TERMS AND CONDITIONS OF PURCHASE FOR MACHINERY AND EQUIPMENT FROM KÖTTGEN SERVICE GMBH

§1 General provisions

1.1 These Terms and Conditions of Purchase for Machinery and Equipment ("MuA-EKB") apply exclusively to all business relationships with our business partners and suppliers (collectively referred to as "contractors") regarding the procurement of machinery and mechanical equipment, including other services required in this context (e.g. assembly, installation work and commissioning), regardless of whether the contractor manufactures these itself or purchases them from suppliers (collectively referred to as "machinery and equipment").

1.2 Any deviating, conflicting or supplementary contractual terms and conditions of the contractor shall only apply if we have expressly agreed to them in writing. Any counter-confirmations by the contractor with reference to contractual terms and conditions are hereby expressly rejected. The MuA-EKB shall also apply if we accept the delivery without reservation in the knowledge of deviating, conflicting or supplementary contractual terms and conditions of the contractor.

1.3 These MuA-EKB also apply as a framework agreement to all future contracts with the contractor for the delivery of machinery and equipment, without us having to refer to them again in each individual case.

1.4 Individual agreements made in writing with the contractor in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these MuA-EKB.

§2 Contract components

The components of the contract are – in the event of contradictions that cannot be resolved by interpretation – in the order specified:

Our order/contract document with any service specifications, including preliminary remarks
This MuA-EKB
The general and specific (technical) regulations, guidelines and standards applicable to the agreed services at the time of conclusion of the contract, such as TÜV, VDI, IEC/EN (International Electrical Commission/European Standard), VDE, DIN, UVV, TRD, TA-Luft and all other applicable directives and regulations, in particular the Machinery Directive 2006/42/EC, the EMC Directive 2014/30/EU and the Low Voltage Directive 2014/35/EU.

§3 Offer/offer documents/conclusion of contract

3.1 Offers made by the contractor are free of charge for us.

3.2 The contractor must confirm each order within a period of 2 weeks, stating the binding price and the binding delivery time. Any contractual terms and conditions of the contractor contained in the confirmation or references to such terms and conditions are expressly rejected (cf. clause 1.2).

3.3 We are entitled to revoke the order until it is accepted by the contractor. The contractor must notify us of any obvious errors (e.g. typing and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before the contract is concluded.

3.4 We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents; they may only be used for the processing of our order and may only be made available to third parties with our written consent, even after termination of the contract. The confidentiality obligation shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known. After completion of the order, they must be returned to us without request.

§4 Scope of services/execution/subcontractors

4.1 The agreed remuneration covers all services that the
contractor must perform in order to fulfil its obligation to perform.

4.2 Unless otherwise agreed, the scope of services shall include, in particular:
the following:

The delivery and installation of all parts of the machines and systems at the agreed installation site, ready for operation, including the coordination and performance of the necessary tests and test certificates, commissioning and trial operation up to acceptance (in each case free domicile, duty paid and taxed);
Compliance with the technical and other regulations and findings relevant to the services
including regulations on occupational safety and environmental protection
The CE marking, the declaration of conformity in the case of a ready-to-use machine or system, or the declaration of incorporation in the case of a machine or system that is not ready for use;
All design documents, documentation and operating instructions in accordance with technical specifications or separate agreements that are part of the safe and ready-to-use machine or system;
Theoretical and practical instruction/training of our operating and maintenance personnel with regard to the function and operation of all system components;
The contractor is obliged to ensure the availability of the components and spare and wear parts required for the operation of the machine or system for a period of ten years. If this is unreasonable for the contractor, they may fulfil this obligation by naming a suitable supplier who will ensure the availability of the components.

4.3 Functional tests and all tests required by the authorities and by law shall be carried out in consultation with us and at the contractor's expense.

4.4 Within the scope of the order execution, the contractor shall take all measures necessary to achieve the contractually stipulated success, even if these were not expressly mentioned in the order. These include in particular:

Procurement of all necessary equipment, auxiliary materials and facilities free of charge for use or at the construction site;
Cleaning of the construction site and restoration of the original installation plan condition;
Disposal of waste generated during the execution of the order;
Adequate lighting at the work site;
Securing the work areas against accidents, damage, theft and similar.

4.5 When carrying out work that is to be performed in our factory area during production times, the contractor must take the greatest possible consideration of our work processes. Disruptions and obstructions must be kept to a minimum.

