General Terms and Conditions of Business for Delivery and Performance

1. General information
1.1 These General Terms and Conditions of Business apply to all orders placed through the GEMÜ Gebr. Müller Apparatebau GmbH & Co. KG online shop.
1.2 The range of products in our online shop is solely intended for Purchasers deemed entrepreneurs within the meaning of Section 14(1) of the German Civil Code (BGB). Insofar as these are natural persons, they must be at least 18 years of age.
1.3 Our deliveries, services and offers are provided solely on the basis of these general terms and conditions of business. The General Terms and Conditions of Business therefore apply to Purchasers as well as to all future business relationships, even where they are not expressly agreed again. Any deviating, conflicting, or supplementary Purchaser general terms and conditions of business will only form part of the contract where we have given our express consent to them. This consent is required in all cases, for example even if we acknowledge the Purchaser's general terms and conditions of business and supply the goods without reservation.
1.4 It is possible to conclude contracts in German, English and French.
1.5 The currently valid general terms and conditions of business can be accessed and printed out at any time on our website.
1.6 References to the validity of legal provisions are made for clarification purposes only. Even if clarification is not provided, legal provisions apply unless directly amended or expressly excluded within these General Terms and Conditions of Business.

2. Conclusion of contracts
2.1 The presentation of goods in our online shop does not represent a binding offer of conclusion of a purchase agreement. It is instead a non-binding invitation to order goods in the online shop. Products can be selected from this presentation of goods, reserved in a shopping basket and ordered. Before submitting the order, the Purchaser is given the opportunity to once again check and, if necessary, amend all details of their order (e.g. item designation, item quantity, name, address, method of payment) under the tab for the respective order step.
2.2 The Purchaser only makes a binding offer of purchase as defined by Section 145 BGB once they click on the "Buy now" button. This is only possible once acknowledgement and acceptance of our General Terms and Conditions of Business has been confirmed.
2.3 Once the offer of purchase has been received, the Purchaser is sent an automatically generated e-mail containing confirmation that we have received the order (acknowledgement of receipt). This acknowledgement of receipt does not represent acceptance of the offer of purchase. Acknowledgement of receipt does not constitute conclusion of a purchase agreement. The contractual provisions, including a further reference to our General Terms and Conditions of Business, are provided to the Purchaser with the acknowledgement of receipt.
2.4 A purchase agreement for the goods is only concluded once we expressly declare our acceptance of the offer of purchase (order confirmation). The text of the contract (comprising the order, General Terms and Conditions of Business and order confirmation) are sent to the Purchaser by e-mail in the order confirmation. Where the Purchaser has given us a standard e-mail address for the purpose of processing their orders, the respective order confirmation will always be sent to this e-mail address. If desired, the Purchaser can receive confirmation of dispatch before the goods are dispatched. The order confirmation and dispatch confirmation can also be provided to the Purchaser in an e-mail. The Purchaser can also save, print and otherwise obtain from us the contents of their order immediately after submitting it.

3. Prices
3.1 Prices are quoted ex delivery works, unless otherwise indicated in the order confirmation, excluding packaging and statutory VAT. Any customs duties, fees, taxes or other public duties are borne by the Purchaser.
3.2 The corresponding forwarding costs are indicated on the specification form and are borne by the Purchaser. If none are specified, we will cover the forwarding costs. In any case, the Purchaser bears the costs of any transport insurance required by the Purchaser.

