GTC

These General Terms and Conditions (GTC) regulate the general conditions for the delivery and - if commissioned - installation of products of HygroMatik GmbH (hereinafter "Contractor") and its contractual partners (hereinafter "Customer") (hereinafter also jointly referred to as "Parties").

Separate agreements apply to the services offered by HygroMatik GmbH (software development, Internet of Things, cloud solutions, maintenance, etc.).

§ 1 Scope, form
a. The following provisions apply to all Contractor offers and any contractual relationship established on their basis.
These GTC shall also apply to all future transactions between the parties.
Conflicting or deviating terms and conditions of third parties or of Customer shall not be recognised by Contractor. They shall only be recognised if Contractor has expressly agreed to them in writing.
b. These General Terms and Conditions shall only apply to companies within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law within the meaning of § 310 of the German Civil Code (BGB).

§ 2 Offer and contractual relationship
a. Contractor's offers are not binding. A contractual relationship shall only come into existence when Contractor confirms acceptance of the order to Customer.
b. Documents associated with the offer, such as drawings, weights and dimensions, are only approximate unless they are expressly designated as binding.
c. Documents associated with the offer, such as drawings, weights and dimensions, do not constitute objective characteristics of the object of purchase and therefore, in the event of deviation, do not constitute a material defect.
d. The illustrations, drawings, weights and dimensions enclosed by us shall only become binding upon conclusion of the contract and until then shall only serve as illustrations; nevertheless, we shall be entitled to the property rights and copyrights thereto. Forwarding these documents to third parties requires our consent in text form.
e. When submitting our non-binding offer, we assume the completeness of the information provided by Customer in the project description and the correctness of the technical data provided by Customer. We cannot consider circumstances of which we are unaware. We do not provide any planning in connection with the delivery and assembly of our products.

§ 3 Delivery period and delay in delivery
a. Delivery periods shall only be deemed to have been agreed with the express written confirmation by Contractor.
b. The occurrence of a delay in delivery on the part of Contractor shall be determined in accordance with the statutory provisions. In any case, however, Customer must send a reminder.
c. Events of force majeure (such as strikes, lockouts, war and mobilisation, operational disruptions (irrespective of the cause), delayed or insufficient provision of carriages by Deutsche Bahn AG, blocking of railway lines, etc.) shall entitle us to cancel all or part of our delivery obligations.

§ 4 Prices / Payment
a. The prices stated in Contractor's offer or in Contractor's acceptance (order confirmation) are solely authoritative. Prices are ex works for HygroMatik products (Incoterm: FCA Henstedt-Ulzburg) and CAREL products (Incoterm: DAP) plus shipping and packaging costs.
b. Agreed installation prices are estimated prices based on information provided by Customer.
c. Invoicing for the delivery of our products will take place at the same time as the dispatch of the goods. Invoicing for the installation of our products shall take place immediately after the installation has been completed. Invoicing shall also constitute our declaration that we have performed our service in full.
d. All prices are net prices without statutory (sales) tax or other charges.
e. The purchase price is due and payable within 30 days from the date of invoice net cash. Payment shall be cashless and by bank transfer to the account listed on the invoice.
f. Upon expiry of the aforementioned payment deadline, the buyer shall be in default.
g. Depending on creditworthiness information and individual payment behaviour, we reserve the right to demand partial or full prepayment. Service invoices are always due immediately without deduction.
h. Customer shall only be entitled to rights of set-off or retention insofar as their claim has been legally established or is undisputed. In the event of defects in the delivery, the rights of Customer shall remain unaffected.
i. The professional disposal of packaging materials and the costs incurred for this shall be borne by commercial customers. The disposal costs for private end consumers as well as comparable sources are covered by our participation in the German Dual System (LUCID packaging registration number DE4405667300111).

§ 5 Place of performance, fulfilment and subsequent fulfilment
Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. The goods will be shipped to another destination at the request and expense of the buyer. Contractor is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) himself. The consignment will be insured against all types of transport damage at Customer's request and expense. The place of performance, fulfilment and subsequent fulfilment is the registered office of Contractor.