4.6 The use of subcontractors requires our prior consent.

§5 Deadlines/Delivery Delays/Contractual Penalties

5.1 The agreed delivery dates are contractual deadlines.

5.2 The contractor may not invoke delivery difficulties due to a strike, a lockout, or due to the effects of the Covid-19 pandemic or the war in Ukraine, regardless of whether they occur at the contractor's premises or at those of one of its suppliers. The contractor may only invoke the absence of necessary information and/or documents to be supplied by us if it has not received the information and/or documents despite setting a reasonable deadline. § 313 BGB and § 280 (1) sentence 2 BGB remain unaffected.

5.3 Without prejudice to further claims, we shall be entitled in such cases and in cases of delay in delivery or performance due to force majeure to set a reasonable grace period at our discretion. The contractor must confirm the new delivery date in writing.

5.4 The date of readiness for acceptance shall be decisive for compliance with a delivery date.

5.5 In the event of delayed delivery or performance and in the event of default, we shall be entitled to the statutory claims. No limitation or reduction of the contractor's liability has been agreed. Acceptance of the delayed delivery does not constitute a waiver of claims for compensation. The provisions in clause 5.7 remain unaffected.

5.6 As soon as the contractor anticipates that it will not be able to meet agreed delivery dates, it must notify us immediately, stating the reasons and the expected duration of the delay.

5.7 In the event of a delay in meeting a delivery date, the contractor shall be obliged to pay a contractual penalty of 0.25% of the justified net order amount per working day, but not more than 5% of the justified net order amount in total; further legal claims (in particular withdrawal and further compensation) remain reserved. The contractual penalty shall be offset against damages caused by the delay.

5.8 In addition, the provisions of Section 2 of the "Delivery and Logistics Conditions of Köttgen Service GmbH" shall apply.

§6 Assembly/commissioning/trial operation/acceptance

6.1 The completion of the machines and systems includes assembly, commissioning and trial operation. This is followed by a formal acceptance.

6.2 We must be notified in writing when the assembly work has been completed. After notification of the end of assembly, we may request a joint inspection of the machines and systems. A report shall be drawn up on the inspection, noting the completion of assembly. Any defects and remaining work shall be included in the report. The report shall be signed by both parties. However, neither the inspection nor the signing of the report shall have any acceptance or exclusionary effect.

6.3 Commissioning shall take place after the end of the installation. This includes all checks, adjustments, test runs and tests of machine and plant parts and systems that are necessary to achieve functional readiness after completion of assembly. We must be notified in writing immediately when the system is ready for commissioning. The date for commissioning shall be determined by mutual agreement. However, it must take place no later than 5 working days after the end of assembly in accordance with clause 6.2.

6.4 After successful commissioning, a trial run must be carried out over an appropriate period of time. Unless otherwise agreed by the parties, the trial run shall last at least 10 working days. The contractor shall notify us in writing without delay when it is ready for trial operation. If a malfunction occurs during trial operation that interrupts or significantly restricts trial operation, trial operation shall be extended by the duration of this malfunction, unless the contractor is not responsible for this malfunction. The trial operation shall be terminated and repeated if it has been interrupted or significantly restricted by more than 3 malfunctions or if the total interruption time or significant restrictions due to malfunctions exceed 3 working days, unless the contractor is not responsible for these malfunctions. If trial operation is terminated, the agreed trial operation period shall recommence once the cause of the fault has been rectified. The contractor shall draw up a report on the course and completion of trial operation, which shall be signed by both contracting parties. Neither the completion of trial operation itself nor the signing of the report shall have any acceptance or exclusion effects.

6.5 Unless otherwise agreed, commissioning and trial operation shall be carried out under the supervision and responsibility of the contractor and at the contractor's expense. If the contractor makes any changes to the machine or system or its mode of operation during this time, these must be documented by the contractor and communicated to us immediately.

6.6 After completion in accordance with clause 6.1 (assembly, commissioning and successful trial operation), we shall accept the overall performance. Acceptance shall be formal only. Implied acceptance is excluded. However, fictitious acceptance remains unaffected. A report on the acceptance shall be drawn up and signed by both parties.

§7 Liability for defects/Agreed quality/Defect investigation

7.1 The contractor must comply with the recognised rules of technology, safety regulations and the relevant technical standards and data for the machines and systems.

7.2 The contractor guarantees that the machines and systems delivered by him comply with the legal provisions of the Federal Republic of Germany and those of the respective countries of destination of the end products specified in the order in terms of their quality, composition, packaging, declaration and product specification.

