General Terms and Conditions for Supplies and Services (GTCs)
of Bader Holding GmbH, Bader GmbH Gehäusebau, Bader GmbH, Alvo GmbH and Baltic Metall GmbH

Article 1 Scope

The following General Terms and Conditions for Supplies and Services (GTCs) shall exclusively apply if the customer is classed as an entrepreneur (as per Article 14 of the German Civil Code (BGB)), public law entity or a trust under public law.
The GTCs shall solely be significant for all contracts relating to supplies and services concluded between ourselves and the customer including service contracts. These specifications shall particularly apply to contracts relating to the sales and/or delivery of movables regardless of whether we produce the goods ourselves or purchase them from suppliers (Articles 433, 651 of the German Civil Code (BGB)) including service contracts as well as the delivery of non-fungible items.
Our GTCs shall exclusively apply. Any contrary, deviating or supplementary conditions by the customer that we do not explicitly consent to shall be of non-binding character to us even if we do not explicitly object to them. We explicitly object to customer’s reconfirmations on the basis of the customer’s terms and conditions of business or purchasing specifications. Our terms and conditions of sales and payment shall also apply even if we unconditionally deliver to customers and are aware of contradicting or deviating conditions in relation to our conditions or conclude any other type of business.
The GTCs shall apply in their corresponding version as a framework agreement also to future contracts governing the sales and/or delivery of movables to the same customer without us having to once again point them out in each individual case; we shall immediately notify customers of any applicable changes to our GTCs.
Any agreements concluded with customers in individual cases (including collateral agreements, amendments and modifications) shall always have priority over these GTCs.
In the case of service contracts the “purchasing party” according to these conditions shall also be the “ordering party”.

Article 2 Offer and conclusion of the contract

The customer shall be explicitly notified that as a general rule, the product has been designed for use indoors (so-called indoor products). If customers intend to use the product outdoors (outdoor products) they shall indicate this upon creating the order as different materials are usually required for outdoor areas as a result of environmental factors.
Our offers shall be non-binding providing no other specifications have been agreed upon in writing.
Our offers shall be valid for a maximum of thirty days. Contracts shall exclusively be concluded on the basis of our written order confirmation or by delivering the order.
In case of any doubt the current Incoterms version shall apply to interpret trade terms.
We shall reserve all rights to any property rights and copyrights for designs, plans, drawings as well as any other documents we have created. In particular these may only be forwarded to or made accessible to third parties following our explicit consent. Any drawings and other documents within the context of offers shall immediately be returned to us upon our request. If we have supplied objects on the basis of drawings, models, samples or any other documents provided by customers, they shall be responsible for not having infringed any third-party property rights.

Article 3 Prices

All prices shall be net prices and, unless specified otherwise in writing, they shall apply ex works excluding packaging plus VAT (amounting to the currently legally valid rate). In the event of sales by delivery to a place other than the place of performance, customers shall bear the transport costs ex warehouse/works as well as the transport insurance as specified by customers. Customers shall bear potential customs tariffs, fees, taxes and other public fiscal charges. We shall not accept returns of transport packaging and any other packaging as defined in the packaging directive. Customers shall become the owners of said packaging, excluding pallets.
In the event that public fiscal charges, customs tariffs or any other third-party costs included in the price increase after conclusion of the contract or are incurred for the very first time, we shall be entitled to increase our prices to the corresponding extent. This shall not apply within a period of 4 weeks after conclusion of the contract or if a binding, fixed-price agreement was concluded in writing in individual cases.
We shall reserve the right to increase the agreed price for any quantities we have not yet delivered if circumstances apply as a result of changes to raw materials and/or the economic situation which increase the price for production and/or purchase of the affected product significantly compared with the time when prices were agreed. In this case customers shall be entitled to cancel the affected orders within 4 weeks from notification of the price increase.