§ 6 Delivery time, delivery failure and confirmation of receipt
The delivery time is determined by the agreement in text form - as a rule the order confirmation of Contractor - with Customer and refers to the time of readiness of the goods in Contractor’s warehouse.
a. Contractor's compliance with the delivery period is subject to all commercial and technical questions having been clarified Customer and Customer having fulfilled all obligations incumbent upon him. If this is not the case, then the delivery period shall be extended accordingly. This does not apply if Contractor is responsible for the delay.
b. Compliance with the delivery period is subject to correct and timely self-delivery by Contractor's suppliers, insofar as Contractor has concluded a congruent covering transaction with a supplier and Customer is not responsible for the supplier's failure to deliver or the delay in delivery. Contractor shall inform Customer without delay of the non-delivery or the delay of the delivery by a supplier. Likewise, Contractor shall immediately inform Customer of the expected new delivery deadline.
c. If self-delivery is no longer to be expected (e.g., due to breach of contract, insolvency or destruction of the supplier's production facility), or if the goods are not available even after the expiry of the new delivery period, Contractor is entitled to withdraw from the contract and will immediately reimburse any payments by Customer.
d. In the case of deliveries and services outside Germany, the unsolicited submission of the corresponding Confirmation of Delivery (COD) by Customer within 30 days of dispatch is indispensable for invoicing without VAT.
e. If Contractor does not receive the Confirmation of Delivery after 30 days, the VAT shall automatically be owed by Customer and invoiced to Customer by Contractor.
f. Customer may only claim delays insofar as he himself has fully complied with his payment or cooperation obligations. Customer is obliged to accept partial deliveries insofar as they are reasonable for Customer.

§ 7 Transfer of risk, dispatch and default of acceptance
a. The risk of accidental loss and accidental deterioration of the products shall pass to Customer at the time of dispatch or handover to a person designated to carry out the dispatch or as soon as Customer is aware that the products are ready for dispatch.  
b. Contractor shall be entitled to choose the means of transport. At Customer's request, the consignment shall be insured against all types of transport damage at Customer's expense.

§ 8 Retention of title
a. Contractor retains ownership of the delivered products until the purchase price has been paid in full (simple retention of title).
b. If, despite payment of the price for the delivered products, further liabilities arising from the business relationship with Contractor have not been paid in full by Customer, then Contractor shall furthermore retain ownership of the delivered products until all liabilities have been paid in full (extended retention of title).
c. The retention of title extends to the products created by processing, mixing or combining Contractor's goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, then Contractor shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title. If the products delivered by Contractor are mixed or combined with an item of Customer in such a way that the customer's item is to be regarded as the main item, co-ownership of the main item shall be transferred to Contractor. This shall take place in proportion to the invoice value of the products delivered by Contractor. Safekeeping by the customer shall be free of charge. (Processing, combining and mixing clause).
d. Customer is authorised to dispose of the goods subject to retention of title in the ordinary course of business. All claims arising from the sale of goods subject to retention of title by Contractor shall be assigned by Customer to Contractor at the time of the conclusion of the contract with Contractor. The assignment shall be made in the ratio of the value of the products delivered by Contractor under retention of title to the value of the products owned by third parties under retention of title if processing, combination or mixing has taken place (extended retention of title).
e. Customer shall mark the products owned by Contractor as such and inform his customers of the assignment (right to information/disclosure).
f. Contractor may demand the return of the products owned by Contractor in the event of default of payment by Customer (default of payment).
g. For this purpose, Contractor shall be granted access to the corresponding rooms. Any further retrieval costs incurred shall be charged to Customer.
h. In the event that the claims to be secured exceed the above-mentioned securities of Contractor by more than 10 %, then Contractor is obliged to release the securities according to his selection at the request of Customer (partial waiver clause)

§ 9 Claims for defects and damages by the purchaser
a. If the delivered item is defective, Contractor may choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement).  
b. The supplementary performance does not include the removal of the defective item or the re-installation if Contractor was not originally obliged to install it.
c. The expenses required for the purpose of inspection and subsequent performance shall be reimbursed by Contractor in accordance with the statutory regulations if there is actually a defect. Otherwise, Contractor may demand reimbursement from Customer of the costs incurred as a result of the unjustified request for rectification of the defect, unless the lack of defectiveness was not recognisable to the customer.
d. Any warranty shall be void for damage caused by the following reasons:
Unsuitable or improper use, faulty assembly or commissioning by Customer or third parties, natural wear and tear (steam cylinder), faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable subsoil, thermal, mechanical, chemical, electrochemical or electrical influences - insofar as they are not the responsibility of Contractor, as well as wear and tear not attributable to defects (natural or operational ageing or wear and tear).
e. Likewise, Contractor shall not be liable for defects that are the result of observing Customer’s specifications, irrespective of whether these specifications have become part of the contract or have been implemented at Customer’s request or instruction without an express contractual basis.
f. The claim for rectification of defects shall include the free replacement of defective components, including labour and material, exclusively in Germany (mainland) and Austria. Outside the aforementioned regions, the warranty claim for the elimination of defects is limited to the free shipment of corresponding spare parts as a material-only delivery without installation to the original place of delivery. In this case, Contractor reserves the right to reclaim the defective component.

