General Terms and Conditions of Delivery and Service of EMUK GmbH & Co. KG, Lahr, Germany B2B

1. Conclusion of Contract

1.1 Unless otherwise stated, our offers are non-binding; a contract shall only be concluded upon the issue of our order confirmation in writing (incl. e-mail, fax) or upon delivery. With regard to the content of the contract, in particular with regard to the scope of services, only our order confirmation shall be decisive. Amendments and supplements to the contract require our written confirmation (incl. e-mail, fax).

1.2 We reserve the right to make changes to illustrations, descriptions, drawings, weights, dimensions and other information contained in our brochures, price lists, catalogs and our offer, insofar as the delivery or service item has not changed significantly or has improved its quality and the changes or deviations are reasonably acceptable for the Customer.

2. Prices and Terms of Payment

2.1 Our prices for deliveries are ex works plus transport insurance, packaging, shipping, statutory value added tax, and, in the case of export deliveries, plus customs duties, fees and other public charges. Service and repair work shall be invoiced in accordance with the price list valid at the time of performance.

2.2 Payment shall be due without any deduction upon delivery or – in case of acceptance – upon acceptance. The Customer shall be in default of payment 30 calendar days after delivery and invoicing without necessity of a reminder. The date of receipt of payment shall be decisive. The Customer shall only be entitled to any discounts – as far as granted by us – subject to timely payment.

2.3 In the event that we must consider our claims to be at risk due to a significant deterioration in the customer's financial circumstances, we shall be entitled to withdraw from the contract. If the Customer is in default of payment for more than 8 weeks, we shall be entitled to demand immediate payment of our total claim. In the aforementioned cases, we are further entitled to demand advance payment or a security deposit for the performance of all of the Customer's orders.

2.4 Offsetting counterclaims of the Cusomer or the retention of payments due to such claims shall only be permitted if the counterclaims are undisputed or have become final and absolute, or in the case of reciprocity of these claims with our claims.

2.5 If delivery is made later than 6 months after conclusion of the contract for reasons for which we are not responsible, we reserve the right to increase the contractually agreed price (in each case after deduction of an agreed percentage or fixed discount if any) at any time before shipment of the goods by written notice (incl. e-mail, fax) to the extent that (i) our costs increase due to fluctuations in foreign exchange, currency regulations, changes in customs duties and fees, increases in raw material prices, personnel or transportation costs and (ii) such cost increases are beyond our reasonable control.

3. Terms of Delivery and Delay, Documentation of Transport Damage, Transfer of Risk

3.1 Delivery dates shall be based on the agreements made between the parties in the individual case. A delivery date shall be met if the delivery item is handed over for transport or if the delivery items are ready for shipment on the delivery date and the readiness for shipment has been notified to the Customer. The agreed delivery period shall be extended accordingly if the Customer causes delays of necessary cooperation or if he requests subsequent amendments to the contract.

3.2 Unless otherwise agreed, all deliveries shall be ex works (EXW, Incoterms 2020). If requested by the Customer, the goods may be delivered to another destination at the Customer's expense (shipment to a place other than the place of performance).

3.3 The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer as soon as the goods have been handed over for transport or readiness for dispatch has been notified and the Customer does not collect the goods immediately. This shall apply irrespective of whether the shipment is made from the place of performance (in particular if delivery is made from the premises of a third party (so-called drop shipment)) and who bears the transport costs.

3.4 In the event of externally visible damage to the goods or packaging (especially transportation damage), the Customer shall ensure that the damage is documented (in particular by taking pictures of the damaged packaging or good) and that the damage is noted on the receipt of the freight service provider. Sec. 5.1 remains unaffected.

3.5 Partial deliveries are permissible if the partial delivery can be used by the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur significant additional expenses or costs as a result of the partial delivery.

3.6 We are not liable for impossibility of delivery or delays in delivery, as far as they are due to force majeure (e.g. natural disasters, war, riots, epidemics, pandemics) or other unforeseeable events at the time of conclusion of the contract (e.g. breakdowns of all kinds (incl. unavailability of the IT system e.g. due to hacker attacks, viruses), delays in transport, strikes, legitimate lockouts, lack of manpower, energy or raw materials, difficulties in obtaining necessary regulatory approvals (incl. licenses), regulatory action or the lack of incorrect or untimely supply from upstream suppliers) which we are not responsible for. If such events make the delivery or service significantly more difficult or impossible for us and cannot be foreseen that we can provide our services within a reasonable period – at the latest within 2 months – we are entitled to withdraw from the contract; in this case, we will immediately refund any payment already made by the Customer. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period.

