Conditions générales

General Terms and Conditions of Purchase (April 2015)

1. General (1) These General Conditions of Purchase for Talis Management Holding GmbH, and its affiliated companies, with registered office in Germany (hereinafter together, or individually, referred to as “Buyer”) apply  exclusively. (2) These General Conditions of Purchase apply to all contracts concerning the purchase and delivery of goods and/or the provision of services or factory services to the Buyer from persons who act in the exercise  of their commercial or individual professional activity (entrepreneur within the meaning of § 14 of the Bürgerliches Gesetzbuch (the Civil Code, the “BGB”) upon execution of the contract as well as to legal persons under public law and special funds under public law in the sense of § 310 para. 1 BGB. (hereinafter referred to as “Supplier” or “Suppliers”). The General Conditions of Purchase also apply in their respective version as the framework agreement for future contracts concerning the sale and delivery of goods and/or the provisions of services or factory services with the same Supplier, without the Buyer having to refer to them again. The Buyer must, however, without undue delay inform the Supplier of any new versions of the General Conditions of Purchase. (3) These General Conditions of Purchase apply exclusively. Differing, conflicting, or supplementary General Terms and Conditions of the Supplier will become components of the contract only if, and when, the Buyer has expressly agreed to their applicability in writing. This consent requirement applies in any case, i.e. also when the Buyer, in the knowledge of the Supplier’s General Terms and Conditions, unconditionally accepts the Supplier’s goods and/or services, or when the Buyer has not disagreed with the Supplier’sGeneral Terms and Conditions. (4) On a case-by-case basis, agreements made with the Supplier (also side agreements, additions, and changes) take priority over these General Conditions of Purchase. For the content of such agreements, a written agreement, or the written confirmation of the Buyer’s is decisive. Legally relevant declarations and notifications which must be delivered by the Supplier to the Buyer upon conclusion of a contract (i.e. setting of deadlines, reminders, declaration of withdrawal) must be made in text format in order to be valid. 2. Bids and Bid Documentation (1) In the event that the Buyer requests a bid from the Supplier, i.e. in the form of a request or an invitation to tender, the Buyer is in no way obligated by such a request. Even if an assumption of costs for the preparation, or submission of a bid was declared by the Buyer in writing in advance, this does not obligate the Buyer to accept the bid. (2) Designs, certificates, etc. which are requested by the Buyer or whose submission by the Supplier is reasonable, must be made available to the Buyer by the Supplier free of charge. The Buyer does not acquire ownership of the designs and intellectual property rights contained in other documents unless otherwise agreed, or the corresponding agreement contains a transfer of intellectual property rights. The Buyer retains copyright and ownership of diagrams, designs, calculations, technical information, data, and other documents which he makes available for the purpose of fulfillment of the order. Such documents must be kept strictly confidential and may not be made available to third parties without the prior written consent of the Buyer. They are only to be used for the manufacturing to be conducted based on our order. After order fulfillment they must be returned to the Buyer without request. No property rights and no licensing rights will be transferred to the Supplier without the prior written consent of the Buyer. (3) An order by the Buyer is considered binding upon written submission or confirmation at the earliest. Orders may also be transmitted via E-mail or Fax. The Supplier must confirm the Buyer’s order in writing within three business days unless otherwise agreed. In the event of framework agreements the order is considered accepted if the Supplier does not confirm, or deny, the order within one week. The Supplier will be specifically informed of this at the time of the order. (4) The Supplier will immediately inform the Buyer in the event the order contains obvious errors (i.e. typing and mathematical errors, contradictions, etc.) and omissions, which can lead to reasonable doubts that the fulfillment of the agreement may not correspond to the Buyer’s needs, or the Buyer’s customer’s needs. In such a case the Supplier will grant the Buyer a reasonable time to think over the order and, if necessary, change it, otherwise the agreement will not be considered concluded. (5) The Buyer can request changes to the order at any time provided these are required due to specific operational reasons and the changes are customary, or reasonable, for the Supplier. The Supplier will do his best to ensure that a change in the contract does not lead to a later delivery time. In the event that a postponed delivery dates is likely he must immediately inform the Buyer of this likely postponement. The Supplier will share costs arising from the necessary changes that arise with the Buyer (cost increase or cost decrease) and the parties will reach an agreement regarding prices changes before the change in the order becomes effective. (6) The Supplier will accept changes in the quantity order of up to minus, or plus, 25% of the original quantity ordered without claims of increased unit costs being made valid. The Buyer is entitled, at any time, to cancel orders in whole, or in part, in the event of factually justifiable reasons. The Buyer is also entitled to postpone the agreed upon deadlines for the provision of services or delivery of goods by the Supplier, according to equitable discretion, when such a postponement appears reasonable to the Buyer. 3. Prices, Terms of payment (1) The price specified in the order is binding. However, proviso in § 2 (5) applies. All prices are considered inclusive of statutory value added tax. (2) Unless otherwise agreed the price includes all services and ancillary services of the Supplier (i.e. assembly, installation) as well as all additional expenses (i.e. proper packaging, transportation costs including possible transportation and liability insurance) for delivery to the address specified in the order. The return of packaging materials requires a separate agreement. (3) The agreed upon price is due, net, within 30 days after receipt of the proper invoice. The complete delivery and provision of services or goods (including an agreed upon acceptance, if applicable) is a prerequisite. (4) If the Buyer makes an advance payment such a payment must be covered by a bank guarantee of the same amount. (5) The Buyer is entitled to offset receivables of the Supplier’s against the Buyer with the Buyer’s receivables against the Supplier. 4. Delivery, Transfer of risk, Property, Default of Acceptance (1) The delivery will be made at the address specified in the order (destination). Unless otherwise agreed DDP (destination) Incoterms 2010 is considered agreed. There is a consensus that the destination for the deliveries may also be on the grounds/sites of the Buyer’s customers outside of Germany, or Europe. (2) The transfer of risk conforms to the provisions of the agreed upon Incoterms. However, in the event that the agreement provides installation on site and/or initial operation the transfer of risk does not occur before successful completion of the installation and/or initial operation, whichever is relevant in accordance with the Supplier’s contractual obligations. If an acceptance is agreed this is decisive with regard to the transfer of risk. Also, apart from that, the legal requirements of the German law on contracts of work and services (Werkvertragsrecht) apply accordingly in the event of an acceptance. The transfer of the property takes place in the moment in which the goods ordered arrive at the destination, at the latest, however, after 50% of the agreed upon purchase price for the corresponding goods has been paid. (3) The Supplier has no right to claim retention of title rights to delivered goods, or to goods which have already been 50% paid for. (4) For the occurrence of default of acceptance by the Buyer the legal provisions apply. The Supplier must, however, clearly offer the Buyer the service when a specific, or definable calendar date, is agreed for an action or participation on the Buyer’s side (i.e. provision of materials). If the Buyer’s falls into default of acceptance the Supplier may request replacement of his additional expenses in accordance with the legal provisions. If the contract concerns an unjustifiable item (unvertretbare Sache) (single-unit production) manufactured by the Supplier the Supplier is only entitled to further rights if the Buyer obligated himself to assistance and is responsible for the failure to provide assistance. (5) The Supplier is obligated to offer the Buyer replacement parts which cannot be purchased from another side for the length of the normal technical use, but, at minimum, for 20 years after the last delivery. Before the Supplier discontinues the delivery of replacement parts the Buyer must be informed and given the opportunity to make a final order.5. Delivery time and Delivery default (1) The delivery time specified in the order is binding. The Supplier is obligated to immediately inform the Buyer in writing if he expects not to be able to comply with the delivery time – whatever the reason. (2) If the Supplier fails to provide the services or to deliver the products, or fails to provide or to deliver them within the agreed upon delivery time, the Buyer’s rights -in particular to withdrawal and compensation for damages- are determined by the legal provisions. The provisions in (3) through (5) remain untouched. (3) If the Supplier is in default the Buyer can – in addition to further legal claims – demand liquidated damages (pauschalierter Schadensersatz) of the damage caused by the delay in the amount of 0.5% of the value of the delivery affected by the delay per completed calendar week, for a total of no more than 5% of the order value for the goods affected by the delay. The Buyer reserves the right to prove that he suffered higher damages. The Supplier retains the right to prove that the Buyer suffered no damages, or only significantly lower damages. (4) In the event of a default the Supplier will indemnify the Buyer against claims from the Buyer’s customers, or another third party, including, but not limited to, lost profit and compensation for damages for default, contractual penalties, damages and/or consequential damages and/or payments as a result of claims for recourse against the Buyer. (5) Complete and correct documentation and, above all, the delivery of Supplier declarations are an essential component of the Supplier’s delivery obligation. A service or delivery is considered late if the correct documents are not presented on time. (6) In the event the Buyer has legitimate doubt whether the Supplier is capable of meeting his obligations in a timely manner, or of sufficient quality, the Buyer shall inform him in advance of his doubts and grant the Supplier a reasonable time period to comment on his work and -if necessary- to improve upon it and/or to speed up the work. The term “reasonable” time period is understood as a period of time after which the Buyer is still able to undertake measures to decrease or avoid, adverse consequences which are, or could be, traced back to the Supplier. In the event that the Supplier is not in a position to speed up his work and/or improve the quality up to a degree which permits the achievement of the important milestones, then the Buyer is entitled to:

