General Terms and Conditions of Purchase (GCTP) of terra infrastructure GmbH, Essen

(1) The Client's Terms and Conditions of Purchase shall apply exclusively to all – including future – orders for goods, services and work performance as well as their processing if the Contractor is an entrepreneur (§ 14 of the German Civil Code – BGB), a legal entity under public law or a special fund under public law. The Client does not recognize any deviating terms and conditions of the Contractor unless the Client expressly agrees to their validity in writing.

(2) The Terms and Conditions of Purchase shall also apply exclusively if the Client accepts or pays for the supplies/services in the knowledge that the Contractor's terms and conditions conflict with or deviate from them.

(3) In case of doubt, the INCOTERMS© published by the International Chamber of Commerce in Paris (ICC), as amended from time to time, shall apply for the interpretation of trade terms.

(I) Orders

(1) Orders are only binding if they are placed by the Client in writing. Verbal agreements – including subsequent amendments and supplements to these Terms and Conditions of Purchase – require written confirmation by the Client in order to be valid. The Contractor shall accept the order in the same form within a period of two weeks. Upon the expiry of this period, we shall be entitled to cancel the order. Where there are obvious errors (e.g. spelling and calculation errors) in the order or if the order, including the order documents, is incomplete the Contractor must inform the Client accordingly for the purposes of correction or completion before acceptance.

(2) For the period of their validity, cost estimates shall constitute a binding basis for any orders arising therefrom. They shall be provided free of charge, unless expressly agreed otherwise.

(3) Documents used by the Contractor in business transactions with the Client must at least indicate: Order number, commission number, plant, place of receipt, complete article text/object description, quantities and quantity units as well as the VAT ID no. (for import from the EU).

(II) Prices

(1) The prices indicated in the order are fixed prices and are binding. They are exclusive of statutory value added tax and include everything that the Contractor has to do in order to fulfil its delivery/service obligation. This means ancillary services (e.g. assembly) and ancillary costs (e.g. transport and packaging costs), insofar as these GTCP or the respective agreement do not expressly provide otherwise. Transport insurance costs shall be borne by the Contractor.

(III) Scope of supply/service; ownership; rights of use

(1) As part of the scope of supply/service:

  • the Contractor transfers to the Client the ownership of all technical documents (including for subcontractors) as well as other documents required for new production, maintenance and operation. These technical documents must be drafted in German and in accordance with the International System of Units (SI);
  • for all protectable supplies/services, the Contractor grants the Client the non-exclusive and irrevocable right of use, unlimited in terms of space, time and content, for all known and unknown types of use [in particular, the supplies/services may be reproduced, processed, distributed in altered and unaltered form, and publicly communicated by wire and wireless means, without restriction by the Client and the latter shall be entitled to transfer all rights of use granted under the contract to third parties against payment or free of charge];
  • the Contractor grants the Client exclusive rights of use and exploitation to the extent described above in respect of such supplies/services which it creates individually for the Client;
  • - the Contractor guarantees that it shall strictly observe the provisions of the Employee Inventions Act and shall claim the respective inventions in due time. This shall also apply where the Contractor does not employ its own employees/workers, but has commissioned third parties within the framework of the permissible employment of temporary workers.
  • the Client has the unrestricted authority to carry out repairs to the accepted delivery/service and changes thereto itself or to have them carried out by third parties, and to produce spare parts itself or to have them produced by third parties.
(2) If the scope of supply/service is to differ from that agreed, the Contractor shall be entitled to additional claims or schedule changes only if a corresponding supplementary agreement is concluded in writing with the Client prior to performance of the order.

(3) The volumes ordered are binding. In the event of excess supplies/services, the Client shall be entitled to refuse these at the expense and cost of the Contractor.

(IV) Quality

    The Contractor shall set up and maintain a documented, state-of-the-art quality assurance system which is suitable in terms of type and scope. It shall keep records, in particular of its quality inspections, and make them available to the Client upon request. The Contractor hereby consents to the performance, by the Client or the Client's agent, of quality audits to assess the effectiveness of the Contractor's quality assurance system.

    (V) Delivery and performance deadlines/delivery and performance dates

    (1) Agreed deadlines shall be binding. If agreed deadlines are not met, the statutory provisions shall apply. In the event of delivery/service provision before the agreed dates, the Client shall be entitled to refuse the delivery/service until the due date.

