General Terms and Conditions of Sale and Delivery (Applicable only to business customers of Zentis Germany)

General Terms and Conditions of Sale and Delivery 
for the business division of Zentis GmbH & Co. KG, Aachen

  1. 1. Scope of Application and General Provisions
    1. (1) These General Terms and Conditions of Sale and Delivery (hereinafter referred to as “Terms and Conditions”) apply to all contracts concluded between Zentis GmbH & Co. KG (hereinafter referred to as “ZENTIS”) and the Purchaser and for all other goods and services supplied. In the case of ongoing business relationships, these Terms and Conditions will also apply to future transactions which do not expressly refer to them provided that only the Terms and Conditions were incorporated into the previous contract.
    2. (2) The Purchaser agrees to be bound by these Terms and Conditions at the time it places its order or, at the latest, when it accepts the goods. Unless ZENTIS has previously consented to them in writing, it will not recognize any of the Purchaser's standard business conditions which are contrary to or vary from its own.
    3. (3) Collateral agreements as well as amendments of and supplements to the contract must be made in writing in order to be valid. The same applies to a waiver of the requirement of writing. Only the authorized signatories (Prokuristen) and directors of ZENTIS are authorized to agree orally with the Purchaser on amendments to the contract or on provisions which are inconsistent with these Terms and Conditions.
    4. (4) These Terms and Conditions only apply to persons who are entrepreneurs pursuant to section 310(1) of the German Civil Code (Bürgerliches Gesetzbuch - BGB).
  2. 2. Offers and Conclusion of Contract
    1. (1) Offers made by ZENTIS are without obligation and non-binding. ZENTIS is only bound by orders that it has confirmed in writing. The issue of an invoice by ZENTIS has the same effect as written confirmation of an order by it. ZENTIS's written order confirmation determines the content of the contract.
    2. (2) Any delivery amounts agreed by ZENTIS are approximate only. ZENTIS is entitled to deliver up to 5% more or less than the contractually agreed quantity. ZENTIS is permitted to make partial deliveries provided that it is reasonable to expect the Purchaser to accept same.
    3. (3) Samples provided to the Purchaser are non-binding. Specification values are only approximations and are subject to the usual biological and production-related variations.
  3. 3. Price
    1. (1) The price for the goods, including door-to-door delivery or FOB will be as stated in ZENTIS's price list current on the delivery date. Value-added tax in the applicable statutory amount, packaging and transport costs are additional. The aforegoing does not apply where the Parties make an express agreement to the contrary.
    2. (2) Where, by way of exception, ZENTIS has agreed on a fixed price with the Purchaser, and if a period of at least four months has elapsed between the date that the order was placed and the delivery date and if its wages, transport and/or material costs or the sales prices of its suppliers have undergone significant change or if the amount of the levies that ZENTIS is required by law to pay has changed significantly during this period, and if these changes have led at the end of the four-month time period to changes in costs and levies payable by ZENTIS, then ZENTIS will be entitled to adjust the agreed price accordingly. The calculation must consider both the increases and decreases that occur simultaneously in different costs and levies at a given time. ZENTIS will be entitled to adjust the price by disclosing the developments in its costs only where the aforegoing results in a significant change to the price. Where this occurs, the Purchaser may rescind the contract for cause.
  4. 4. Payment, Default in Payment, Set-Off and Right of Retention
    1. (1) Invoices from ZENTIS are payable net within 30 days. ZENTIS will allow a 2% discount on the invoice amount for payment within 14 days provided that the Purchaser has satisfied all other claims against it by ZENTIS which are due. The time limit for payment commences on the date of the invoice or, at the latest, upon receipt of the respective delivery. ZENTIS will not pay interest on advance payments or installment paymentst.
    2. (2) Payment is effected when the money is credited to one of ZENTIS’s accounts. ZENTIS accepts payment orders, checks and bills of exchange merely as conditional payment until same are cleared. Payment with a bill of exchange will only be accepted if this has been separately agreed in writing. The Purchaser will be responsible for any associated bank charges. If ZENTIS accepts a bill of exchange which is payable out-of-town or in another country, it will not be liable for presenting it or protesting it on time. .
    3. (3) ZENTIS’s field representatives and drivers are not authorized to accept payment of any kind.
    4. (4) If the Purchaser is late in payment, it will be obliged to pay interest at the rate of 8% above the base interest rate. ZENTIS reserves the right to assert any and all other rights, including further claims for compensation.