  • delegate specific work orders to third parties or to conduct them himself at the Supplier’s expense,
  • delegate all remaining worked orders to third parties, or to conduct them himself, at the Supplier’s expense,
  • to terminate the contract.

6. Force Majeure Force majeure events, which are defined as circumstances which lie out of the contractual parties’ control and could reasonably not be foreseen by either of them (strikes and lockouts are, however, not to be considered force majeure events) and which prevent a contractual party in whole, or in part, from fulfilling their obligations release the corresponding contractual party for fulfilling this contract as long as the condition of force majeure exits. The contractual party affected by the event of force majeure must without undue delay inform the other party. The contractual parties will determine by mutual agreement whether, after the event of force majeure has ended, a supplementary performance for the services or delivery of goods which could not be rendered during this period should take place. In the event that an event of force majeure lasts longer than 6 weeks, or lasts so long that it seriously endangers milestones agreed upon between the Buyer and its customers, then the Buyer is entitled to:

  • transfer specific work orders to third parties at its own expense or to conduct them itself,
  • transfer all still outstanding work to third parties at its own expense or to conduct the work itself,
  • to terminate the contract.

7. Packing and Shipping (1) The Supplier is obligated to comply with the Buyer’s, and the Buyer’s customer’s specifications and requirements with regard to packaging and labeling. Legal requirements must be met. The Supplier is obligated to comply with all applicable national, supranational, international, and local

  • export control-legal provisions
  • requirements for customs authorities
  • packaging ordinances
  • labeling regulations
  • transportation regulations

