General Terms and Conditions of Sale
tozero GmbH
1. General
1.1 These General Terms and Conditions of Sale ("GTC") apply to any and all contracts ("Sales Contracts") concluded between tozero GmbH ("Supplier") and a customer ("Customer") regarding the sale and delivery of products ("Products").
1.2 No other terms and conditions of the Customer, notably its general terms and conditions shall apply, irrespective of whether or not the Supplier has expressly rejected them or if, with knowledge of the Customer's other terms and conditions, the Supplier effects or accepts contractual performance without reservation.
2. Delivery of the Products
2.1 The Supplier shall deliver the Products to the agreed delivery location ("Delivery Location").
2.2 All deliveries shall be made on the basis of EXW (Incoterms 2020) from the Delivery Location. All deliveries shall be packed in accordance with the agreed requirements.
2.3 Partial deliveries are permitted to the extent they are reasonable for the Customer, particularly if the delivery of the remaining ordered Products is secured and the Customer does not thereby incur any significant extra expenses or any significant additional costs.
3. Production Site Issues of the Products
In case the parties agreed on delivery and offtake obligations in the respective Sales Contract, the following shall apply: The delivery and offtake obligations shall not apply to the extent the production of the Products at the production site of the Supplier ("Production Site") is not possible, suspended, delayed or aggravated due to technical problems, technical measures leading to unexpected downtimes or any other issues in connection with the operation of the Production Site ("Site Issues"). The Supplier shall immediately notify the Customer about any actual or anticipated Site Issues in writing or text form (e.g. by email). In case of Site Issues, the Supplier shall not be responsible for any delivery default and the Supplier and the Customer shall in good faith make any necessary adjustments to the Sales Contract in accordance with the then prevailing situation, including postponing delivery dates or adjusting volumes. Clause 10 shall remain unaffected.
4. Production Delivery Dates; Delivery Default and Default of Acceptance
4.1 The delivery dates ("Delivery Dates") agreed are non-binding, unless agreed otherwise in the respective Sales Contract.
4.2 Further, the Supplier's compliance with Delivery Dates, irrespective whether binding or not, is subject to the timely delivery and provision of services by the Supplier's suppliers and service providers. The Supplier shall immediately notify the Customer in writing or text form (e.g. by email), if suppliers or service providers of the Supplier do not provide their deliveries or services to the Supplier correctly or timely for reasons not attributable to the Supplier (collectively "Non-Default Event"). The Supplier shall not be responsible for any delay caused by a Non-Default Event and the applicable Delivery Dates shall be extended by the corresponding period of such Non-Default Event plus a reasonable relaunch period. However, if the Non-Default Event lasts longer than six (6) weeks from the Customer's receipt of the notification pursuant to Clause 4.2 sentence 2, the Customer shall be entitled to rescind from (zurücktreten) the affected delivery under the respective Sales Contract.
4.3 In case the Supplier is in delivery default (Lieferverzug), any damage claims of the Customer resulting from the delivery default (Lieferverzug) shall be limited to 0,5% of the (net) sales price for the affected delivery under the respective Sales Contract for each full week of the delivery default (Lieferverzug), however, in total to 5% of the (net) sales price for the affected delivery under the respective Sales Contract. Such limitation shall not apply in case of intent (Vorsatz), fraud (Arglist) or gross negligence (grobe Fahrlässigkeit) of the Supplier or its legal representatives, executives, employees or vicarious agents.
4.4 The Customer shall be in default of acceptance (Annahmeverzug) in case it does not accept the Products upon their delivery at the Delivery Location. In case of non-binding Delivery Dates, the Customer shall however only be in default of acceptance (Annahmeverzug) after the fruitless expiration of a reasonable grace period for the Customer's acceptance set by the Supplier.
4.5 In case the Customer is in default of acceptance (Annahmeverzug), the Supplier may charge the Customer storage fees for storing the Products, which are part of the affected delivery, in the amount of 0,1% of the (net) sales price of the affected delivery per day as liquidated damages (Schadenspauschale). Any further rights and claims of the Supplier due to the Customer’s default of acceptance (Annahmeverzug) shall remain unaffected; this also includes the Supplier’s right to claim higher damages. This Clause 4.5 shall not apply in case the Customer is not responsible for the default of acceptance (Annahmeverzug).
5. Prices and Payment
5.1 The applicable prices shall be understood EXW (Incoterms 2020) from the Delivery Location.
5.2 The prices are in Euro and do not include any applicable value-added tax ("VAT"). The VAT (if any) will be separately shown in the invoice. Further, any additional costs or charges, particularly charges for packaging, freight, insurances and custom duties (if applicable) are not included in the prices and will be charged additionally. These costs or charges will be separately shown in the invoice.
5.3 Payments shall be made without any deduction within five (5) business days following receipt of the invoice for the respective deliveries.
5.4 Invoices may be issued from the delivery or default of acceptance (Annahmeverzug).
6. Retention of Title
6.1 The Products shall remain in the ownership of the Supplier until all of the receivables related to the relevant delivery have been fully paid.