    5. (5) Where ZENTIS has a duty to tender performance first, and if after the conclusion of contract the Purchaser's financial circumstances deteriorate so significantly as to endanger ZENTIS's claim for payment or if ZENTIS becomes aware that the Purchaser's liquidity is not adequate or if the Purchaser has defaulted on a payment to ZENTIS which amounts to at least 15% of ZENTIS's aggregate claims against the Purchaser or if the Purchaser made false statements about its creditworthiness at the time of contracting, then ZENTIS will be entitled to delay its performance until the Purchaser's payment has been made or security for same has been provided. In the event that, in spite of a request from ZENTIS and the setting of a reasonable deadline for doing so, the Purchaser is unwilling to pay for the goods or provide security for payment concurrently with delivery of the goods by ZENTIS, ZENTIS will be entitled to rescind the contract. In such cases, all of ZENTIS's claims will become due and payable. All payment extensions, including those where a bill of exchange was accepted, will terminate.
    6. (6) The Purchaser will only have a right of set-off, if its counterclaim against ZENTIS is undisputed or nonappealable or if ZENTIS has recognized the counterclaim. The Purchaser will only be entitled to exercise a right of retention if its counterclaim arises from the same contractual relationship. ZENTIS will be entitled to the full range of set-off and retention rights stipulated by law.
  5. 5. Delivery and Delivery Dates
    1. (1) The agreed delivery dates and periods are estimates only and are completely non-binding unless there is an express agreement to the contrary in a particular case. Delivery dates and periods are conditional upon proper and timely delivery on the part of ZENTIS’s suppliers and on the Purchaser's punctual fulfillment of its contractual duty of cooperation, and in particular its payment obligation. If the aforegoing is not the case, the delivery period will be extended accordingly.
    2. (2) If ZENTIS delays delivery at the request of the Purchaser, the latter will be required to bear the costs of storing the goods to be delivered. The aforegoing is without prejudice to the Purchaser's duty to pay the purchase price on time. After setting the Purchaser a reasonable grace period for taking delivery, ZENTIS will be entitled to rescind the contract and demand damages in lieu of performance.
    3. (3) The containers used for delivery, including the equipment for emptying them, are on loan from ZENTIS. ZENTIS will collect them freight free. The Purchaser is obliged to take delivery of the goods in the containers, to empty the containers in the ordinary course of business and to return them without delay. The Purchaser is not permitted to fill the containers with other goods or use them in any other way. The Purchaser is obliged to store the containers safely. It will be liable for loss or damage to the containers unless it can show that same occurred through no fault of its own.
    4. (4) Where a force majeure event occurs, ZENTIS will be entitled to suspend delivery of the goods for the duration of the impediment and a reasonable start-up period thereafter or to rescind the whole of the contract or the unperformed part of it. Strikes, lockouts and unforeseen and unavoidable circumstances, e.g. business disruptions, will be on a par with force majeure events if they make it impossible for ZENTIS to deliver on time in spite of its making a reasonable effort to do so; ZENTIS must furnish evidence in support thereof. The same applies if the aforementioned impediments occur during a delay or at a subcontractor's premises. The Purchaser may request ZENTIS to notify it within a period of at least two weeks as to whether ZENTIS wishes to rescind the contract or deliver the goods within a reasonable grace period. If ZENTIS fails to respond, the Purchaser may rescind the unperformed part of the contract. In the event that a force majeure event, as described above, occurs, ZENTIS will notify the Purchaser without delay.
  6. 6. Passing of Risk
    1. (1) Unless otherwise agreed in writing, goods will be delivered door-to-door or FOB. In the latter case, the 2010 Incoterms FOB apply for loading at the agreed port of loading. If the Purchaser fails to accept delivery or if it intentionally or negligently breaches its other duties of cooperation, the risk of accidental loss or deterioration of the goods will pass to the Purchaser at the time of the failure to accept delivery or at the time of its other breach of duties.
  7. 7. Retention of Title and Assignment of Future Claims
    1. (1) ZENTIS will retain title to the goods delivered until such time as it has received all payments under the delivery contract. Furthermore, ZENTIS will remain the owner of the goods until all of its claims against the Purchaser have been satisfied; this also applies where the purchase price for specific deliveries has been paid. In the case of a current account, the retained title to the goods delivered (goods subject to a retention of title claim) will be regarded as security for the balance owed to ZENTIS.