§ 10 Other liability
a. Insofar as nothing to the contrary arises from these GTC, including the following provisions, Contractor shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
b. Claims of Customer for damages and reimbursement of fruitless expenses against Contractor, its executive bodies and legal representatives and/or vicarious agents, irrespective of the legal grounds, in particular due to breach of the contractual obligation and/or tort, are excluded as a matter of principle.
c. Contractor shall be liable for damages, irrespective of the legal grounds, within the scope of fault liability in the event of intent and gross negligence. In the case of simple negligence, he shall only be liable, subject to statutory limitations of liability (for example, due diligence concerning his own affairs)
- for damages resulting from injury to life, body or health
- for damages arising from the breach of an essential contractual obligation; in this case, however, liability shall be limited to compensation for foreseeable, typically occurring damage.
d. For damages arising from the breach of an essential contractual obligation, Contractor's liability shall be limited to compensation for foreseeable, typically occurring damage.
e. Due to a breach of duty that does not consist of a defect, Customer may only withdraw or terminate the contract if Contractor is responsible for the breach of duty. Customer's free right of termination is excluded. In all other respects the statutory requirements and legal consequences shall apply.

§ 11 Limitation
a. All claims of Customer against Contractor, irrespective of the legal grounds, shall become statute-barred 24 months after delivery of the goods. Where an acceptance is to take place, the limitation period shall commence with the acceptance. This shall be without prejudice to special statutory provisions for claims in rem for the surrender of goods by third parties (section 438 subsection 1 no. 1 BGB), in the event of fraudulent intent on the part of the seller (section 438 subsection 3 BGB) and for claims in supplier recourse in the event of final delivery to a consumer (sections 478, 479 BGB). The limitation period according to sentence 1 also does not apply to claims for damages by Customer based on intent or gross negligence, as well as to claims for damages in cases in which we are compulsorily liable (section 10, subsection 3). In these cases, the statutory limitation periods shall apply exclusively.
b. If, however, the goods are a building or an object that has been used for a building in accordance with its customary use and has caused its defectiveness, the limitation period shall be five years from delivery in accordance with the statutory provision. Other special statutory provisions on limitation shall also remain unaffected.
c. The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages to Customer based on a defect in the goods unless the application of the regular statutory limitation period would lead to a shorter limitation period in individual cases. However, claims for damages to Customer pursuant to § 10c sentences 1 and 2 as well as pursuant to the German Productivity Liability Act (ProdHaftG) shall become statute-barred exclusively in accordance with the statutory limitation periods.

§ 12 Receipt of declarations
Notifications and other declarations to be made to a Party must be received by that Party in text form.

§ 13 Data protection
If one of the Parties receives personal data within the meaning of Regulation (EU) no. 2016/679 (GDPR) or the Federal Data Protection Act (BDSG), the receiving Party guarantees that it will comply with all relevant European and German data protection regulations. The receiving Party is aware of the fact that both confidential information and other content or information of the publishing Party may constitute personal data and warrants that all personal data received or to be received in the future will be collected, processed and used in compliance with all relevant European and German data protection regulations.

§ 14 Conformity with laws and regulations
It is self-evident for Contractor that all laws, standards and guidelines applicable in Germany with regard to its business activities and products are fully complied with at all times. This applies in particular with regard to the prohibition of corruption. Contractor does not bribe and is not open to bribery.

§ 15 Applicable law
The contractual relationship concluded between the Parties shall be governed by the law of the Federal Republic of Germany to the exclusion of private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980.

§ 16 Severability clause
Should one or more of the provisions of these Terms and Conditions or of a contract concluded on the basis of these Terms and Conditions be or become invalid, impracticable or unenforceable in whole or in part, then the remaining provisions shall not be affected by this. The Parties are obliged to agree on a provision in place of the invalid, impracticable or unenforceable provision that comes as close as possible to what the Parties intended according to the original meaning and purpose of the invalid, impracticable or unenforceable provision. The same applies to any loopholes in these Terms and Conditions or the corresponding contract and in the event that the ineffectiveness is based on a measure of performance or time; the legally permissible measure shall then apply.

§ 17 Jurisdiction
For all disputes arising from the contractual relationship, the place of jurisdiction shall be the general place of jurisdiction at Contractor's registered office.

Satus, September 2022