(2) A bill of delivery must be included in the delivery which indicates the date (issue and shipment), contents of the delivery (product number and quantity), and order identifier of the Buyer (date and number). If the bill of delivery is missing, or incomplete, the Buyer is not responsible for resulting delays in processing and payment. Separate from the bill of delivery the Buyer must be sent a corresponding dispatch notification with the same content. In the event that an activity, or an omission, by the Supplier leads to damaged goods, delay, non-approval for export or import, or another adverse effect for the Buyer and/or a third part, then the Supplier is liable and holds the Buyer harmless. (3) The Supplier must inform the Buyer accordingly immediately after shipment of the goods. 8. Supplier and Subcontractors (1) The Supplier is not entitled to render the services owed by him through third parties (e.g. subcontractors) without the prior written consent of the Buyer. The Supplier carries the procurement risk for his services and/or goods unless it concerns a single-unit production. (2) The Supplier will do his utmost in order to ensure that he himself, as well as the subcontractors, fulfill the Buyer’s requirements resulting from the agreements. In the event that these requirements are not fulfilled the Buyer has the right to withdraw from the contract. The Supplier has the sole responsibility and liability for the services provided and the non-fulfillment of services through his subcontractors. (3) In no case – if not expressly otherwise agreed – an order by the Supplier must be laid out so that a contractual relationship is made between the subcontractor and the Buyer. (4) The Buyer has the right to inspect the Supplier’s facilities and premises, and those of his subcontractors, in order to check the progress of the work. Such inspection must be announced by the Buyer two business days in advance. The Buyer may request regular written progress reports. 9. Liability for defects (1) The Supplier guarantees that the delivered goods are of the agreed upon or usually specified appearance and workmanship, and corresponds to the state-of-the-art technology as well as the applicable specifications and norms and underlying models, free of defects, and are new and suitable for the intended purpose. (2) Unless otherwise agreed the goods must be inspected by the Buyer within a reasonable period of time for obvious quality or quantity deviations. A notice of defects by the Buyer is timely if raised within a deadline of 5 business days, is computed upon receipt of delivery, or in the case of hidden defects, is raised in time after its discovery. In this respect the Supplier waives objection of late notice of defects. In the case of transit business the notice of defects by the end customer is decisive. The Supplier bears the cost and risk of sending back defective delivery items. (3) In the event of defectiveness of the goods the Buyer is entitled to the legal rights and claims for supplementary performance, withdrawal, or price reduction as well as compensation for damages or compensation for wasted expenses unabridged and unchanged. Within the scope of the supplementary performance the Buyer is entitled at his choice, either to the remedy of the defect, or delivery of a defect-free product, from the Supplier. The Supplier is obligated to bear any expenses for the purpose of remedying the defect, replacement delivery or remedying of the damage, in particular transportation, road costs, work and material expenses. If the Supplier fails to fulfill the supplementary performance within a reasonable period of time, upon the Buyer’s legitimate request, then the Buyer is also entitled in urgent cases, to conduct the remedying of the defect himself, or through a third party, at the Supplier’s expense. The Supplier must undertake the supplementary performance within one week of notification of the discovery of the defect by the Buyer and to bring the repaired product, and/or the replacement delivery, to the site of use at its costs. In urgent cases this deadline may be reasonably shortened by the Buyer. (4) Provided the law does not specify a longer statute of limitations rights and claims as a result of defects fall under the statute of limitations within 3 years from delivery or, if required, acceptance. However, differing from this, rights and claims as a result of defects of title fall under the statute of limitations, at the earliest, 6 years after delivery, or if required, acceptance. (5) For products affected by defects which are manufactured in a series (serial damage) the Supplier must do everything in his power in order to avoid damages, or to limit them to a minimum. The Buyer is entitled to demand the exchange of damaged products at the Supplier’s expense (incl. customs clearance, taxes, packaging and transportation, expenses for the end user) and to reject all products from the series with serial damage even if they do not display any defects. Sorting, and other expenses, which result from the identification of the defective products must be borne by the Supplier. (6) For parts of the delivery which are refurbished or repaired within statute of limitations, the statute of limitations begins again at the point in time at which the Supplier has completely fulfilled the Buyer’s claims for supplementary performance. (7) In the event of subsequent improvements due to defects the parties agree that the place of performance for the supplementary performance will be the location of the use of the defective product. All expenses which the Buyer incurs in connection with the supplementary performance of the defect must be reimbursed by the Supplier. Health, Safety, and Environment (HSE), Safety Logistics, Social Standards (1) The Buyer and the Supplier considered themselves obligated to protect the environment and to help preserve natural resources as much as possible as well as, insofar as is technologically and economically possible to minimize adverse effects on the environment. Under all circumstances legal provision must be complied with. The contractual parties will endeavor to avoid dangers and negative effects which the products could pose for people. Inasmuch as the Buyer is legally obligated to take back products and/or to dispose of his products the Supplier must take back the products in the same conditions which were agreed upon on the other side between the Buyer and the Buyer’s customer, or a third party. The Buyer and the Supplier should – even beyond the duration of this agreement – cooperate in a quick and effective manner with one another in order to eliminate detected or apparent hazards which result from their products and work so that no one can be endangered by their products and their application and/or the work associated with them (Safety Logistics). Upon request, the Supplier must verify that he meets international HSE standards. (2) The Supplier is obligated to fulfill the contract only with the delivery of goods and/or the provision of services or works which can be obtained or manufactured compliant with the national and internationally applicable minimum standards relating to labor law, in particular, all conventions of the International Labor Organization (“ILO”) with regard to employment rights, working hours, compensation and occupational health and safety, as well as all respective applicable legal and regulatory provisions. The Buyer requires the Supplier, in particular, to recognize human rights and observe them. This includes, primarily the recognition of Universal Declaration of Human Rights (UNDER) of the General Assembly if the United Nations as well as the European Convention on Human Rights (ECHO). The Supplier will ensure that neither it, nor its employees, discriminates against other people based on their gender, their age, their ancestry, their race and color of their skin, their language, their homeland and social origin, their nationality, their beliefs, their religious or political affiliations, or their sexual orientation, or a disability. Further, the Supplier will ensure fair working conditions in accordance with the defined ILO core labor standards at him and at his supply chain. These are social standards recognized worldwide for the improvement of working and living conditions for all people. The minimum standards specified in the core labor standards of the ILO result from various international agreements. They address subjects such as, in particular, the ban, or abolishment of forced and compulsory labor, the protection of the right to the freedom of association, the right to collective bargaining, equal pay for male and female workforces, discrimination in employment and occupation, the minimum age for employment as well as the elimination of child labor. (3) The Supplier is obligated to ensure that his Suppliers and/or subcontractors also comply with the above named standards. 