7.3 The delivered machines and systems must be fully suitable for 3-shift operation. In addition to the quality characteristics specified in clauses 7.2 and 7.3, the product descriptions that – in particular by designation or reference in our order – are the subject of the respective contract or have been included in the contract in the same way as these MuA-EKB. It makes no difference whether the product description originates from us, the contractor or third parties.

7.4 The limitation period for defects is 36 months from the date of acceptance. Longer statutory periods remain unaffected.

§8 Liability/Damages

8.1 We shall be liable to the contractor for damages or reimbursement of futile expenses in cases of intent and gross negligence in accordance with the statutory provisions. Otherwise, we shall only be liable for slight negligence in the event of a breach of a contractual obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractor may regularly rely (so-called cardinal obligation), limited to compensation for foreseeable and typical damage.

8.2 Our liability for damages resulting from injury to life, limb or health and under the Product Liability Act remains unaffected by the above limitations and exclusions of liability in clause 14.2; in this respect, the statutory provisions apply.

8.3 No limitation or reduction of the contractor's liability has been agreed.

§9 Changes to services/termination

9.1 Sections 650b and 650c of the German Civil Code (BGB) shall apply accordingly to changes in performance, but with the following proviso: The contractor must submit a verifiable offer in text form regarding the additional or reduced costs within one week of receiving the request for change. If this is not possible, the contractor must notify us immediately. A reasonable period shall then apply.

9.2 We are entitled to immediately order a change necessary to achieve the agreed work result (Section 650b (1) No. 2 BGB) if we are threatened with serious disadvantages without immediate execution or if the contractor definitively and seriously refuses a change.

9.3 Sections 648 et seq. BGB apply to terminations.

§10 Declaration of origin properties

10.1 The contractor is obliged to enable the customs administration to verify the proofs of origin and to provide both the necessary information and any necessary confirmations and evidence.

10.2 The contractor further undertakes to compensate for any damage resulting from the declared origin not being recognised by the competent authority due to missing certificates or a lack of verification options, unless the contractor is not responsible for this.

§11 Securities

11.2 Any advance payments, which must be expressly agreed, shall only become due two weeks after the repayment of the advance payment has been secured by the provision of a guarantee in the same amount as the gross amount in accordance with clause 11.4.

11.2 To secure our claims for performance of the contract against the contractor, we shall be entitled to demand a contract performance guarantee in accordance with clause 11.4 in the amount of 10% of the net order value. Until the contract performance guarantee has been provided, we shall be entitled to realise the security requirement by means of retention payments until the security has been achieved. The contract performance guarantee serves to secure our claims for performance of the contractual services and for damages (including interest in each case), including the contractual penalty until acceptance, as well as for the repayment of payments. Claims secured by the security for claims for defects in accordance with Clause 11.3 – or any advance payment guarantee in accordance with Clause 11.1 – are not covered by the contract performance security.

11.3 To secure claims for defects after acceptance, including all payment and damage compensation claims related to defects after acceptance, we are entitled to retain 5% of the justified net final invoice amount for services rendered after acceptance of the service. The retention may be redeemed by the contractor in return for the provision of a warranty bond of the same amount in accordance with clause 11.4. The security shall be provided for 3 years after acceptance. Claims prior to acceptance are expressly not covered by the security for claims for defects.

11.4 The following provisions apply to the securities pursuant to Clauses 11.1, 11.2 and 11.3: There is no obligation to pay the security into a blocked account. The contractor's rights to provide the respective securities by depositing money remain unaffected. A guarantee shall be directly enforceable and irrevocable, but shall not be provided on first demand. It must be issued unconditionally, for an indefinite period and waiving the defence of preliminary proceedings (Section 771 of the German Civil Code (BGB)). The costs of the guarantee shall be borne by the contractor. The guarantee shall be subject to the law of the Federal Republic of Germany and must designate Cologne as the exclusive place of jurisdiction. Only a bank based in Germany, a public-law credit institution based in Germany or a credit insurer based in Germany can be a suitable guarantor. The costs of the security shall be borne by the contractor. The choice of whether the respective securities are provided by guarantee, retention or deposit is at the discretion of the contractor.