Article 4 Time of delivery and performance

Delivery dates or deadlines that have not been explicitly agreed as binding in writing shall be considered approximate values.
Our delivery obligations shall be based on the condition of correct delivery to ourselves in due time unless we are responsible for incorrect or delayed deliveries to us.
Delivery periods shall begin with the date of our order confirmation; however, not before all details of the order have been fully clarified and all customer obligations have been met in due time.
Our delivery period shall have been complied with if our product has left the plant before this period has expired. If it is not possible to dispatch the goods in due time and we are not responsible for this, the delivery deadline shall be considered as complied with upon reporting readiness for delivery. If approval is required, the approval date shall be decisive; this shall not apply to legitimate denial of approval.
If we do not meet a binding delivery deadline for reasons we are not responsible for, we shall immediately notify customers of the circumstances and inform them of a new, estimated delivery deadline in due time. These cases shall particularly include delayed supplies by suppliers if we have concluded a congruent covering transaction, if neither we, nor the supplier are responsible or if we are not obliged to procurement in individual cases. If the delivery is also unavailable within the new delivery deadline, we shall be entitled to withdraw fully or partly from the contract.
The occurrence of a delivery delay shall be based on legally valid stipulations. In each case a reminder by the customer with an adequate delivery deadline shall be required in conjunction with the declaration that the customer will deny acceptance of the services after expiry of the deadline; once the deadline has expired without any effect, any entitlement to performance shall be excluded. If we definitely deny the service, it shall not be necessary to specify a subsequent deadline including a warning of refusal.
Our legal rights, in particular rights in the event of an exclusion of the obligation to perform services, for example as a result of impossibility of performance, etc., shall remain unaffected.
Customers shall be able to withdraw from the contract without setting a deadline if we are definitely unable to provide the entire delivery prior to passing of the risk. Customers shall also have the right to withdraw from the contract if the performance of part of the delivery is rendered impossible and they have a justified interest in denying partial delivery. If this is not the case, customers shall be obliged to pay the contractually agreed amount corresponding to the partial delivery. This shall also apply in the event of an inability to perform on our behalf.
Any customer claims to compensation on the basis of delays shall be based on Article 8 below.
We shall be entitled to supply partial deliveries or partial performance of the services at any time and in the event of corresponding advance announcements we shall also be entitled to provide early deliveries providing this is feasible for the customer.

Article 5 Terms and conditions of payment

Unless agreed upon with us in writing, the net purchase price shall be due for payment (without discount) immediately upon customers receiving the invoice.
Payment shall be considered as completed once we can freely dispose of the amount. Any costs for payment transactions shall be borne by the customer.
If it becomes clear after conclusion of the contract that our claim for payment is at risk as a result of a lack of the customer’s financial capacities, we shall be entitled to the rights as per Article 321 of the German Civil Code (BGB) (objection due to uncertainty). In this case, we shall also be entitled to demand payment of all accounts receivable that are not statute-barred resulting from the on-going business relationship with the customer.
Customers shall exclusively be entitled to set-offs if counter-claims have been established with final and binding character (even if notifications of defects or counter-claims have been asserted), we have accepted them or they are incontestable. Customers shall exclusively be entitled to exercise their right to retain if their counter-claim is based on the same contractual relationship. In the event of defects customers shall be entitled to exclusively exercise the right to retain an adequate amount of the purchase price on the basis of the type of defect and the restrictions of use.
Customers shall be in arrears at the latest 10 days after the due date of our accounts receivable.
If customers are in arrears, we shall be entitled to charge interest amounting to the statutory default interest rates. We shall reserve the right to enforce any further damage claims on the basis of default. Our entitlement to commercial interest on maturity (Article 353 of the German Commercial Code (HGB)) towards traders shall remain unaffected.

Article 6 Passing of the risk, insurance

Unless specified otherwise delivery shall be carried out on the basis of EXW 89250 Senden as per Incoterms in their correspondingly valid version.
On request and at the expense of customers the goods can be sent to a different destination. We shall define the type of shipment, way and means of transport unless no other framework conditions have been explicitly agreed upon.
Upon handover of the goods to a haulage company or carrier, at the latest upon leaving the warehouse, the risk of accidental loss and accidental deterioration as well as seizure shall be transferred to the customer. This shall also apply if transport is carried out by our vicarious agents or if we assume additional services, such as in particular shipping costs or delivery. Transport and goods shall exclusively be insured at customers’ expense and following their instructions to do so.
If approval is required, it shall be decisive for the transfer of risk.
If the customer delays acceptance of the goods, the risk shall be passed on to the customer as soon as we have indicated readiness for shipping or approval to the customer. Statutory regulations governing delayed acceptance shall remain unaffected.
Customers shall be obliged to approve the delivery or (if applicable) assembly at the agreed approval location and date. In any other case they must bear resulting additional costs. If the ordering party delays approval of the delivery, we shall be entitled to grant a grace period of 2 weeks and declare that upon expiry of the grace period we shall be withdrawing from the contract or demanding compensation on the basis of non-compliance. If the customer definitely refuses approval of the service or denies performance of the contract or in the event that we demand compensation as a result of non-compliance following unsuccessful expiry of the grace period, we shall be entitled to demand a flat rate compensation amounting to 25% of the agreed purchase price unless the customer can verify minor damage.