11. Compliance Code The Supplier is obligated to comply with the TALIS Compliance Code. This can be viewed at www.talis-group.com.12. Intellecutal Property Rights (1) The Supplier will indemnify and hold harmless, to full extent, including the expense of legal defense, the Buyer regarding all claims raised against the Buyer which result from the Supplier’s violation of industrial property rights, including, but not limited to patents, trademarks, copyrights, licenses, know-how, etc. (2) The Buyer transfers no ownership of his own intellectual property rights, or those of his customers, unless expressly otherwise agreed. 13. Insurance (1) The Supplier is obligated to maintain a reasonable, expanded product liability insurance for personal injury, property damages, financial losses, and  environmental damages with an insured sum of 10 million EUR at a minimum. If the Buyer is entitled to additional claims these remain untouched. (2) If the Supplier does not meet his obligations to obtain corresponding insurance the Buyer is entitled to extraordinarily cancel the contract and to claim all his financial losses which arise as a result of the cancelation from the Supplier. The Supplier is obligated to present the corresponding insurance verification.14. Documentation Certificates The Supplier undertakes to maintain an appropriate extended product liability insurance for personal damage, damage to property, pure financial loss, and environmental damages. If Buyer is entitled to further compensation claims, these remain unaffected. Care shall be taken that the insurance also covers third-party property. Buyer shall have the right to inspect the insurance documents. If despite being requested to do so, the Supplier fails to comply with its obligation to insure, Buyer shall be entitled to give extraordinary notice of termination of the contract respectively the order, and claim all its financial losses which occur due to the termination. 15. Non-disclosure covenant The Supplier is obligated to keep all information concerning the Buyer, including, but not limited to, inquiries, bids, designs provided, etc. strictly confidential. The obligation to confidentiality applies, in addition to the operative business processes and organizational relevant obligation to confidentiality, to all information which is identified as confidential, or is recognizable as operational, or business secrets, as well as to all technological know-how. Information about the Buyer which is not yet publicly known must receive the consent of the Buyer before being distributed. The legal provision of the respective applicable national and international data protection acts must be observed. The Supplier will instruct employees affected, and if necessary, third parties, of the above obligations. In the event of the violation of the obligation to confidentiality, the Supplier acknowledges that the Buyer is entitled to assert claims against the Supplier for all direct and indirect damages resulting from this violation. 16. Provision of Property of the Buyer’s or a Third Party (1) In the event that the Buyer, or a third party upon the Buyer’s request, provides tools, models, drafts, designs or other physical, or non-physical goods to the Supplier in order to make the Supplier’s fulfillment of the contract easier, the goods made available remain the property of the Buyer, or the third party, who provided them. (2) The Supplier is obligated to use the goods provided only for the purpose of fulfilling the corresponding order. They must be returned immediately after they are no longer necessary for the execution of the agreement, the contract is cancelled, or the Buyer requests their return. (3) If agreed that the Supplier should provide special tools, models, designs, or other physical or non-physical goods in order to manufacture his products, or parts, these become the property of the Buyer and the above provision shall be applied. (4) The goods – where relevant – must be identified so that they are apparent, and unmistakable recognizable, as the property of the Buyer’s or the third party. Storage, care, servicing and repairs as well as the maintenance of the tools are the Supplier’s responsibility. He will bear the corresponding expenses. The Buyer is not responsible for damages which result from the use of the goods provided. This does not apply if the damages are based on the willful intent of the Buyer. (5) In the event that the material provided by the Buyer is combined, mixed, or otherwise joined with the Supplier’s material the property of the combined materials is determined in accordance with the processed values of the combined goods. (6) The Supplier is not entitled to combine, mix, or otherwise combine software, in whole or in part, provided by the Buyer, or third parties, with other software, or parts of software, or to decompile it, without the prior written consent of the Buyer. Software or parts of software which are provided by the Buyer, or by third parties upon the Buyer’s request, may only be passed on to the Supplier’s employees who have a legitimate interest in the provision of the software. The Supplier must ensure that software, or parts thereof, is not made accessible to third parties. 17. Compliance with the REACH Regulation The Supplier is, and remains solely, responsible for ensuring that the products, parts of products, or materials delivered, correspond with the requirements of (EU) Regulation No. 1907/2006 (REACH) from 18 December 2006 with the applicable changes, and including all appendices and addendums, as well as all national regulations which were carried into effect in connection with this regulation. The Supplier guarantees that all obligations from this REACH Regulation have been met. In the event that the Buyer is confronted with financial losses, or claims from third parties which can be traced back to non-compliance with the legal provisions in accordance with the REACH Regulation and the national legislation, the Supplier is obligated to hold the Buyer harmless and indemnifies him in regard to all claims, liability, loss, damage, judgment, and external responsibility, and to bear the resulting damages or losses incurred by the Buyer. 18. Severability clause Should a provision, or part of a provision of the contract, or these General Conditions of Purchase be invalid, or become invalid, the validity of the remaining content of the contract, or the General Conditions of Purchase will remain untouched. The parties of the contract obligate themselves to replace the invalid provision with one which comes as close as possible to the original economic contractual purpose.19. Non-assignment of receivables The Supplier is not entitled, to assign confirmed, or assumed, claims against the Buyer, or against the Buyer’s customers, in accordance with an agreement between the Buyer and a customer, without the prior consent of the Buyer. 20. No reference to Buyer or TALIS The Supplier will not use the name of Buyer, or the customer of Buyer, or a project to which the Supplier contributed due to an order issued by the Buyer to the Supplier, as a reference without the prior written consent of the Buyer, or TALIS. 21. Place of Jurisdiction, Applicable Law The sole place of jurisdiction shall be the registered office of the Buyer. The Buyer is, however, entitled to sue the Supplier at his registered office. The substantive law of the Federal Republic of Germany shall apply. However, the “UN Convention on Contracts for the International Sale of Goods” (UN Sales Convention) shall not apply. Version 04/2015