4. Delivery, transfer of risk, default of acceptance, delivery times
4.1 The goods are dispatched to the delivery address indicated by the Purchaser. Unless otherwise agreed, we are entitled to determine the means by which the goods are shipped (in particular with regard to the carrier, route and packaging).
4.2 Upon dispatch of the goods, the risk of random loss or deterioration of the goods is transferred to the carrier, freight forwarder or person or organisation otherwise intended to complete the delivery. Insofar as acceptance is agreed, this is taken as the point of transfer of risk. In other respects, the legal provisions of the German law on contracts for work and services (Werkvertragsrecht) apply to the agreed acceptance process. The same apply to the handover and acceptance process in the event that the Purchaser is in default of acceptance.
4.3 Should the Purchaser be in default of acceptance or fail to provide necessary cooperation, or if our delivery is delayed for other reasons for which the Purchaser is responsible, we are entitled to demand compensation for the resulting damages. For this purpose, we calculate lump-sum compensation of 0.5% of the order value per week, up to a maximum of 10% of the order value, starting on the delivery date or – in the absence of a delivery date – on the date on which notification was provided that the goods were ready for dispatch. The right to evidence higher damages and our statutory claims (in particular, to compensation for additional costs, appropriate compensation, termination) remain unaffected; however, this lump-sum compensation is offset against further monetary claims. The Purchaser has the right to demonstrate that no damages or significantly less damages have been incurred than the aforementioned lump sum.
4.4 Deadlines and dates for delivery and performance to which we commit are always deemed to be approximate unless a fixed deadline or date has been explicitly confirmed or agreed. A default in delivery on our part is determined in accordance with the legal provisions. However, the Purchaser must issue a reminder in every case. If the delivery times are not complied with, an appropriate grace period of at least 21 working days is required before any rights can be asserted.
4.5 We are entitled to provide part deliveries and partial services unless this would unreasonably disadvantage the Purchaser.
4.6 Where and to the extent we are unable to meet binding delivery agreements or times for reasons for which we are not responsible (Non-Availability of Delivery or Service), we will inform the Purchaser without any undue delay and, at the same time, provide the new expected delivery time. If the delivery or service is still not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we will reimburse the Purchaser without any undue delay for any consideration already paid. Any claims for damages by the Purchaser shall be excluded.
Non-Availability of Delivery or Service includes, but is not limited, to (i) cases of Force Majeure or other events which were not foreseeable by us at the time the contract was concluded and that are outside of our reasonable control (e.g. natural disasters of any kind, such as earthquakes, bad weather, floods, volcanic eruptions; pandemics; epidemics; plagues; war; acts of war or terror; riots; unrest; civil or national state of emergency; governmental actions; strikes; lawful lockouts; sustained traffic disruptions such as traffic routes being blocked; official measures; export restrictions or bans; prolonged break-down of information systems or energy; operational disruptions through no fault of ours) or (ii) where our supplier does not provide the delivery on time if a congruent hedging transaction has been concluded or (iii) in case of a Non-Availability of Delivery or Service on the part of the supplier.
4.7 The rights of the Purchaser in accordance with Clause 9 of these General Terms and Conditions of Business and our statutory rights, particularly concerning the exclusion of our obligation to provide performance (e.g. if the performance and/or subsequent performance cannot or cannot reasonably be provided), remain unaffected.

5. Performance specification, ownership and copyright to documents and auxiliary materials
5.1 The shipping weights and dimensions specified in the printed materials and product descriptions are as accurate as possible but should nevertheless be understood as approximate specifications, except where usability for the contractually intended purpose requires exact compliance. The specifications in the order confirmation shall be considered as definitive for determining the quality of the goods. Specifications regarding the intended use shall only be used to determine whether the goods correspond to the quality agreed in the agreement if we have confirmed the intended use in writing. In principle, we work in accordance with the standards that apply within the European Union; if standards that deviate from EU standards are to be used, the Purchaser must indicate this to us prior to conclusion of the contract. Outside of the European Community, ensuring compliance with the relevant statutory requirements for product safety is the responsibility of the Purchaser; any costs resulting from this, in particular for required tests or certification, are borne by the Purchaser.
5.2 We retain title and copyright to all quotations and estimates that we issue as well as to drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and auxiliary materials made available to the Purchaser. The Purchaser must not make these items or the content thereof accessible to third parties, disclose, use or duplicate them or have them used or duplicated by third parties without our express consent. At our request, the Purchaser shall return these items to us in full and destroy any copies made once they are no longer needed by the Purchaser in the ordinary course of business or if negotiations do not result in the conclusion of a contract. An exception is made for storage of data made available by electronic means for data backup purposes.

