality

13.1 All commercial and technical information made available by the client (including features, even if these are indirectly derivable from objects, documents or software that have been provided, and any other knowledge or experience) must be kept confidential for as long as and to the extent that it is not proven to be public knowledge and may only be made accessible to those persons, at partner’s company premises, who need to use it for the purpose of supplying the delivery or service to the client and who have likewise been bound to confidentiality.
The partner shall require its vicarious agents to maintain confidentiality accordingly.

13.2 Without prior consent from the client in text form, such information, except for deliveries or services to the client, may not be duplicated or used for commercial purposes. On request by the client, all information that has come from the client, including any copies or records that are made, must be returned to the client without undue delay and in full or destroyed and loaned items must be returned to the client without undue delay and in full. The client reserves all rights to such information, including copyright and the right to file for indus-trial property rights such as patents, utility models etc. In the event this information is provided to the client by third parties, this reservation of rights also applies with regard to such third parties.

13.3 Products manufactured in accordance with documents drafted by the client, such as drawings, models and similar, or in accordance with confidential specifications of the client or using tools belonging to the client, may not be used by the partner itself or offered or delivered to third parties. This also applies accordingly to print jobs of the client.

14. Briefing on sites and other aspects

14.1 The partner shall be entitled, upon request by the client, to visit the relevant sites and buildings for the service provision as well as to view other features, facilities and objects before conclusion of the contract, familiarise itself with them and clarify any issues with the client before the order commences. The client is obliged to enable the partner to carry out this inspection within the framework of the company’s activities and to provide the necessary information for submitting an offer insofar as this is possible with reasonable means. If the partner still has any uncertainties or if it identifies any risks, the partner shall declare an express reservation.

14.2 If the partner fails to carry out an inspection pursuant to 14.1, it shall not be entitled to base claims on aspects that would have been identifiable during this inspection at a later date. The same applies to reservations that were not expressed.

14.3 Insofar as this is necessary in the individual case, the partner shall take measurements and carry out drawing reviews independently and on its own responsibility with regard to compliance with the existing systems, facilities and buildings etc. which are necessary to carry out the order.

15. Retention of title

Ownership of the goods is transferred to the client unconditionally and regardless of payment of the purchase price. However, if the client accepts an offer from the partner to transfer ownership upon condition of payment of the purchase price in individual cases, the partner’s retention of title shall expire at the latest upon payment of the pur-chase price for the delivered goods. In standard business operations, the client also has the right to sell on the goods before payment of the purchase price. This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.

16. Third-party liability insurance

16.1 Unless otherwise agreed in the individual contract, the partner shall conclude a standard third-party liability insurance policy which is appropriate for the risks associated with the service provision and shall maintain this throughout the entire contract term.

16.2 If the partner is a manufacturer within the meaning of the Prod-uct Liability Act (Produkthaftungsgesetz), it shall conclude a product liability insurance policy which is appropriate to the risks of the service provision and shall maintain this throughout the entire contract term.

16.3 Upon request by the client, the client shall be provided with information on the existence and scope of the insurance protection by presenting insurance certification.

17. Code of Conduct for Suppliers

17.1 The partner is required to comply with the Code of Conduct for Suppliers.

17.2 The Code of Conduct for Suppliers can be accessed at https://www.basalt.de/verhaltenskodex-fuer-lieferanten.

18. Choice of law and jurisdiction

18.1 For these General Purchase Conditions and the contractual relationship between the parties, the law of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

18.2 The exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be the client’s place of business. However, the client shall also be entitled, in all cases, to bring an action at the place of fulfilment of the service in accordance with these General Purchase Conditions or an individual agreement which takes precedence or at the general place of jurisdic-tion of the partner.

19. Statutory minimum wage, working hours

19.1 The partner undertakes to comply with the provisions of the Law on the Posting of Workers (AEntG) and the Minimum Wage Act (Mi-LoG) and shall endeavour to ensure that the minimum working condi-tions arising from these laws and the statutory orders issued for this purpose in connection with the applicable tariff contracts are main-tained and that at least the prescribed minimum wages are paid, including with respect to all workers involved with the fulfilment of the order, regardless of whether they are employees of the partner, a sub-contractor permissibly commissioned by the partner or a loan worker commissioned by the partner or a sub-contractor.

19.2 Furthermore, the partner undertakes, with regard to its company, to ensure compliance with the provisions of the Working Time Act (Arbeitszeitgesetz) by its own workers and loaned workers and to record and document the actual working hours which are completed reliably and truthfully in accordance with the statutory provisions.

19.3 The partner shall indemnify the client against all claims arising from a breach of the provisions of the AEntG and MiLoG by the part-ner, a sub-contractor permissibly commissioned by it or a loan company commissioned by the partner or a sub-contractor.

19.4 Upon request, the partner shall provide the client with infor-mation about and proof of whether and in which form compliance with the laws mentioned in 19.1 is ensured in its company.

20. Severability clause

Should one of the provisions of these General Purchase Conditions and the additional agreements that are concluded be or become invalid or inoperable, the validity of the General Purchase Conditions and the additional agreements that are concluded shall otherwise not be affected by this. The invalid or inoperable provision or loophole shall be replaced with a valid and enforceable provision that comes as close as possible to the economic purpose intended by the parties with the invalid, inoperable or missing provision.