    2. (2) Where the Purchaser alters or processes the goods, it will not acquire title to the goods pursuant to section 950 of the German Civil Code and it will instead be deemed to be acting on behalf of ZENTIS. ZENTIS will become a co-owner of the new product created through the alteration or processing of the goods subject to a retention of title claim in the ratio of the net invoice value of the goods subject to a retention of title claim to the net invoice value of the altered or processed goods; the latter will be subject to a retention of title claim and serve as security for ZENTIS's claims pursuant to subsection 1.
    3. (3) Where the Purchaser combines or mixes goods subject to a retention of title claim with other goods that do not belong to ZENTIS, the provisions in section 947 and section 948 of the German Civil Code will apply so that ZENTIS's co-ownership share in the new product will be deemed a product subject to a retention of title claim within the meaning of these provisions. If the goods are mixed in such a way that the Purchaser's product must be seen as the main product, the Parties hereby agree that the Purchaser will transfer a proportionate co-ownership share of the product to ZENTIS. The Purchaser will protect ZENTIS's sole ownership or co-ownership thus created.
    4. (4) Upon request by ZENTIS, the Purchaser must notify it as to the quantity of goods in its possession that are subject to a retention of title claim and their location.
    5. (5) The Purchaser may resell the goods subject to the retention of title claim in the ordinary course of business provided that it indicates that they are subject to a retention of title claim. The Purchaser is not permitted to otherwise dispose of the goods subject to the retention of title claim, in particular it is not permitted to pledge them or create security interests over them. The Purchaser herewith assigns to ZENTIS all of its claims in the amount of ZENTIS's final invoice (including value-added tax) against its purchasers or third parties which arise from the resale. This will apply regardless of whether or not the goods are processed before they are resold. The Purchaser remains authorized to enforce the above-mentioned claims even after they have been assigned. ZENTIS's authority to enforce the claims itself will remain unaffected hereby. ZENTIS undertakes, however, not to enforce the claims provided that the Purchaser meets its payment obligations from the sale proceeds that it receives, does not default in payment and, in particular, that no composition or insolvency proceedings are instituted against it and it does not cease payment. If, however, the aforegoing occurs, ZENTIS may request the Purchaser to inform it regarding the details of the assigned claims and the identity of its debtors, to provide it with all details necessary for enforcing the claims, to hand over all related documents and to inform the debtors (third parties) of the assignment.
    6. (6) In the event that the Purchaser breaches the contract, and in particular if it defaults in payment, ZENTIS will be entitled to recover the goods subject to its retention of title claim. If ZENTIS reclaims the goods, this will be tantamount to its rescission of the contract. After recovery of the goods delivered, ZENTIS will be entitled to sell them; it will credit the proceeds of the sale against any amounts owed to it by the Purchaser after it has deducted its reasonable expenses for the sale.
    7. (7) The Purchaser must notify ZENTIS without delay if a third party attaches or seizes the goods subject to ZENTIS's retention of title claim. Any resulting costs of intervention will in any event be borne by the Purchaser except where a third party is responsible for them.
    8. (8) If the value of the securities assigned to ZENTIS exceeds its aggregate claims by more than 10%, the Purchaser may request ZENTIS to release some of the securities. In such cases, ZENTIS may choose which securities it wishes to release.
    9. (9) Containers, barrels and other vessels lent by ZENTIS will remain its property.
  8. 8. Load securing, duty to examine the goods and notify non-conformity
    1. (1) In the case of loading and transport by the buyer the latter is responsible for the safety of the load in accordance with the road traffic regulations and other regulations concerning load safety in the relevant countries (in Germany. Article 22 of the StVO) and is required to carry out the necessary measures to ensure this. When loading full stainless containers the buyer must use a suitable load securing system. The same applies to empty containers being returned. The obligations of the buyer apply accordingly if he commissions a third party to carry out the relevant work. The current edition of the information concerning the requirements for the securing of stainless steel container loads has been handed over to the buyer.
    2. (2) The Purchaser is obliged to immediately inspect the goods upon receipt to the extent that this is feasible in the ordinary course of business. Any loss or damage to the goods must be reported to the respective freight driver and confirmed by him. The confirmation must be sent to ZENTIS without delay. The Purchaser has a statutory duty to examine the goods and to give notice of any defects in them pursuant to section 377 of the German Commercial Code (Handelsgesetzbuch - HGB).
  9. 9. Warranties
    1. (1) ZENTIS warrants that, based on the current state-of-the-art, its goods are free from defects. The Purchaser’s duties pursuant to section 8 are not affected hereby. ZENTIS offers no warranty for defects which result from the incorrect handling of the goods by the Purchaser. Any variations which are within the range referred to in sections 2(2) and 2(3) will constitute acceptable delivery within the quantity/quality tolerance and will not be considered defects. Any agreement that the goods will have certain characteristics and the assumption of any guarantee with regard to their characteristics or shelf life must be expressly agreed.