3.7 If the Customer is negligently or intentionally in default of acceptance of the delivered goods or if our delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to claim liquidated damages for the resulting damage, including storage costs, additional routes or partial deliveries. With regard to any storage costs, we shall be entitled to receive a lump-sum compensation for storage costs in the amount of 0.5% of the invoice amount for the goods stored per completed week up to a maximum of 5% of the invoice amount, starting with the delivery date or - if there is no delivery date – with the notification that the goods are ready for dispatch. The Customer reserves the right to prove lower damages. We reserve the right to assert demonstrably higher damages. Our statutory claims and rights shall remain unaffected. The amounts paid by Customer as set forth above, shall, however, be deducted from any further claims for damages.

4. Retention of Title

4.1 We reserve title to all deliveries (“Reserved Goods”) until full fulfilment of all current and future claims from the entire business relationship with the Customer (current account reservation). The retention of title shall also apply to replacement or exchange parts, unless those parts become essential parts of another good.

4.2 The Customer shall be obliged to store and mark the Reserved Goods separately. He shall insure the Reserved Goods against fire, water damage, burglary and theft at his own expense. Upon our request, the insurance policy shall be provided to us. The Customer shall assign to us in advance the claims against the insurance company. We hereby accept said assignment.

4.3 The Customer shall notify us immediately of any dispositions of the Reserved Goods by third parties (attachment, seizure, etc.). The Customer shall bear all costs incurred in order to stop the attachment and to recover the Reserved Goods.

4.4 The Customer shall be entitled to sell the Reserved Goods in the ordinary course of business as long as the Customer is not in default of payment. Pledges or transfers by way of security are not permitted. During the period of retention of title, the Customer is not entitled to pledge the Reserved Goods or assign them as security. The Customer hereby already assigns the accounts receivable that arise out of the re-sale or for any other legal reason (in particular but without limitation any transfer of title to the end customer, any insurance case or any tortious act) concerning the Reserved Goods to us in full as security – in the case of co-ownership of the Reserved Goods pro rata according to the co-ownership share, without the need for any special declaration. We accept said assignment. We revocably authorize the Customer to collect the claims assigned to us for our account in his own name. Upon our request, the Customer shall disclose the assignment and provide us with the information and documents required for the collection of the claim.

4.5 If the Reserved Goods are combined with other items, the retained title to the newly created item shall continue. We shall thereby acquire a co-ownership share in the ratio of the value of the Reserved Goods (invoice value) to the value of the other combined items. The Customer shall store the new item free of charge with regard to our co-ownership share. If the Reserved Goods are resold as a component of the new item, the advance assignment as stated in Sec. 4.4 shall apply only to the amount of the invoice value of the Reserved Goods.

4.6 In the event of a breach of contract by the Customer, in particular in the event of default in payment, we shall be entitled, after setting a reasonable deadline, to demand the return of the Reserved Goods at the Customer's expense. The Customer shall be obliged to return the Reserved Goods. Our request to return the Reserved Goods shall only be considered as withdrawal from the contract if we have declared the withdrawal. Subject to a prior notification, we shall be entitled to use the Reserved Goods (e.g.to sale them) and to offset the proceeds thereof against the outstanding payments.

4.7 If the law of the country where the delivered items are located does not allow for retention of title or only in a restricted format, we shall reserve the right to retain other rights to the Reserved Goods. The Customer shall cooperate with all required measures (e.g. registration) to realize the retention of title or other rights in place of retention of title and to protect these rights.

5. Claims for Defects

5.1 As a matter of principle, we shall not be liable for defects of which the Customer is aware at the time of conclusion of the contract or is not aware due to gross negligence (Section 442 German Civil Code). Furthermore, the customer's claims for defects are subject to the condition that he has complied with his statutory obligations to examine the goods and to give notice of defects (Sections 377, 381 of the German Commercial Code). If a defect becomes apparent upon delivery, inspection or at a later point in time, the Customer shall immediately give notice thereof in text form. In any case, the Customer shall give notice of obvious defects in text form within three (3) working days after delivery (i.e. receipt of the goods), and of defects not apparent upon inspection within the same period after discovery of the defect. If the Customer fails to make the proper inspection and/or notification of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.