Article 7 Warranty

The goods shall be considered compliant with the contract if, at the time of passing of the risk, they do not deviate from the agreed specifications or demonstrate only insignificant deviations. Our goods’ compliance with the contract and absence of defects shall exclusively be assessed on the basis of the explicit agreements governing quality and quantity of the ordered goods. However, we shall not assume any liability for public statements made by the manufacturer or any other third parties (e.g. advertising statements). We shall exclusively assume liability for a certain purpose or certain suitability to the extent that this has been expressly agreed upon. Unless agreed otherwise, the contents of any agreed specifications or an agreed contractual purpose shall not constitute any guarantee.
Our liability shall be ruled out in the event of, among other things, incorrect storage, incorrect installation or commissioning, incorrect maintenance or use of unsuitable operating materials by the customer or third parties. We shall also not be liable for warranty in the event that the customer has failed to indicate any obvious defect in writing in due time.
Customers’ rights of recourse as per Article 478 of the German Civil Code (BGB) shall be restricted to the statutory scope asserted towards customers on the basis of claims based on defects by third parties. Customers’ claims based on defects shall require them having correctly fulfilled their obligations to inspect and notify of defects as per Articles 377, 381 of the German Commercial Code (HGB). Customers shall immediately notify us in writing of any obvious defects (at the latest within 5 working days from customers receiving the subject matter of the contract) or – if the defect only becomes obvious at a later point – immediately after having discovered it. Sending the notification of defects in due time shall be sufficient to uphold the deadline. If this is not the case, liability for the reported defect on our behalf shall be excluded. It shall not be permitted to deny acceptance of the subject matter of the contract as a result of insignificant defects.
If approval has been agreed, Article 640 of the German Civil Code (BGB) shall apply in deviation to Article 3 of the GTCs. Five working days shall be deemed an adequate period according to Article 640 Section 1 Subsection 3 of the German Civil Code (BGB), providing the supplier has not specified a different period.
In the event of a defect and report of this defect in due time we shall initially grant a warranty at our option by reworking or providing replacement deliveries (retrospective performance). Our right to reject retrospective performance as per statutory requirements shall remain unaffected. Retrospective performance shall neither include removal of the faulty item, nor re-installation if we had originally not been obliged to carry out installation.
We shall cover any expenses necessary within the context of retrospective performance (in particular transport, travelling, labour and material expenses). This shall not apply to increased expenses incurred as a result of the goods having been transported to a location different to the place of residence or the commercial subsidiary of the customer after delivery, unless this transport corresponded to the intended use of the goods. We shall also be entitled to demand any costs incurred as a result of an elimination of defects if the customer’s demands turn out to be unjustified.
We shall be entitled to refuse retrospective performance if this is exclusively possible on the basis of disproportionate costs. As a rule, a disproportionate nature shall be defined as the direct costs associated with retrospective performance including the required expenses exceeding 150% of the final invoice amount of the affected goods excluding VAT.
We shall be entitled to base any due retrospective performance on customer’s payment of the payable purchase price. However, the customer shall be entitled to retain an adequate amount of the purchase price in relation to the defect.
Customers shall always be obliged to hand over replaced parts if we request this. If it is feasible for the customer, replaced parts or, in the event of withdrawal, the entire product shall remain with the customer (on our request).
Customers shall immediately grant us an adequate opportunity for retrospective performance. Exclusively in urgent cases, for instance to maintain operative safety or to avert disproportionate damage, customers shall be entitled be eliminate defects themselves or have them eliminated by third parties and demand reimbursement of the objectively required expenses from us. We shall be immediately notified (if possible in advance) of such autonomous actions. This right to autonomously carry out repairs shall not apply if we are entitled to deny a corresponding, retrospective performance as per legal stipulations.
If our products are installed in systems in which a defect occurs and this is potentially caused by a defect or fault of the products we delivered, we shall be granted access to the design documents and technical details, providing they concern the goods we delivered. If this access is denied, we shall have the option to enforce a right of retention in terms of the warranty claims and refuse retrospective performance.
If we fail to successfully provide retrospective performance within an adequate period, customers shall be entitled to specify an adequate deadline to provide retrospective performance. If this deadline has expired without effect, retrospective performance is unreasonable for customers or we are unwilling or unable to provide it for reasons we are responsible for, customers shall optionally be entitled to reduce the consideration or – in the event of significant defects – withdraw from the contract and demand compensation or reimbursement of their expenses. Damage claims and replacement of futile expenses shall be limited as per the specification of the general liability regulations as per Article 8 and they shall be otherwise ruled out.
In the event of a defect of title we shall be entitled to retrospective performance by eliminating the defect of title within two weeks from having received the goods. We shall be entitled to grant customers an adequate right to continue to use the goods as intended or agreed or modify or replace the delivered goods in a way that is reasonable for customers so that there is no longer an infringement of property rights at our own expenses and at our own will. Otherwise, Section 12 Subsection 2 et seq. of this Article 7 shall apply accordingly. We shall also be entitled to a right of withdrawal on the aforementioned conditions.