    (2) If the Contractor becomes aware that an agreed deadline cannot be met, it shall immediately inform the Client in writing, stating the reasons for and the expected duration of the delay.

    (3) The unreserved acceptance of the delayed delivery/service shall not constitute a waiver of any compensation to which the Client is entitled; this shall apply until full payment of the remuneration owed by the Client for the delivery/service concerned.

    (VI) Delivery/performance and storage, transfer of risk

    (1) Insofar as the Contractor and the Client agree on the applicability for the contract of one of the "Incoterms" international trade clauses drawn up by the International Chamber of Commerce (ICC), the currently valid version thereof shall apply. They shall apply only insofar as they do not conflict with provisions of these GTCP and other concluded agreements. Unless otherwise agreed in writing, the delivery/service shall be "delivered duty paid" (Incoterms: DDP) to the place of delivery/performance or use specified in the order. The Contractor shall bear the risk of accidental loss and accidental deterioration.

    (2) The deliveries/services are to be effected at the specified shipping addresses. Delivery/performance at a place of receipt other than the place of receipt specified by the Client shall not result in the transfer of risk to the Client even if said place of receipt accepts the delivery/service. The Contractor shall bear the Client's additional costs resulting from delivery/performance at a place of receipt other than the agreed place of receipt.

    (3) Partial supplies/services are not permitted unless the Client has expressly agreed to them. Partial supplies/services shall be marked as such; delivery/service notes shall be submitted in triplicate.

    (4) If weighing is required, the weight determined on the Client's calibrated scales shall apply.

      (5) Insofar as the Contractor is entitled to the return of the packaging necessary for the delivery/service, the delivery/service documents shall be clearly marked accordingly. In the absence of such marking, the Client shall dispose of the packaging at the Contractor's cost; in this case, the Contractor's claim to the return of the packaging shall lapse.

      (6) The storage of items required for the provision of the delivery/service on the Client's premises may only take place in allocated storage areas. The Contractor shall bear in full the responsibility and risk for these items until the transfer of risk for the entire order.

      (7) During transportation, the statutory provisions, in particular the provisions of the law on the transportation of hazardous goods and the applicable hazardous goods directives including the respective annexes and appendices must be complied with.

      (8) The declaration of the goods in the consignment notes for shipment by rail must comply with the valid provisions of the railways. Costs and damages incurred due to incorrect declaration or failure to provide a declaration shall be at the expense of the Contractor.

      (9) The delivery/service provider must have the receipt of consignments confirmed in writing by the designated place of receipt.

      (VII) Execution, subcontractors, assignment

        Insofar as supplies/services under a contract for work and services are concerned, the following shall apply:

        (1) The Contractor may not transfer the execution of the respective contract in whole or in part to third parties.

        (2) The Contractor shall provide the names of its subcontractors to the Client at the Client's request.

        (3) The Contractor may not assign its contractual claims against the Client to third parties or have them collected by third parties. This does not apply to legally established or undisputed claims.

        (VIII) Termination

        (1) The Client has the right to terminate the contract in whole or in part without giving reasons. In such a case, it shall pay for all supplies/services rendered up to that point and make appropriate payment for material procured and work delivered/performed; in this case § 649 sentence 2 HS 2 BGB shall apply. Further claims of the Contractor are excluded.

        (2) The Client shall have the right to terminate the contract without notice for good cause, in particular if a significant deterioration of the Contractor's financial situation occurs or threatens to occur and thereby endangers the fulfilment of liabilities towards the Client. In this case, the Client shall have the right to take over materials and/or semi-finished products, including any special equipment, on reasonable terms.

        (IX) Invoicing, payment, set-off

        (1) Payment shall be due – in the absence of any other agreement or more favorable conditions of the Contractor – upon receipt of an invoice in accordance with § 14 of the German VAT Act (UStG) within 14 days less 3% discount or within 30 days in the full net amount. The invoice shall be paid no later than 30 days after delivery/performance and receipt of the invoice. A delivery/service performed and accepted before the agreed date shall not affect the payment period relating to said date.