Standard Terms of Business for Sale and Service (October 2020)

1. General provisions

  • TALIS Management Holding GmbH
  • ERHARD GmbH & Co. KG
  • Ludwig FRISCHHUT GmbH & Co. KG
  • STRATE Technologie für Abwasser GmbH

("us") apply only to persons who at the time when the contract is concluded are undertaking the exercise of their commercial or independent professional activity (entrepreneurs within the meaning of § 14 BGB) [the German Civil Code], and to corporate bodies under public law and special funds under public law within the meaning of BGB § 310 para. 1 BGB (hereinafter referred to as the "customer").
1.2 The STBs also apply to all future business relationships, even if they are not expressly agreed again. Standard Terms of Business of the customer which differ from these STBs, or which are contrary to these STBs, are expressly invalidated by them unless we explicitly agree to their applicability.

2. Offers and offer documents

2.1 All our offers are non-binding unless they are explicitly designated as being binding.
2.2 We retain rights of ownership, industrial property rights and copyright in respect of samples, cost estimates, drawings and similar information in any form; they must not be made accessible to third parties.

3. Object(s) supplied, amendments

3.1 The performance of the contract, in particular the characteristics of the objects that are to be manufactured or supplied by us (hereinafter referred to as the "objects supplied"), is exclusively based on our specifications. Dimensions and other tolerances are based on the respective DIN rules, or alternatively commercial practice as well as the state-of-the-art standards.
3.2 We may at any time make changes to the way in which the order is performed or to the objects supplied insofar as such changes are required in order to fulfil statutory or official requirements and they do not materially affect their properties and functions, and insofar as they are reasonable from the customer's point of view.

4. Delivery schedule, delayed delivery
4.1 Our performance or delivery schedules are non-binding unless we expressly confirm in writing that a performance or delivery schedule is binding. The performance period begins only when the customer has clarified with us all the necessary technical issues relating to the provision of the service.
4.2 Adherence to the delivery schedule is subject to correct and timely self-supply if we have concluded a matching covering transaction. We will inform the customer without delay of any emerging delays, and in the event of our withdrawal we will reimburse the corresponding consideration to it.
4.3 Once our readiness to undertake shipping is notified, the delivery schedule will be deemed to have been adhered to if shipping is delayed or cannot be carried out through no fault of our own.
4.4 If failure to adhere to the delivery schedule is attributable to force majeure, legal labour disputes or other events which are outside of our control, the delivery schedule will be appropriately extended. We will notify the customer of the start and end of such circumstances at the earliest opportunity.

5. Transfer of risk, acceptance inspection, delayed acceptance
5.1 In the case of sold products the risk is transferred to the customer on an ex-works basis (EXW INCOTERMS 2020), or immediately upon notification of readiness to ship in the case of shipping delays for which the customer is responsible. If an acceptance inspection has to be carried out, it will determine the transfer of risk. The following clauses 5.2 to 5.6 apply to the acceptance inspection.
5.2 We inform the customer that the services are ready to be inspected.
5.3 A report that is signed by both parties is drawn up in relation to the acceptance inspection. Acceptance cannot be refused due to minor defects. They must be rectified under the guarantee and be recorded in the acceptance report.
5.4 If the customer justifiably refuses to accept the product(s)/service(s) due to existing defects, we will rectify those defects without delay and resubmit the product(s)/service(s) concerned for the acceptance inspection.
5.5 If the customer delays carrying out the acceptance inspection, we may set an appropriate extension period with reference to the consequences according to sentence 2. After the expiry of this extension period the services will be deemed to have been accepted.
5.6 If the customer brings into use - other than for mere testing purposes - articles in respect of which we have carried out assembly or other works, the services are deemed to be accepted.
5.7 Partial deliveries are permitted insofar as they are reasonable from the customer's point of view, and we will bear the additional shipping costs that are caused.
5.8 If delayed acceptance by the customer leads to a delivery delay, we may demand a monthly flat rate storage fee (pro-rated as applicable) of 0.5% of the invoice amount of the stored goods per week or part thereof, subject however to an overall maximum of 10%. The customer is free to assert that a lesser loss has been caused. Alternatively, we are also entitled to have the goods stored by a haulage contractor and to charge the customer the actual expenditure that is incurred by doing so.