Article 8 Limitation of liability

Notwithstanding the aforementioned specifications in Article 7 of this contract and the following limitation of liability, we shall be liable to an unrestricted extent for any loss of life, injury and damage to health that occur as a result of a negligent or intentional violation of our duties, or those of our legal representatives as well as vicarious agents and for damage covered by the scope of product liability legislation as well as any damage caused by intentional or grossly negligent contractual infringements as well as malice on behalf of ourselves, our legal representatives or vicarious agents.
If we have granted a guarantee for the condition and/or durability of the goods or parts thereof, we shall also be liable within the context of this warranty.
However, we shall exclusively be liable for damage caused by a lack of the guaranteed condition or durability that does not directly occur on the goods if the risk of such damage is evidently covered by the guarantee for the condition or durability.
We shall be liable as per the statutory stipulations if we, our managing employees or vicarious agents culpably committed an infringement of crucial contractual obligations (major obligations). A crucial, contractual obligation shall be an obligation whose performance will only enable correct implementation of the contract in the first place and on which the contractual partner regularly relies and may rely. However, in the event of infringements of major obligations our liability shall only be restricted to the amount of the typical, foreseeable damage in the event of minor negligence.
We shall otherwise not be liable for simple, negligent infringements of auxiliary obligations that are not crucial to the contract.
Any further liability shall be excluded without taking into account the legal nature of the asserted claim. This shall apply in particular to culpa in contrahendo compensation claims, as a result of any other violation of duties or as a result of tortious claims for replacement of material damage as per Article 823 of the German Civil Code (BGB).
Any excluded or limited liability on our behalf shall also apply to the liability of our legal representatives, managing employees and any other vicarious agents.

Article 9 Limitation of actions

Claims on the basis of material defects or defects of title applicable to our products and work performance including associated planning and monitoring services shall become statute-barred after expiry of one year from the statutory commencement of the limitation period in deviation to Article 438 Section 1 No. 3 of the German Civil Code (BGB). This shall not apply if legislation as per Article 438 Section 1 No. 2 of the German Civil Code (BGB) (structures and objects for structures), Article 479 Section 1 of the German Civil Code (BGB) (claim under the right of recourse) and Article 634 Section 1 No. 2 of the German Civil Code (BGB) (structural defects) provide for longer periods. Statutory, special regulations for real return claims of third parties (Article 438 Section 1 No. 1 of the German Civil Code (BGB)) and special regulations in the event of malice on our behalf (Article 438 Section 3 of the German Civil Code (BGB)) shall also remain unaffected.
The aforementioned limitation period of sales rights shall also apply to customers’ contractual and extra-contractual compensation claims based on a defect of the goods. This shall not apply if the application of the regular statutory limitation of actions (Articles 195, 199 of the German Civil Code (BGB)) would lead to shorter limitation periods in individual cases. The limitation periods of product liability legislation shall always remain unaffected. In any other case, the statutory limitation periods shall exclusively apply to customers’ compensation claims as per Article 8 Sections 1 and 4.