6. Payment, purchase price due date
6.1 We deliver on account or following prepayment at our discretion. Invoices are in euros and currency risks are borne by the Purchaser. The Purchaser is only entitled to offset or withhold payment if the counterclaims have been established as legally binding or are indisputable. In the event of defective delivery, the opposing rights of the Purchaser, in particular those set out in the second sentence of Clause 8.5 of these General Terms and Conditions of Business, remain unaffected. Cash payments or payment by cheque or bills of exchange are excluded unless agreed separately on a case-by-base basis.
6.2 The purchase price becomes due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, including within an ongoing business relationship, to make a full or partial delivery contingent on prepayment. We will declare reservations of this nature upon confirmation of the order at the latest. The Purchaser is deemed to be in default upon expiry of the aforementioned payment term.
6.3 Interest is paid on the purchase price at the applicable statutory rate during the period of default. We reserve the right to bring additional claims for damages caused by arrears. Our right to charge merchants commercial default interest (Section 353 of the German Commercial Code [HGB]) remains unaffected.
6.4 We are entitled to withhold other deliveries, even where a date of delivery has already been confirmed, until all receivables due under the same legal relationship have been settled in full, and the Purchaser is not entitled to any form of claims for damage as a result of this.
6.5 Payments count towards multiple existing receivables in the order provided for by Section 366(2) BGB; Purchaser repayment terms to the contrary do not apply. Any agreed discount deductions shall only be recognised if no other invoices were due for payment at the time of receipt of the payment.

7. Retention of title
7.1 The delivery items remain our property until the Purchaser has settled all receivables, including future receivables, resulting from the purchase agreement and the ongoing business relationship (secured claims), in particular any current account balance.
7.2 The Purchaser may neither assign nor collateralise the delivery items prior to payment in full of the secured claims.
7.3 If the Purchaser violates the terms of the contract, in particular if the Purchaser fails to pay the purchase price due, we are entitled, in accordance with the legal provisions, to withdraw from the contract and/or request for goods to be returned due to the retention of title. The request for goods to be returned does not represent our withdrawal from the contract; rather, we are entitled to request that the goods be returned while retaining the right to withdraw. Should the Purchaser fail to pay the purchase price due, we may only exercise these rights if we have previously set a grace period for the Purchaser to make the payment and this grace period has expired without remedy, or the setting of such a deadline is unnecessary under the terms of the legal provisions.
7.4 As part of the ordinary course of business, the Purchaser is authorised, up until withdrawal from the contract in accordance with (c), to sell and/or process goods for which there is retention of title. In this case, the following supplementary provisions apply:
(a) The retention of title extends to the full value of the outcome of any processing of our goods or if these goods are combined or connected in any way. We are considered to be the manufacturer in this instance. Should our goods be processed, combined or connected to a third party's goods, where the third party's right of ownership exists, we shall apply for co-ownership in proportion with the invoice value of the reprocessed, combined or connected goods. Furthermore, the same provisions apply to these outcomes as to the goods delivered with retention of title.
(b) As collateral, the Purchaser shall assign to us all receivables from third parties resulting from the further sale of goods or outcomes either in total or in proportion to our share of the co-ownership in accordance with the preceding paragraph. We hereby accept the above assignment.
(c) The Purchaser remains authorised to collect the receivables in addition to us. We undertake not to collect receivables provided that the Purchaser fulfils their payment obligations to us, there are no problems regarding their ability to pay and we do not exercise the retention of title by asserting a right in accordance with Clause 7.3. However, should any of these circumstances arise, we may demand that the Purchaser informs us of the assigned receivables and their debtors, provides all the information required for the collection of receivables, provides the relevant documentation and informs the debtors (third parties) of the assignment. In this case, we are furthermore entitled to withdraw the Purchaser's authorisation to further onward sales and processing of the goods under the retention of title.
7.5 If the realisable value of our collateral exceeds our receivables by more than 10%, we shall release collateral of our choice at the Purchaser's request.
7.6 The Purchaser must treat the reserved goods with care. They must adequately insure them at replacement value against fire, water and theft at their own expense. To the extent that maintenance and inspection work is required, the Purchaser must carry this out at their own expense in good time.
7.7 The Purchaser must inform us in writing without delay if an application is filed for the opening of insolvency proceedings, or if third parties access goods belonging to us (e.g. seizures). In the event of seizures of reserved goods by third parties or other interventions by third parties, the Purchaser must indicate our ownership to the third party in question. We must be notified of seizures of assigned receivables in writing without delay; in addition, the Purchaser must indicate our ownership of the receivables. Unless the third party is in a position to reimburse us for legal expenses and out-of-court costs, the Purchaser is liable for these costs.
7.8 If formal steps are required under the applicable law for enforcement of the above rights, such as registration of the delivery items, the Purchaser undertakes to inform us of this and assist with such steps. If any individual provisions of the retention of title are invalid in accordance with applicable law, a provision that approximates the invalid provision and is permissible in accordance with applicable law will be deemed to have been agreed.