6. Prices and payments
6.1 Unless otherwise agreed, our prices are ex-works (EXW, INCOTERMS 2020). Packaging costs are charged separately based on the expenditure involved.
6.2 The respective statutory Value Added Tax that is applicable must be added to the prices. The Value Added Tax is shown separately in the invoice.
6.3 If more than four months elapses between the concluding of the contract and the date of supply, we are entitled to increase prices. However, we may only do so insofar as it is necessary to compensate for resulting increases in costs, which will be disclosed to the customer on request. The customer is likewise entitled to a price reduction after the aforementioned period if the overall costs decrease, and in the case of substantial price increases the customer has a right of withdrawal in accordance with the legal provisions.
6.4 The minimum order value of orders placed at Erhard GmbH & Co. KG is EUR 250 nett. If the minimum order value is not reached, a processing fee of EUR 75 will be charged by Erhard GmbH & Co. KG. The customer is free to assert that a lesser loss has been caused.
6.5 Invoices are payable upon receipt. Initial invoices for new customers are processed on the basis of advance payment by the customer. If the customer does not pay within 14 days following the invoice date, it falls into arrears even without any reminder being issued. The timeliness of payments depends on when the amount is received by us, and specifically when the amount is credited to our account.
6.6 If the customer falls into arrears, statutory arrears interest will be incurred in addition to the purchase price. All further contractual rights remain reserved, in particular we reserve the right to claim a greater amount of damages.
6.7 If the customer has agreed a partial payment with us and if the customer fails to pay at least two consecutive instalments on time, we may make all payments immediately due once we have sent a payment reminder with an appropriate deadline.
6.8 If payment by direct debit is agreed between the customer and ourselves within SEPA (the Single Euro Payments Area), this is done on the basis of the issuing by the customer of a written SEPA mandate. The pre-notification period is shortened to one day. We will inform the customer of the precise collection date via the pre-notification.
6.9 The customer warrants that it will maintain sufficient funds in the account. Costs for which the customer is responsible due to the non-payment or reversal of the direct debit are borne by the customer.
6.10 The customer is not entitled to assign its claims against us. This does not apply insofar as § 354a HGB [German Commercial Code] is applicable.
6.11 The customer is entitled to offset and withhold amounts in relation to counter claims which do not arise from the same legal relationship as the main claim only insofar as its counter claims are uncontested or have been ascertained by court in a legally binding decision.
6.12 Otherwise the special provisions in Section 15 apply in respect of prices and payments for services.

7. Reservation of proprietary rights
7.1 The objects supplied by us remain our property until all the amounts receivable arising from the current business relationships have been paid in full ("reserved goods").
7.2 The customer is however entitled to undertake resale in the normal course of its business activities. It already assigns its amounts receivable from resale to us to the extent of the amounts that are owed to us. This applies regardless of whether or not the objects supplied by us are subjected to further processing prior to being resold, or whether or not they are combined with land or moveable property. If the reserved goods are processed together with objects which are not our property, the processing is undertaken on our behalf as the manufacturer, and we acquire joint ownership of the new object according to the value of the reserved goods in relation to the other processed goods. In the event of resale following processing together with objects which are not our property, or in the event of combining with land or moveable property, the customer's amount receivable from its purchaser is deemed to be ceded in the amount of the price that is agreed between the customer and us.
7.3 The customer is entitled to collect the ceded amounts receivable for as long as it fulfils its payment obligation to us in accordance with the contract. The customer is not entitled to make other dispositions regarding the objects which are subject to the reservation of proprietary rights (e.g. transfer by way of security or pledging). In the case of interventions by the customer's creditors relating to the objects which are subject to the reservation of proprietary rights, the customer must immediately notify us and also inform the creditor in writing of the reservation of proprietary rights. If we make a claim pursuant to § 771 ZPO [Code of Civil Procedure] in the event of attachments or other interventions, and if the third party is unable to reimburse the corresponding judicial and extra-judicial costs to us in the event of our claim being upheld, the customer shall be liable for any financial loss that is incurred.
7.4 Upon request we undertake to release the securities to which we are entitled insofar as their value exceeds the as yet unpaid share of the amount receivable that is to be secured by more than 20%.
7.5 If the customer falls into payment arrears, or if an application is made to open insolvency proceedings in respect of the customer's assets, or if the customer discontinues its payments, we may demand that the customer informs us of the ceded amounts receivable and the debtors in relation to them, provides us with all the information required for collection, and hands over documents to us and informs its debtors of the assignment.
7.6 The customer is obliged to insure - at its own expense and at the contractually agreed premium and throughout the period of the reservation of proprietary rights - the objects which have been supplied by us against all possible perils (e.g. fire, water damage, theft due to forcible and violent entry and full theft, vandalism etc.). It shall assign its claims to us up to the value of the objects concerned, or up to the amount of our still outstanding amounts receivable under the insurance.

8. Warranty
In the event of defective performance we are liable as follows:
8.1 Defects claims do not exist in the case of only minor deviations from the agreed characteristics or in the case of only minor impairment of usability.
8.2 If the works supplied or the newly supplied parts evidently have physical defects, in particular due to defective structure or materials or defective design, they must either be rectified by us without charge or re-supplied by us according to the option that is chosen by us (subsequent performance). The customer must allow us a reasonable period of necessary time and a reasonable opportunity to carry out subsequent performance. If it refuses to do so, we are exempted from the obligation to undertake subsequent performance. Replaced parts pass into our ownership.
8.3 Liability for physical defects is excluded if they are attributable to the natural wear of wear parts (e.g. O-rings, spindle nuts, insulating clamps and rubber parts) or to damage which has occurred after the transfer of risk or acceptance as a consequence of defective or negligent handling, excessive loading, unsuitable work materials/equipment, defective works, or unsuitable subsoil, or chemical, electromagnetic, electrical or similar influences. The guarantee is also invalidated if the customer without having our agreement to do so alters the newly supplied parts or the works that have been carried out, or has them altered by third parties, and if the rectification of defects thereby becomes impossible or is made unreasonably difficult. In each case the customer must bear the additional defect rectification costs which are caused by the alteration.
8.4 If we fail to comply with a demand for rectification despite the existence of a corresponding defect and despite having been given in writing a reasonable period in which to carry it out, or if the customer cannot reasonably be expected to accept further attempts to carry out rectification, the customer may have the rectification carried out by third parties and may demand from us reimbursement of the required reasonable expenses for doing so. If the rectification carried out by us has repeatedly failed, the customer has a free choice between exercising the right to secure a reduction of the price or withdrawing from the contract.
8.5 If there is a statutory duty to bear the costs of the necessary expenditure for rectification that are incurred, we are not obliged to bear them insofar as the expenditure is increased due to the fact that the object of the supplies or services is transported to a location other than the customer's business premises. This does not apply if the transportation is for the purposes of the object's intended use. The applicability of BGB § 445a and 478 (seller's recourse claim) remains unaffected. Notwithstanding our further claims, in the event of an unjustified notice of defect the customer must reimburse to us the inspection/checking expenditure for checking work, and - if demanded - the expenditure for rectifying the defect.
8.6 Further claims by the customer against us in respect of defective works or defective newly supplied parts are excluded, in particular for the reimbursement of consequential losses such as loss of use and loss of profit. This does not apply if there is mandatory liability according to the Produkthaftungsgesetz [German Product Liability Act] in the case of bodily injury or of loss or damage to privately used property, or in the case of intent, gross negligence or the breaching of material contractual obligations. Claims by the customer due to loss or damage which has arisen to the object of the works itself are governed by Section 10.