Article 10 Retention of title

We shall reserve the right of ownership to all our delivered goods until complete payment of all accounts receivable from the on-going business relationship including all secondary claims, in particular also balance accounts receivable to which we are entitled as part of the business relationship (balance reservation). This balance reservation shall definitely expire upon balancing out all unpaid accounts receivables included in this balance reservation.
Customers shall not be entitled to any other disposals of the goods subject to retention than those defined in Article 10 Section 4. Customers must especially also refrain from pledging the goods subject to delivery or assigning them by way of security. They shall be obliged to impose our retention of title on their recipients. Customers shall be obliged to immediately notify us of any access of third parties to the goods, for instance in the event of seizure as well as potential damage or destruction of the goods. For this purpose, customers shall immediately hand over all documents required to give notice of opposition.
In the event of non-conformity with the contract on behalf of the customer, in particular in the event of late payment or a violation of an obligation as per this Article 10, we shall be entitled to withdraw from the contract as per legal stipulations and/or demand the goods on the basis of the retention of title. Enforcing the retention of title and seizing the goods subject to delivery by ourselves shall not constitute withdrawal from the contract; on the contrary, we shall be entitled to merely demand handover of the goods and reserve the right to withdrawal. If the customer fails to pay, we shall exclusively be entitled to enforce the aforementioned rights following previous, unsuccessful reminders and an adequate grace period unless the specification of such a grace period is not necessary as per statutory stipulations. Customers shall already consent now to grant access to their premises to persons we have commissioned to pick up the goods subject to retention on foot and in their vehicles. The specifications of the Insolvency Act shall remain unaffected.
Customers shall be authorised to sell and/or process the goods as part of the ordinary course of business under the conditions specified in their normal terms and conditions of business providing they are not in arrears. In this case the following specifications shall additionally apply.
The retention of title shall apply to the full value of the products created by processing, mixing or connecting our goods. In this process, we shall be considered as a manufacturer in line with Article 950 of the German Civil Code (BGB) without imposing an obligation on ourselves. If third parties’ title to goods remains intact as part of processing, mixing or connecting with third-party goods, we shall be entitled to pro rata co-ownership of the goods proportionate to the invoice values of the processed, mixed or connected goods. If our ownership is rendered extinct as a result of connection or mixing, customers shall now already transfer ownership rights to the new stock or goods they are entitled to, amounting to the scope of the invoice value of the goods subject to retention and store them free of charge for us. For that matter the same conditions shall apply to the developing products as to the goods delivered subject to a retention of title.
If customers sell the goods subject to retention individually or in conjunction with goods that do not belong to us, customers shall now already transfer all accounts receivable amounting to the invoice value of the goods subject to retention or amounting to our actual co-ownership proportion as per the aforementioned subsection in the form of a security. We shall accept the transfer. The customer obligations listed in Section 2 shall also apply to the transferred accounts receivable.
We shall entitle customers to collect the accounts receivable transferred to us under the condition of revocation. We shall exclusively enforce our right to revoke if, after conclusion of the contract, it becomes clear that our claim for payment from this or other contracts with the customer is at risk as a result of a lack of the customer’s financial capacity. The authorisation to collection shall expire with the revocation, at the latest upon delayed payment by the customer, failing to redeem a bill of exchange or an application to initiate insolvency proceedings. On our request customers shall list debtors of the transferred accounts receivable and notify them of the transfer. However, we shall reserve the right to notify the corresponding debtor of the transfer ourselves and collect the accounts receivable ourselves as soon as the conditions for a revocation have been met.
Customers shall be obliged to handle the goods subject to retention with care and insure them against fire damage and theft at their own expense. In the event of damage, any claims of customers towards their insurance company shall be considered transferred to us up to the amount of the outstanding accounts receivable; we shall hereby accept this transfer.
If the realisable value of securities exceeds our accounts receivable including all secondary claims (interest, costs or similar elements) by more than 10%, we shall release securities of our choice on request by the customer.

Article 11 Export, compliance with legal stipulations

Customers must comply with all statutory regulations and requirements specified by authorities, in particular export regulations and legislation/regulations of the country in which customers are conducting business. Customers shall obtain all required permits and licences necessary to export or use the goods subject to delivery.
If it transpires that customers would violate legislation, regulations or requirements specified by authorities as a result of an export or use of the goods subject to delivery without our company being at fault or if not all required permits have been obtained, we shall be entitled to retain our goods and services from customers.
In the event of an export of the goods from the Federal Republic of Germany customers shall obtain and submit to us all export certificates required for taxation reasons or in the event of deliveries to another EU member state, the VAT ID as well as any other required documents. If the supporting documents are not submitted, customers shall additionally be liable to paying the statutory VAT we would have to pay in relation to the invoice amount.

Article 12 Final clauses

The legislation of the Federal Republic of Germany shall exclusively apply. The stipulations of the UN Sales Convention and international sales rights shall not apply.
German shall be the exclusive ruling language of the contract. This shall also apply to all product descriptions, brochures, offers and order confirmations. If we use translations, the German version serving as the basis of the translation shall be decisive. We shall not assume any liability for misunderstandings arising from translations.
If the customer is a merchant, a public law entity or a trust under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be our place of business. This shall also apply if customers do not have a general place of jurisdiction in Germany or their place of residence or habitual abode are unknown at the time of filing a complaint. We shall be authorised to also sue our customers at their place of business or residence.
If any provision is or becomes fully or partially ineffective, this shall not affect the validity of the other provisions. The fully or partially ineffective provisions shall be replaced by provisions that come as close as possible to the commercial intention of any ineffective clauses.

(Version dated 03/2017)