8. Warranty for defects
8.1 In the event of material defects and defects of title (including incorrect or incomplete deliveries, faulty assembly or inaccurate assembly instructions), the legal provisions apply with regard to the Purchaser's rights unless otherwise agreed in the following.
8.2 Our liability for defects is above all based on the agreement concluded on the nature of the goods. All product descriptions that form part of the individual contract or that we have published (in particular, in catalogues or on our website) are considered agreements on the nature of the goods. To the extent that the nature of the goods has not been agreed, the presence of a defect must be judged in accordance with the statutory regulations (second and third sentence of Section 434(1) BGB). However, we accept no liability for public statements issued by third parties (e.g. advertising messages).
8.3 Claims for defects on the part of the Purchaser require the Purchaser to have fulfilled their statutory inspection and notification obligations (Sections 377 and 381 HGB). Should a defect become apparent during delivery, inspection or at a later time, we must be notified that this is the case in writing and without delay. In any case, obvious defects must be reported in writing within five working days of delivery, and defects that cannot be discovered during the inspection must be reported in writing within five working days of their discovery. The notification of defects in a part delivery does not also constitute notification regarding the entire delivery, even if the affected product was manufactured in the same production batch. Should the Purchaser fail to correctly inspect the goods or provide notification of defects, our liability is excluded for defects which have not been notified, have not been notified in good time or have not been notified properly.
8.4 If the delivered item is defective, we may initially decide whether we wish to provide supplementary performance by remedying the defect (rectification of defects) or by delivering an item that is free of defects (replacement delivery). Our right to refuse supplementary performance in accordance with legal requirements remains unaffected.
8.5 We are entitled to make the necessary supplementary performance dependent upon the Purchaser paying the purchase price due. However, the Purchaser is entitled to withhold a portion of the purchase price in accordance with the extent of the defect.
8.6 The Purchaser must give us time and occasion to provide supplementary performance and must hand over the goods in question for inspection purposes. In the event that a replacement delivery is provided, the Purchaser must return the defective goods to us in accordance with the legal provisions.
8.7 We shall bear the expenses necessary for the purpose of providing the supplementary performance, in particular transportation, toll, labour and material costs. Should the Purchaser have installed a defective item in another item or attached it to another item in accordance with its type and intended purpose, we will compensate the buyer for the costs required to remove the defective item and install or attach the rectified or replacement item; however, we must be granted the opportunity to perform such removal and installation work. Section 442(1) BGB then applies, with the proviso that, with regard to Purchaser knowledge of defects, the installation or attachment of the defective goods by the Purchaser applies in place of the conclusion of the contract. If no defect is present, we may demand compensation from the Purchaser for costs resulting from the unwarranted rectification measures taken (in particular, inspection and transport costs), unless the Purchaser was unable to determine that no defect was present.
8.8 Should the supplementary performance fail or a reasonable grace period for supplementary performance set by the Purchaser elapse without remedy or be unnecessary under the terms of the legal provisions, the Purchaser may withdraw from the purchase agreement or reduce the purchase price. However, this right to withdraw does not exist in the case of an insignificant defect.
8.9 The assertion of claims from supplier recourse shall be limited to 62 months after delivery of the goods to the Purchaser.
8.10 Purchaser claims to compensation or reimbursement of wasted expenses may only be brought, even in the case of defects, in accordance with Clause 9, and are otherwise excluded.