6.2 If the laws of a country in which the Products are located do not permit a retention of title, but allow the Supplier to retain other comparable security interests in the Products, the Supplier may enforce such other security interests. Where special regulations or any other provisions are applicable to a retention of title or other comparable security interests in such country, the Customer shall carry out the terms of such regulations or provisions to validate and preserve the rights of the Supplier.
6.3 The Supplier will release securities it is lawfully entitled to, in case their sum exceeds the unsettled claims to be secured by more than 20%.
7. Quality of the Products
The Products shall comply with the specifications and requirements ("Specifications") agreed in the respective Sales Contract. The Specifications conclusively describe the quality of the Products.
8. Retention of Title
8.1 The Customer shall inspect the Products upon delivery and notify the Supplier of any defects pursuant to Section 377 of the German Commercial Code (Handelsgesetzbuch). Such notification of defects shall be made in writing and provide specific details of the defect.
8.2 Subject to the Customer's compliance with its notification obligations set out in Clause 8.1, the following applies in case of defects of Products:
a. The Supplier may provide subsequent performance by delivering defect-free Products. The place of subsequent performance shall be the registered office of the Supplier.
b. If the subsequent performance finally fails, the Customer may rescind from (zurücktreten) the affected delivery under the respective Sales Contract, unless the defect is only a minor defect. However, the Customer shall not be entitled to reduce the applicable price in case the subsequent performance finally fails.
c. The Customer shall not be entitled to any claims for defects, if such defects are attributable to (a) unsuitable or improper use or storage of the Products by the Customer; (b) breach of applicable laws or safety standards by the Customer; (c) extrinsic chemical influences after delivery; (d) the Customer’s failure to comply with the Supplier's handling or security instructions (if any); (e) lack of testing of the end product by the Customer; (f) the use of the Products under conditions that were not known at the time of the Supplier’s delivery; or (g) other circumstances resulting from the Customer's sphere of responsibility (e.g. use of the Products in combination with defective materials of the Customer).
d. With respect to any recourse claims of the Customer arising out of the supply chain, the statutory provisions shall apply. However, any claims for damages of the Customer against the Supplier in this respect shall be subject to the limitations set out in Clause 9.
e. Further claims for defects of any kind whatsoever are excluded. This shall not apply for any claims for damages of the Customer against the Supplier in case of defects; however, any claims for damages in this respect shall be subject to the limitations set out in Clause 9.
f. The limitation period for claims for defects is one (1) year commencing upon delivery. This shall not apply in the following cases: (a) fraudulently (arglistig) concealed defects; (b) a liability under the German Product Liability Act (Produkthaftungsgesetz); (c) the Supplier assumed a guarantee (Garantie) for the Products as well as (d) applicability of Sections 445a and 445b of the German Civil Code (Bürgerliches Gesetzbuch); in the case of claims for damages, this shall also not apply in the following cases: (a) death or damage to body or health caused as well as (b) intent (Vorsatz), fraud (Arglist) or gross negligence (grobe Fahrlässigkeit) of the Supplier or its legal representatives, executives, employees, or vicarious agents.
9. Liability
9.1 The Supplier shall only be liable (a) if it assumes a guarantee (Garantie); (b) if it is liable according to the German Product Liability Act (Produkthaftungsgesetz); (c) if it acts intentionally (vorsätzlich), fraudulently (arglistig) or grossly negligent (grob fahrlässig), (d) in cases of injury to life, body or health; or (e) in case of a violation of essential contractual obligations (wesentliche Vertragspflichten), i.e. obligations the performance of which is essential for enabling the due performance of a contract and on the performance of which the Customer habitually relies and may rely on.
9.2 However, in case of a slightly negligent violation of essential contractual obligations (wesentliche Vertragspflichten), the liability of the Supplier shall be limited to the foreseeable damages which are characteristic for such type of contracts (vertragstypisch vorhersehbare Schäden).
9.3 In the cases of Clause 9.2, the liability of the Supplier for damages shall in any case be limited to 150% of the (net) contract value of the affected delivery under the respective Sales Contract.
9.4 In the cases of Clause 9.2, the liability of the Supplier for loss of profits and business and any other indirect or consequential damages shall in any case be excluded.
9.5 Apart from that, the Supplier shall not be liable, irrespective of the legal basis (contract, tort, indemnifications etc.).
9.6 If and to the extent that the liability of the Supplier is limited or excluded pursuant to the preceding provisions of this Clause 9, this shall also apply to the corresponding personal liability of the legal representatives, executives, employees, or vicarious agents of the Supplier.
9.6 The limitations and exclusions set out in Clause 4.3 shall remain unaffected.
10. Force Majeure
10.1 "Force Majeure" means an unforeseeable event, irrespective of its cause, for which the Supplier is not responsible and which could not have been avoided by the Supplier by taking reasonable actions.