§12 Contractor's insurance

12.1 For the duration of the contract until the expiry of its warranty period, the contractor must take out and maintain business liability insurance with an insurance company that is subject to review by the Federal Insurance Supervisory Authority. Upon request, this must be proven by presenting a corresponding confirmation. The insurance cover must include all damages, including indirect and third-party damages as well as preliminary and consequential damages per individual claim up to an amount of EUR 5 million for personal injury and EUR 5 million for other damages.

12.2 If the contractor defaults on its obligations under clause 12.1, we shall be entitled, after setting a grace period without success, take out appropriate insurance ourselves at the contractor's expense, withhold payments in the amount of the missing insurance cover or terminate the contract for good cause. The right to claim damages remains unaffected in each case.

§13Substances and materials provided

Materials and supplies (e.g. software, finished and semi-finished products) as well as
tools, templates, samples and other items that we provide for the purpose of
manufacturing and/or processing remain our property regardless of their type and
scope of the contractor's services, and shall be stored for us at the contractor's expense and
risk (separately, as long as they are not processed
) and insured to an appropriate extent against destruction and loss.
The provisions in section 3.4 shall apply accordingly.

§14 Invoicing/terms of payment

14.1 Invoices shall be submitted in duplicate or in electronic form, stating the order number and purchase order number. The contractor shall be responsible for any delays arising from non-compliance with these obligations, without us being liable for this.

14.2 The contractor's payment claims shall become due 30 days after receipt of the invoice in accordance with the contract.

14.3 We are entitled to a 3% discount if we pay invoices within 14 calendar days of receipt of the invoice in accordance with the contract. For clarification: It is not necessary for the respective payment to be made in full or for all payments to be made within the discount period; the discount shall be granted on the part of an invoice paid on time within the discount period.

14.4 Payment and discount periods shall commence (except in the case of advance payments to be agreed separately in writing) upon receipt of the invoice in accordance with the contract, but not before acceptance of the machinery and equipment.

14.5 Compliance with the discount period in accordance with clause 14.3 above depends on the completion of the payment transaction (time of payment instruction) on our part and not on the receipt of payment by the contractor.

14.6 We shall not owe any interest on arrears. The statutory provisions shall apply in the event of default in payment.

§15 Offsetting/Assignment/Right of Retention

15.1 We are entitled to offset any counterclaims against claims of the contractor.

15.2 Offsetting by the contractor with counterclaims is excluded, unless the claims are undisputed or have been legally established or are reciprocal (§ 320 BGB).

15.3 The contractor is only entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship, is undisputed or has been legally established.

15.4 The transfer of a claim against us to third parties is excluded unless we have expressly agreed to this in writing or a case of § 354a (1) sentence 1 HGB (German Commercial Code) applies.

§16 Prices/price increases

16.1 The prices stated in the order are binding. Unless otherwise agreed in individual cases, the prices include all services and ancillary services provided by the contractor (e.g. delivery, assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including transport and liability insurance) in accordance with clause 4.1. A sliding price adjustment clause for labour, material, equipment and material costs is not agreed.

16.2 Unless otherwise stated, the statutory value added tax is included in the price.

16.3 Price increases after conclusion of the contract are excluded. Section 313 of the German Civil Code (BGB) remains unaffected.

§17 Property rights

17.1 The contractor warrants that the machines and systems are free from third-party rights, in particular that there are no third-party property rights or domestic or foreign industrial property rights that could be infringed by delivery to us or by use, resale or further processing of the machines and systems by us or third parties.

17.2 In the event that third parties assert such rights to the machines and systems, the contractor shall be obliged – without prejudice to further rights on our part – to clarify the validity of the asserted claims in consultation with us without delay.

17.3 If claims are asserted against us by a third party, the contractor is obliged to indemnify us against these claims upon first written request; we can only assert claims of the third party arising from agreements or settlements against the contractor if the contractor has agreed to this or if statutory claims of the third party are covered.

17.4 The contractor's obligation to indemnify also applies to all expenses that we necessarily incur as a result of or in connection with the claim by a third party.

§18 Place of jurisdiction, place of performance, choice of law, severability clause

18.1 The exclusive place of jurisdiction for all disputes arising from or in connection with our contractual relationships with the contractor is Cologne, Germany.

18.2 Unless otherwise specified in the order, our place of business in Kerpen is the place of performance.

18.3 These terms and conditions, as well as all legal relationships between the contractor and us, are governed by the law of the Federal Republic of Germany, excluding international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).

18.4 If one or more provisions of these Terms and Conditions of Purchase are or become invalid, this shall not affect the validity of the remaining provisions.