5.2 If the deliveries or services prove to be defective, we shall be entitled to remedy the defects at our own discretion by rectifying the defect or providing replacement or respectively by providing a defect free services (supplementary performance). In the event of a replacement delivery, the Customer shall return the defective item to us in accordance with the statutory provisions. We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, labor and material costs; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.

5.3 We shall be entitled to make the subsequent performance owed by us dependent on the Customer paying the purchase price due. However, the Customer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.

5.4 If the defect is based on a defective third-party product, we shall be entitled to assign our warranty claims against our supplier to the Customer. In this case, the Customer can only assert warranty claims against us if the judicial enforcement of the aforementioned claims against the supplier or manufacturer of the defective third-party product was unsuccessful or is – for example, due to insolvency – hopeless.

5.5 For defects of used delivery items which we sell as "repaired" or "used" and not as "refurbished" or "as new" items, we shall be liable only in accordance with Sec. 6. In the case of defects of used but refurbished or as new items, we shall only be obliged to make one attempt to remedy the defect. If the removal of the defect fails, the rights of the Customer are limited to a reduction of the purchase price. The liability according to Sec. 6 remains unaffected. Apart from that, the Customer shall not be entitled to any claims in case of defects of used delivery items, in deviation from Clauses 5.2 to 5.4.

5.6 The Customer shall have a claim for damages or reimbursement of futile expenses in the event of defects only in accordance with the following Sec. 6.

6. Liability, Statute of Limitations

6.1 We shall be liable in accordance with the statutory provisions for any negligent or intentional breach of material contractual obligations by us, i.e. contractual obligations, the performance of which characterize the contract, which are necessary for its proper performance and which the contracting party may regularly rely on being complied with. Insofar as we did not act gross negligently or intentionally, we shall only liable for typically occurring foreseeable damage.

6.2 In all other cases, we shall be liable if damage has been caused intentionally or by gross negligence by one of our legal representatives, an employee or another vicarious agent.

6.3 Liability under the Product Liability Act remains unaffected; this also applies to liability for negligent or intentional injury to life, body or health. When assuming a guarantee, we shall be liable in accordance with the statutory provisions. Otherwise, claims for damages against us for breaches of duty shall be excluded.

6.4 Claims for damages according to the above Sec. 6.1 to 6.3 expire within the statutory periods.

6.5 The limitation period for claims for defects according to Sec. 438 para 1 No. 3 German Civil Code (BGB) is – except for intent and subject to Sec. 6.4 – 12 months and starts from delivery or, if acceptance is required, from acceptance.

6.6 A claim for damages for breach of the obligation to supplementary performance according to Sec. 437 para. 1, Sec. 439 German Civil Code (BGB) exists only if during the 12-month limitation period acc. to Sec. 6.5 both (i) the Customer demands supplementary performance, and (ii) we have violated our supplementary performance obligation.

6.7 The warranty shall not apply if the Customer modifies the delivery item, or has it modified by a third party without our prior written consent and if such modification makes it impossible or unreasonably difficult to remedy the defect. In any case, the Customer shall bear the additional costs of remedying the defect resulting from the modification.

7. Drawings, Constructions and other Documents, Trademarks and Intellectual Property Rights

7.1 Drawings, designs, calculations and other documents such as samples and models provided by us shall remain our property. They may not be made accessible to third parties or duplicated or used for other purposes without our prior written consent. They shall be returned to us after execution of the order or upon our request.

7.2 In the case of deliveries based on drawings, models or information provided by the Customer, the Customer shall hold us harmless and indemnify us against all claims of third parties for intellectual property rights. In the event of breach of contract by the Customer, his intellectual property rights shall not prevent us from exploiting the goods.

7.3 The right to use trademarks and other intellectual property rights of EMUK GmbH & Co. KG remains only with us. In particular, the use of our domains or logos requires our prior written consent and is otherwise prohibited. The aforementioned restrictions do not apply insofar as the use is permitted by law.

8. Information and Technical Advice

9. Final Provisions

9.1 The place of performance for all obligations of both contracting parties shall be Lahr/Schwarzwald, Germany.

9.2 This contract shall be subject to the laws of the Federal Republic of Germany without regard to its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.

9.3 If the Customer is a merchant (Sec. 1 German Commercial Code), a legal person under public law or special assets (Sondervermögen) under public law, or has the Customer no general venue in Germany, the sole place of jurisdiction for all disputes derived directly or indirectly from the contractual relationship between the parties shall be Lahr/Schwarzwald, Germany. We are also entitled to assert our claims at the general place of jurisdiction of the Customer.