General Terms and Conditions of Business and Sale

General Terms and Conditions of Business and Sale of KGT Graphit Technologie GmbH for contracts with companies (as of January 2019)

§ 1 General

(1) All deliveries and other services are subject exclusively to the following terms and conditions of sale and delivery; they apply only to entrepreneurs within the meaning of Section 310 Paragraph 1 in conjunction with Section 14 of the German Civil Code.

(2) Any differing terms and conditions of the buyer which are not expressly accepted by the seller shall be non-binding, even if the seller does not expressly object to them.

(3) The incorporation and interpretation of these terms and conditions of sale and delivery, as well as the conclusion and interpretation of legal transactions with the buyer, shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the Uniform Law on the Formation of Contracts for the International Sale of Goods, the Uniform Law on the International Sale of Goods, and the UN Convention on Contracts for the International Sale of Goods is excluded.

(4) The invalidity of individual provisions of this Agreement or its components shall not affect the validity of the remaining provisions. Within reasonable limits and in good faith, the contracting parties are obligated to replace an invalid provision with a valid provision that achieves the same economic result, provided that this does not result in a material change to the content of the Agreement; the same applies if a matter requiring regulation is not expressly addressed.

(5) The place of performance for all obligations arising directly or indirectly from this contractual relationship, including the obligation to pay, is the seller's place of business.

(6) The place of jurisdiction is the court with jurisdiction over the seller's registered office, provided the buyer is a merchant. The seller is also entitled to bring an action before a court with jurisdiction over the buyer's registered office or branch.

§ 2 Offers, scope of services and conclusion of contract

(1) Offers made by the seller are non-binding. They are valid for four weeks from the date of issue. Oral agreements or promises are only binding on the seller after written confirmation.

(2) The scope of the contractually owed performance is exclusively determined by the seller's order confirmation. Contracts are only concluded after written order confirmation by the seller.

(3) The seller reserves the right to make changes to the design, choice of materials, specifications, and construction even after sending an order confirmation, provided that these changes do not contradict either the order confirmation or the buyer's specifications. Furthermore, the buyer will
to agree to any further proposed changes by the seller, provided these are reasonable for the buyer.

(4) Partial deliveries are permitted.

(5) Documents underlying the offer or order confirmation, such as illustrations, drawings, dimensions and weights, are generally to be understood as approximate values ​​only, unless they are expressly designated as binding.

(6) The seller and the buyer agree that all information, drawings, data, etc. provided within the scope of the cooperation are mutually entrusted within the meaning of Section 18 of the German Act Against Unfair Competition (UWG) and may only be used within the scope of the cooperation. Any other use,
In particular, the transfer to third parties is strictly prohibited.

§ 3 Prices and Payment Terms

(1) Prices are ex works, excluding packaging and other shipping and transport costs. Packaging will be charged at cost and will only be taken back if the seller is legally obligated to do so.

(2) If more than four months elapse between the conclusion of the contract and delivery, and the delay is not attributable to the seller, the seller may reasonably increase the price, taking into account any increases in material, labor, and other incidental costs to be borne by the seller. If the purchase price increases by more than 40%, the buyer is entitled to withdraw from the contract.

(3) If the seller accommodates changes requested by the buyer, the resulting additional costs will be charged to the buyer.

(4) In the event of culpable exceeding of the payment deadline, interest at a rate of 8% above the applicable base interest rate will be charged, subject to the assertion of further claims.

(5) Invoices are payable without deduction no later than 30 days after receipt of the invoice unless otherwise agreed.

§ 4 Set-off and Retention

Set-off and retention are excluded unless the set-off claim is undisputed or has been legally established.

§ 5 Delivery period

Delivery dates are given to the best of our knowledge and belief and will be extended appropriately if the buyer delays or fails to perform necessary or agreed-upon acts of cooperation. The same applies to measures taken in the context of labor disputes, in particular strikes and lockouts.
In the event of unforeseen obstacles beyond the seller's control, such as delivery delays from a supplier, traffic disruptions, operational disruptions, material or energy shortages, etc., changes to the delivered goods initiated by the buyer will also result in a reasonable adjustment.
Extension of the delivery period.

§ 6 Transfer of Risk

The risk passes to the buyer as soon as the seller has made the goods available to the buyer and notifies the buyer accordingly.

§ 7 Retention of Title

(1) The seller retains title to the delivered goods until full payment has been received. This retention of title also applies until all claims arising from the business relationship between buyer and seller, including future and contingent claims, have been settled.

(2) The buyer is not authorized to assign or pledge the goods as security, but is entitled to resell the goods subject to retention of title in the ordinary course of business. The buyer hereby assigns to the seller all claims arising from such resale against its business partners.

(3) If the goods are processed or transformed by the buyer, the retention of title extends to the entire new item. The buyer acquires co-ownership in the fraction that corresponds to the ratio of the value of his goods to that of the goods supplied by the seller.

(4) If the value of all securities held by the seller exceeds the outstanding claims by more than 10% on a sustained basis, the seller shall, at the buyer's request, release securities of the seller's choice.

(5) The seller is entitled to assert the rights of retention of title without withdrawing from the contract.

(6) If, before or during delivery, justified doubts arise regarding the buyer's solvency, the seller may demand sufficient security from the buyer to secure the buyer's payment obligation and may withhold delivery and performance until such security is provided. Should the buyer fail to provide the requested security, the seller is entitled to withdraw from the contract.

§ 8 Claims for defects

(1) If the purchase is a commercial transaction for both parties, the buyer must inspect the goods immediately upon receipt, insofar as this is practicable in the ordinary course of business, and, if a defect is found, notify the seller immediately. If the buyer fails to give such notice, the goods are deemed accepted, unless the defect was not discoverable upon inspection. Otherwise, Sections 377 et seq. of the German Commercial Code (HGB) apply. Objections by the buyer to the quantities stated on the delivery notes can only be raised in writing with the seller within 48 hours of receipt of the goods.

(2) Claims for defects are limited to subsequent performance. If subsequent performance fails, the buyer has the right, at his option, to demand a reduction in price or rescission of the contract.

(3) Further claims by the buyer, insofar as they do not arise from a warranty, are excluded. This does not apply in cases of intent, gross negligence, or breach of essential contractual obligations by the seller.

(4) Claims relating to defects shall become time-barred one year after delivery of the goods.

§ 9 Liability

The buyer's claims for damages are excluded. This does not apply in cases of intent, gross negligence, breach of essential contractual obligations by the seller, or warranty assumptions.

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