    2. (2) Where the Purchaser's notice of defects is justified, ZENTIS will only be obliged to cure its defective performance by electing whether to repair the goods or to replace them with goods free from defects. If ZENTIS does not comply with this obligation within a reasonable deadline or if it fails to repair the goods despite repeated attempts to do so, the Purchaser will be entitled to reduce the purchase price or to rescind the contract. The provisions of section 10 govern any further claims that the Purchaser may have against ZENTIS, in particular reimbursement of expenses or damages for defects or consequential damage caused by defects.
    3. (3) The statutory limitation period for warranty claims will expire 12 months from the date of the passing of risk except as otherwise provided for in the mandatory provisions of sections 478 and 479 of the German Civil Code.
    4. (4) ZENTIS will have no obligation to cure its defective performance, nor will it have any warranty obligations while the Purchaser is in breach of any of its material contractual obligations. The aforegoing does not apply where the Purchaser is entitled to refuse performance or has a right of retention. The Purchaser will only be entitled to withhold payment or otherwise refuse performance because of defects in the goods to the extent that the amount of payment withheld is reasonably proportionate to the extent of the defects.
    5. (5) ZENTIS assumes no warranty for faulty or incorrect EAN codes used by its suppliers.
    6. (6) In the event that ZENTIS does not comply with a guarantee, its liability will be limited to compensation for the foreseeable and direct damage the occurrence of which the guarantee was specifically intended to prevent unless compensation for further damage is expressly covered by the guarantee.
    7. (7) ZENTIS's liability under any guarantees of characteristics or shelf life and its liability for fraudulent concealment of a defect, intentional wrongdoing, gross negligence or injury to life, body or health remains unaffected by the aforegoing provisions.
  10. 10. Liability
    1. (1) Where ZENTIS is contractually or legally obliged to pay damages or reimburse expenses, it will only be liable to the extent of any intentional wrongdoing, gross negligence or injury to life, body or health by it, its executive employees or agents. This will not affect ZENTIS's strict liability pursuant to the Product Liability Act (Produkthaftungsgesetz). Nor will this affect ZENTIS's liability for an intentional or negligent breach of a material contractual obligation (= a duty whose fulfillment is of the very essence for the proper implementation of the contract and upon whose fulfillment the Purchaser may regularly rely). ZENTIS's liability for damages for breach of a material contractual obligation will, however, be limited to the usual foreseeable damage except in the cases mentioned in sentences 1 and 2. The aforementioned provision does not reverse the balance of proof in a way which would be detrimental to the Purchaser’s interests.
    2. (2) To the extent to which ZENTIS's liability for damages is excluded or limited, this also applies in respect of the personal liability for damages of its employees, workers, staff, representatives and agents.
  11. 11. Place of Performance and Place of Jurisdiction
    1. (1) The place of performance for deliveries is the respective place of shipment or agreed port of loading. The place of performance for payments is Aachen.
    2. (2) The courts of Aachen will have jurisdiction if the Purchaser is a merchant (Kaufmann) or a legal person or a special fund under public law. ZENTIS will nonetheless be entitled to sue the Purchaser at the place where it is domiciled.
  12. 12. Applicable Law
    1. (1) The law of the Federal Republic of Germany applies to the exclusion of the provisions of the U.N. Convention on Contracts for the International Sale of Goods (CISG).
  13. 13. Data Processing
    1. (1) ZENTIS hereby gives notice that it stores and processes customer data in its data processing system (section 28 of the Federal Data Protection Act (Bundesdatenschutzgesetz - BDSG).
  14. 14. Final Provisions
    1. (1) The Purchaser may only assign claims arising from or in connection with this contract with ZENTIS's prior written consent.
    2. (2) The German version of this document is authoritative. If the Parties use another language, the German wording will prevail.
    3. (3) In the event that any individual provision of these Terms and Conditions or the contract is or becomes invalid, this will not affect the validity of the remaining provisions. The Parties agree herewith, to the extent that is reasonable, to replace the invalid provision with the provision which approximates as closely as possible the economic effect of the invalid provision and which they would have agreed upon had they been aware of the invalidity of the original provision. The same applies in the event of an omission.
    4. (4) Order confirmations, invoices and account statements etc. that are machine-generated by ZENTIS will be binding even without a signature.

April 2017