9. Limitation of defect claims
9.1 The limitation period for claims and rights due to defects in supplies or services, irrespective of the legal basis, is one year. However, this does not apply in the case of BGB § 438 para. 1 no. 1 (defective title in relation to immovable property) or BGB § 438 para. 1 no. 2 (structures, property used for structures) or BGB § 634a para. 1 no. 2 (structures or works whose success consists in the provision of planning or monitoring services therefor). The excepted cases referred to in sentence 2 above are subject to a limitation period of three years. However, the provisions of this para. (1) do not apply as a whole to the limitation of the seller's recourse claim according to BGB § 445b para. 1 in the event that the ultimate purchaser is a consumer.
9.2 The limitation periods according to para. (1) also apply to any compensation claims made against us that are connected to the defect - irrespective of the legal basis for the claim.
9.3 However, the limitation periods according to para. (1) and para. (2) apply subject to the following proviso:
a) The limitation periods do not generally apply in the case of intent or the fraudulent concealing of a defect, or if we have agreed to provide a guarantee for the characteristics of the supplied object.
b) The limitation periods also do not apply to compensation claims in the event of a grossly negligent breach of duty, in the event of the culpable breaching of material contractual duties which does not consist of the supplying of a defective product or the provision of defective works, or in cases of the culpable causing of death, bodily injury or health impairment, or in the case of claims under the Produkthaftungsgesetz.
c) The limitation periods for compensation claims also apply to the reimbursement of wasted expenditure.
9.4 The limitation period begins upon delivery in the case of all claims, and in the case of works when acceptance takes place.
9.5 Unless specifically stated otherwise, the statutory provisions remain unaffected in relation to when the limitation period starts to run, the suspension of its expiry, and the suspension and recommencement of time limits.
9.6 The aforementioned provisions apply correspondingly to compensation claims that are not connected with a defect; para. (1) sentence 1. applies accordingly to the limitation period.
9.7 No change to the burden of proof to the detriment of the customer is associated with the aforementioned provisions.

10. Other liability
10.1 We are liable in cases of intent or gross negligence on our part or the part of one of our representatives or servants as well as in the case of the culpably caused loss of life, bodily injury and/or injury to health in accordance with the statutory provisions. Otherwise we are only liable under the Produkthaftungsgesetz due to the culpable breaching of material contractual duties, or if we have fraudulently concealed the defect or have agreed to provide a guarantee for the characteristics of the supplied object.
10.2 The provisions in para. (1) above apply to all compensation claims (in particular for damages in addition to the service and damages instead of the service), irrespective of the legal reason, and in particular due to defects and the breaching of duties arising from contractual obligations or under tort. They also apply to claims for the reimbursement of wasted expenditure.
10.3 Our liability in respect of the impossibility of performance or default and in respect of the reimbursement of wasted expenditure is limited in total to 10% of the value of the service. Further claims by the customer in respect of the impossibility of supply or default are also excluded after the expiry of any deadline that is set for us in relation to the provision of the service. The customer's right to withdraw from the contract remains unaffected. The restriction and exclusion do not apply in the case of the culpable breaching of material contractual duties.
10.4 Compensation claims in the event of gross negligence or the breaching of material contractual duties are limited to the loss which is foreseeable and typical under contract if another of the exceptional circumstances specified in para. (1) does not simultaneously apply.
10.5 No change to the burden of proof to the detriment of the customer is associated with the aforementioned provisions.

11. Ex gratia claims
11.1 Returns in return for a credit can only take place with our prior written agreement. In the case of returns of items with a net sales price of less than EUR 500 (relating to the individual product within each item (price per individual unit)) credit notes are not generally issued.
11.2 Generally excluded from returns are valves or pipe fittings which
a) are not (any longer) included in the product portfolio,
b) are produced on a one-off basis,
c) returns of valves or pipe fittings which are made more than 12 months after the original supplying of the item (delivered more than 12 months ago),
d) are already installed, as well as
e) accessories.
11.3 In the case of the free-of-charge return of in-stock, as-new valves or pipe fittings, a maximum credit of 60% of the net invoice value is provided if the return takes place within 6 months following the original supply. Furthermore, we are entitled to deduct from / offset against the net invoice price that is to be reimbursed all the costs that are expended by us as a result of the return, in particular outward and return freight charges, freight settlement amounts, cartage charges, hauliers' costs, reconditioning costs, and prompt payment discounts that have been reduced upon payment etc.
11.4 We explicitly draw attention to the fact that returns can only be accepted following prior written approval and subject to the enclosing of the return waybill.

12. Advertising
We draw the customer's attention to the fact that from time to time we send to the email address that we have received from the customer in connection with the sale of a good or a service information about similar goods or services (such as the latest news, contact partners, customer satisfaction surveys etc.). The customer can cancel this use of the emails at any time by using the previously provided contact details or by using a link in the email in question, without incurring any costs for doing so other than transmission costs at the basic rate.