In particular, the following events will be considered a Force Majeure: (a) mobilization, war (whether declared or not), civil war, terrorism, unrest, insurgency; (b) foreign-currency or trade restrictions, embargoes, sanctions, trade wars including increasing tariffs; (c) natural catastrophes, epidemics, pandemics, fire; (d) legislative activities, judicial decisions or administrative orders (whether lawful or not); or (e) disruption or loss of transportation, telecommunication or information services, or raw material, electrical power, gas, or energy shortages as a result of a Force Majeure (e.g. war).
Force Majeure also includes cases where Force Majeure affects suppliers, service providers or subcontractors of the Supplier, and therefore the aforementioned persons are unable to perform their contractual obligations vis-á-vis the Supplier wholly or partially.
10.2 If it is temporarily or permanently impossible for the Supplier to perform its contractual obligations under a Sales Contract (wholly or partially) due to the Force Majeure ("Performance Hinderance"), the following shall apply:
a. The Supplier shall notify the Customer about the Force Majeure and the Performance Hinderance associated therewith immediately in writing or text form (e.g. by email), including, if possible, the start date and the expected end date of the Performance Hinderance.
b. The Supplier shall be released from its obligations under such Sales Contract with respect to the part of such Sales Contract which is impossible to be performed, however, in case of a temporarily impossibility only for the duration of the Performance Hinderance, but any agreed Delivery Dates shall be extended for the duration of the Performance Hinderance plus a reasonable relaunch period. In case the performance under the affected Sales Contract is permanently impossible (wholly or partially), either party shall be entitled to rescind from (zurücktreten) all affected deliveries that were already agreed under the affected Sales Contract (wholly or partially), without being obliged to observe the period set out in Clause 10.2(d).
c. If the performance under the affected Sales Contract is temporarily impossible (wholly or partially), but the Performance Hinderance lasts longer than one (1) month from the Customer’s receipt of the notification pursuant to Clause 10.2(a), the Supplier and the Customer shall in good faith make any necessary adjustments to such Sales Contract in accordance with the then prevailing situation (e.g. postpone Delivery Dates or reduce volumes), but without prejudice to Clause 10.2(d).
d. If the Performance Hinderance lasts longer than two (2) months from the Customer's receipt of the notification pursuant to Clause 10.2(a), either party shall be entitled to rescind from (zurücktreten) all affected deliveries that were already agreed under the affected Sales Contract.
10.3 Any liability of a party under the affected Sales Contract due to the Performance Hinderance shall be excluded, irrespective of the legal basis.
10.4 If the Force Majeure: (a) ended prior to or upon the conclusion of the affected Sales Contract and then reoccurs although this was unlikely on upon its conclusion; (b) already existed prior to or upon the conclusion of the affected Sales Contract and did not end after its conclusion even though this was expected by the Customer and the Supplier upon its conclusion; (c) existed prior to or upon the conclusion of the affected Sales Contract and substantially increased or worsened after its conclusion (e.g. an epidemic develops into a pandemic or a war spreads to other countries); or (d) appeared possible, but was unlikely, upon the conclusion of the affected Sales Contract, and after its conclusion the Force Majeure nonetheless occurs, this will nonetheless be considered as Force Majeure.
11. Compliance with Laws and Regulations
The Customer shall comply with any and all applicable laws and regulations; particularly, the Customer shall obtain and maintain all required approvals, licenses and permits. Without prejudice to any further rights and claims under statutory law, the Supplier shall be entitled to refuse to continue performance of a Sales Contract, if (a) such contractual performance would constitute a breach of applicable laws or regulations or (b) the Customer breaches its obligations under this Clause 11.
12. Set-Off and Retention Rights
12.1 Offsetting by the Customer due to (a) disputed (bestrittener) or (b) not legally established (nicht rechtskräftig festgestellter) claims or (c) claims that are not reciprocal is excluded. However, the exclusion of set-off shall not apply with respect to undisputed (unbestrittene) or legally established (rechtskräftig festgestellte) claims based on other contractual relationships.
12.2 The exercise of a right of retention by the Customer is excluded if the counterclaims are not based on the same contractual relationship.
13. Assignment
13.1 Without the Supplier's prior written approval, the Customer may not assign its rights and obligations under the respective Sales Contract. Section 354a of the German Commercial Code (Handelsgesetzbuch) shall remain unaffected.
13.2 The Supplier remains free to assign its rights and obligations.
14. Subcontracting
The Supplier is generally free to engage subcontractors for the performance of its contractual obligations under the respective Sales Contract.
15. Governing Law and Place of Jurisdiction
15.1 All legal relations between the Supplier and the Customer shall be governed by and be construed in accordance with German law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall however not apply.
15.2 The exclusive place of jurisdiction shall be the registered office of the Supplier. The Supplier shall also be entitled to take legal actions against the Customer at its registered office or at any competent court having jurisdiction.
16. Final Provisions
16.1 Any amendments or additions to the GTC must be in writing and agreed upon by both Parties in order to be effective. This also applies to any waiver of this written form requirement.
16.2 Should individual provisions of the GTC be or become invalid, the validity of the remaining provisions shall not be affected thereby.