9. Other liability
9.1 Unless otherwise regulated by these General Terms and Conditions of Business, including the following provisions, we are liable for infringement of contractual and non-contractual obligations in accordance with the legal provisions.
9.2 We are liable for compensation – regardless of the legal grounds – in the context of fault-based liability in the case of intent and gross negligence. In the case of minor negligence, we are liable, subject to a smaller scope of liability, in accordance with the legal provisions (e.g. diligence in our own affairs) solely
a) for damages resulting from injury to life, limb or health,
b) for damages resulting from a significant breach of an essential contractual obligation (an obligation, the fulfilment of which enables the proper execution of the contract and on which the contractual parties can routinely rely); in this case, our liability is nevertheless limited to compensation for damages that are foreseeable and typical.
9.3 The limitations of liability arising from Clause 9.2 also apply in the event of breaches of obligations by or for the benefit of individuals for whose culpability we are responsible under law. They do not apply to the extent that we maliciously conceal a defect or have provided a guarantee for the nature of the goods, or for Purchaser claims under the German Product Liability Act.
9.4 In the event of a breach of a contractual obligation that is not related to a defect, the Purchaser may only withdraw from or terminate the contract if we are responsible for the breach. A free right of termination on the part of the Purchaser is excluded. The legal requirements and consequences apply in all other respects.

10. Limitation period
10.1 Notwithstanding Section 438(1) no. 3 BGB, the limitation period for claims for defects, with the exception of claims for damage, is twelve months after delivery. Insofar as acceptance is agreed, this limitation period starts upon acceptance. Claims for damage are regulated by Clause 10.3.
10.2 However, should the goods refer to a construction or goods that are used for a construction in accordance with their normal manner of use and should this result in a defect in said construction (construction material), the limitation period is five years from delivery in accordance with the legal provisions (Section 438(1) no. 2 BGB).
10.3 The statutory limitation periods under commercial law also apply to contractual and non-contractual Purchaser claims for damage relating to defective goods, unless the application of the ordinary legal limitation period would lead to a shorter limitation period in the case in question. However, the limitation period for Purchaser claims for damage in accordance with the first and second sentences of Clause 9.2 and 9.2 a) and in accordance with the German Product Liability Act is exclusively in accordance with the statutory limitation periods.

11. Arbitration, applicable law
11.1 Insofar as the contractual partners are merchants within the meaning of the commercial code, legal entities under public law or special public assets, all disputes arising out of or in connection with a contract based on these Terms and Conditions shall be settled, if possible, by friendly negotiation and in good faith by the parties. The same applies if the Purchaser is an entrepreneur. However, either party shall be entitled to finally resolve the dispute under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with these Rules. The place of arbitration shall be the capital city of the country in which the Purchaser has its registered office. The language of the arbitration shall be the respective common national language otherwise English. An arbitration award shall be final and binding on each party. However, the judicial dunning procedure remains admissible. If the dunning procedure turns into litigation, this will take place before the ordinary court at our place of business.
11.2 With regard to these General Terms and Conditions of Business and the contractual relationship between us and the Purchaser, the law of the Federal Republic of Germany applies to the exclusion of international uniform law and the UN Convention on Contracts for the International Sale of Goods in particular.

Version: July 2023