        (2) Payment and discount periods shall begin on receipt of the invoice, but not before receipt of the goods or, in the case of services, not before their acceptance and, if documentation, test certificates (e.g. factory certification) or similar documents are required under the scope of services, not before their contractual handover to the Client.

        (3) The Client shall pay by cheque or bank transfer. Payment shall be deemed to be on time if the cheque is sent by post on the due date or the bank transfer is initiated at the bank on the due date.

        (4) Interest after due date shall be excluded. The Client shall be entitled in all cases to demonstrate that the damages caused by default are lower than those demanded by the Contractor.

        (5) The Contractor may only set off undisputed or legally established claims; it shall be entitled to rights of retention only insofar as they are based on the same legal relationship.

        (X) Claims arising from liability for defects

        (1) The Contractor guarantees on a fault basis that its delivery/service has the agreed quality, is fit for the intended purpose and complies with the accepted rules of technology and the agreed properties and standards. If the Client incurs costs as a result of defective delivery/performance, e.g. transport, travel, labor, material costs or contractual penalties, the Contractor shall bear said costs.

        (2) The Contractor shall deliver to the Client only goods that are free of all signs of ionizing radiation. All costs and damages arising from a breach of this obligation shall be borne by the Contractor.

        (3) The limitation period for defect liability claims shall commence upon the complete supply/performance of the scope of supply/performance or, if acceptance has been agreed, upon acceptance.

        (4) Claims for defects shall become statute-barred after 36 months; longer statutory limitation periods shall remain unaffected in this regard. The limitation period shall start anew for newly supplied/performed parts, but for repaired parts only insofar as the same defect or the consequences of inadequate remediation are concerned, remediation would involve a wider scope, a significant amount of time or higher costs, and the Contractor has not remedied the defect expressly only out of goodwill, to avoid disputes or in the interests of continuing the supply relationship. The Client – or in the case of drop shipments the Client's customer – shall check deliveries upon receipt for quality and completeness to the extent that can be reasonably expected and within the scope of the Client's technical possibilities and report any defects detected immediately. At all events the notification is deemed to be in good time insofar as it is received by the Contractor by letter, fax, e-mail, telephone or otherwise within a period of five working days, unless a longer period is reasonable in the individual case, calculated from receipt of the goods or, in the case of hidden defects, from discovery. For defects notified within the limitation period, the period shall end at the earliest six months after the notification of the defect. The Contractor waives the objection of delayed notification of defects (§§ 377, 381 (2) German Commercial Code (HGB)) for all other than obvious defects.

        (5) All defects notified within the limitation period shall be remedied by the Contractor without undue delay or a new delivery/service shall be provided at the Client's discretion in such a way that the Client does not incur any costs. The costs of the remedying of defects or the replacement supply/performance including all ancillary costs (e.g. freight) shall be borne by the Contractor in accordance with the statutory provisions. If the Contractor does not fulfil its obligation to remedy the defect within a reasonable period of time set by the Client, the Client may remedy the defect itself and demand compensation from the Contractor for the associated costs or a corresponding advance payment. The statutory rights to withdrawal, purchase price reduction or compensation shall remain unaffected. A remedy by the Contractor shall be deemed to have failed after the first unsuccessful attempt.

        (6) The Client may claim compensation from the Contractor for expenses incurred in connection with a defect which the Client must bear in relation to its customers if the defect was already present when the risk passed to the Client.

        (7) The Client shall be entitled without restriction to the statutory claims for costs and rights of recourse within a supply chain (supplier recourse) in addition to claims for defects. In particular, the Client is entitled to demand the type of subsequent performance that the Client owes the customer in the individual case. In the case of goods with digital elements or content, this also includes the provision of the necessary updates. The right of choice under these GTCP and the statutory provisions shall not be restricted thereby. Insofar as the Client acknowledges or fulfils a claim for defects asserted by the customer or a claim for reimbursement of expenses, the Contractor shall be requested to submit a written statement setting out the facts of the case. If this statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually guaranteed by the Client shall be deemed to be owed to the customer. The Contractor then has the burden of proof to the contrary. The supplier recourse claims shall also apply if the Client or a buyer or a third party combines the goods with another product or processes them in any other way.