13. Use of software
Insofar as software is included within the scope of supply, the customer is granted a non-exclusive right to use the supplied software including the documentation that is provided for it. It is provided for use in the object supplied for which it is intended. Use of the software in more than one system is forbidden. The customer may only reproduce, revise or translate the software - or change it from the object code to the source code - insofar as this is legally permitted (§ 69 and following of the UrhG [Copyright Act]). The customer undertakes not to remove the manufacturer's details - in particular copyright marks - or to alter them without obtaining our prior written permission to do so. All the other rights relating to the software and the documentation, including the copies of it, are retained by us and/or the software supplier. The granting of sub-licences is not permitted.

14. Replaced, exchanged or newly supplied parts
Exchanged or replaced parts may differ from the original parts as regards their shape and colour and the material that they are made from, provided that their quality, functionality or durability is not inferior to or less than that of the original parts.

15. Special provisions relating to servicing
15.1 In cases in which the order has to be carried out by us on site, the customer must ensure,
a) that the available plant can as far as possible be accessed by our employees in a depressurised, emptied and non-operational condition,
b) that plant-specific tools/supplies that are required, such as scaffolding, ladders, forklift trucks, cranes, water, electricity, compressed air, gas monitors, or breathing apparatus etc. is provided free of charge,
c) that the available plant is disconnected and/or tanks are emptied as necessary,
d) in the case of weights of over 20 kg, that appropriate lifting aids or assembly aids are provided free of charge,
e) that the available plant is cleaned in at least in a rudimentary fashion,
f) if necessary, that a workplace is available for drawings and the storage of documents as well as suitable changing rooms and washing facilities,
g) that for the purpose of bringing valves into service the existing plant is fully mechanically, electrically, pneumatically and hydraulically installed and operational, and that sufficient fluid (water, gas etc.) is available at short notice (max. 1 hour).
15.2 Waiting periods for which the customer is responsible are billed according to expenditure based on the current service and maintenance conditions.
15.3 We are also entitled to use sub-contractors for carrying out the inspection and repair works.
15.4 For the provision of all services we require a written order which specifies the work site. Agreed schedules for servicing works must be confirmed in writing by the customer at least one week prior to the final time of departure. In order to carry out training sessions, we need the precise details of the site where it is to be provided, the timetable, number of participants, and the required training content.
15.5 If despite having had prompt notification the customer or a designated customer representative is not present at the time when the works are completed, the findings made by our service personnel are deemed to be binding, and we will advise the customer of this again before undertaking the works.
15.6 The customer shall carry out the acceptance of the works that have been contractually provided within one week following the completion of the works. Acceptance subject to reservations is not permitted. If the customer brings into use articles in respect of which we have carried out works for other than mere testing purposes, the services are deemed to be accepted.
15.7 Cost estimates for the overall costs or the duration of inspection or repair works are non-binding unless otherwise expressly agreed in writing. The customer is obliged to pay the calculated fee even if it exceeds the costs estimate which is stated to be binding by up to 20%. Our services are billed according to the hourly rates and the prices of materials that are valid when the order is placed.
15.8 We charge:
a) our respective costs rates which are applicable at the time when the order is placed for each hour of working, travel or waiting time, irrespective of whether the time involved is overtime, night-work or work on Sundays.
b) Periods of waiting time for which we are not responsible as well as other additional services that have not been agreed are charged as normal working time and are billed based on a separate time sheet.
c) For assignments carried out under difficult conditions (e.g. extreme heat or noise levels), and in the case of activities which are subject to the Strahlenschutzverordnung [German Radiation Protection Ordinance] the next higher costs rate applies.
d) For travel costs the applicable costs rate (travel allowance) at the relevant time for the service vehicle, or alternatively the costs of 2nd class rail travel or flight costs, plus any surcharges for the transportation of luggage, parts and tools. For installed spare parts the respective current list prices.
e) For materials to be provided by the customer, our cost prices.
f) Other costs such as telephone charges and similar items based on evidence. The time sheets that are signed off by the orderer / customer / final customer are used as the basis for settlement; if owing an important reason it is not possible to sign off the time sheets, the hours recorded by the service personnel apply.
g) Signature of the sheets also confirms that the assembly work has been properly carried out. If for any reason the assembly work has not been able to be completed to the customer's satisfaction, this must be noted in an abbreviated form in the "Comments" section of the time sheet.
15.9 If there is a change to a cost item due to statutory changes, changes to standard wage rates, or due to increases in material or ancillary costs, we are entitled to adjust the price accordingly. We may increase the price at the earliest two years after the concluding of the contract, subject to providing 6 weeks' advance written notice prior to a quarter-end.
15.10 If the customer gives notice to cancel the works upon completion of the works without us being responsible for this, we are entitled to make the claims set out in BGB § 649. Instead of making the claims set out in BGB § 649, we may demand the following flat-rate amounts to cover our expenditure and loss of profit: 15% of the agreed total remuneration if notice of cancellation is given 1 to 19 working days prior to the scheduled date of the works. 25% of the agreed total remuneration if notice of cancellation is given on the scheduled date of the works itself. This does not apply if the customer proves that the amount to which we are entitled according to BGB § 649 is significantly less than the flat-rate amount.

16. Place of jurisdiction, place of performance, applicable law and severability clause
16.1 The exclusive place of jurisdiction is Ulm, including for judicial cases relating to defaults and bills of exchange. We are however entitled to choose any other place of jurisdiction that is responsible for the customer.
16.2 For all the legal relationships between the customer and ourselves the law of the Federal Republic of Germany which is applicable to the reciprocal legal relationships of domestic parties shall apply, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
16.3 Any ineffectiveness of individual provisions of the contract does not affect the validity of the other provisions or of the contract itself.

As at: October 2020