        (XI) Spare parts

        (1) The Contractor undertakes to provide spare parts for the delivered products for a period of at least 5 years after delivery. Where the Contractor intends to discontinue the production of corresponding spare parts upon or after the expiry of the period specified under para. 1, it shall notify the Client accordingly at least 6 months before discontinuing production.

        (XII) Assurances/Releases

        (1) The Contractor assures the Client that it shall comply with the provisions of the General Minimum Wage Act (MiLoG) and shall hold the Client harmless from third-party claims, in particular those pursuant to Section 13 MiLoG.

        (2) Should existing claims for damages be asserted against the Client by third parties on the basis of the Contractor's delivery/performance, the Contractor shall indemnify the Client in full against such claims upon first request and shall bear the Client's reasonable legal costs.

        (3) The Contractor further warrants that goods produced, stored, transported, delivered or taken over on behalf of the Client shall be produced, stored, reworked or processed and loaded at secure operating sites and at secure handling locations and shall be protected against unauthorized access during production, storage, reworking and processing, loading and transport. The Contractor warrants that the personnel deployed for the production, storage, reworking and processing, loading, transport and acceptance of such goods are reliable and that it has checked them against the currently valid EU sanctions lists. The Contractor further warrants that all business partners acting on its behalf have been informed that they must also take measures to secure the aforementioned supply chain. The Contractor agrees that its data shall be checked against the currently valid EU sanctions lists.

        (XIII) Place of performance, place of jurisdiction

        (1) The place of performance for all supplies/services is the place of receipt designated by the Client.

        (2) The place of jurisdiction shall be the Client's registered office or, at the Client's option, the general place of jurisdiction of the Contractor.

        (XIV) Applicable law

          All legal relations between the Client and the Contractor shall be governed by the substantive law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980, as amended from time to time.

          (XV) Prohibition of advertising/secrecy

          (1) The use of the terra infrastructure GmbH logo and word mark shall require the prior written consent of terra infrastructure GmbH in each individual case.

          (2) The Contractor shall maintain secrecy vis-à-vis third parties regarding all operational processes, facilities, equipment, documents, etc. used at the premises of the Client and of the latter's customers of which it becomes aware in connection with its activities for the Client, even after submission of the corresponding offers or completion of the contract. It shall impose corresponding obligations on its vicarious agents.

          (XVI) Retention of title

          (1) Any simple reservation of title on the part of the Contractor shall only be recognized by the Client if ownership of the goods is transferred to it upon payment and the Client is authorized to resell and pass on the goods in the ordinary course of business. Specific forms of retention of title, in particular transferred, subsequent or extended retention of title, current account retention or extended corporate retention of title shall not be accepted. Contrary terms and conditions of business of the Contractor shall not be recognized by the Client; they are hereby expressly rejected and shall not form part of the contract.

          (2) The Contractor may only demand the return of goods on the grounds of retention of title if it has previously withdrawn from the contract.

          (XVII) Severability/written form

            Should individual provisions of these conditions become entirely or partially invalid, the remaining provisions shall remain valid. The same applies to the respective contract. Insofar as these GTCP require declarations by the contracting parties to be in writing, text form shall suffice in each case.

            (XVIII) REACH clause

              The Contractor must comply with the requirements and measures resulting from the REACH Regulation for all substances, preparations and articles delivered/provided to the Client.

              (XIX) Declaration of originating status

                In the event that the Contractor makes declarations regarding the originating status of the goods sold, the following shall apply:

                (1) The Contractor undertakes to permit the customs authority to examine documentary evidence of origin and to provide the necessary information on this and supply any confirmations required.

                (2) The Contractor shall compensate for any damage incurred as a result of the declared origin not being recognized by the competent authority due to a lack of documentary evidence or the inability to check, unless these consequences are beyond the Contractor’s control.

                (XX) Force majeure

                  Force majeure, industrial disputes, riots, official measures and other unforeseeable, unavoidable and serious events shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent that their obligations are affected. This shall also apply if these events occur at a time when the contracting party concerned is in default. The contracting parties undertake to provide any necessary information which may reasonably be expected without delay, and to adjust their obligations in good faith to the changed circumstances.

                  (XXI) Applicable version

                    Where these General Terms and Conditions of Purchase are also made available to the Contractor in another language, the German version shall take precedence.

                    As at: June 2022