I.             Part A – General

1.            SCOPE

1.1         These General Terms and Conditions (hereinafter referred to as "GTC") shall apply to the following companies of the SIMPEX group:

            The respective company of SIMPEX Group with which a contract is concluded is hereinafter referred to as "SIMPEX".

1.2         The GTC shall apply to inquiries and orders for (i) the purchase of goods and (ii) services and works (Dienst- und Werkleistungen; services and works hereinafter individually or jointly referred to as “Services”). The GTC shall be an integral part of all contracts concluded by SIMPEX with its contractual partners (hereinafter referred to as "Customer"; SIMPEX and Customer hereinafter individually or jointly also “Party” / “Parties”) for the purchase of goods or Services, even if they are not separately referred to in the respective contractual documents.

1.3         For contracts for the supply of goods, in addition to this Part A – General Conditions, the provisions in Part B – Conditions of Sale shall also apply.

1.4         For contracts for Services, in addition to this Part A – General Conditions, the provisions in Part C – Conditions for Services shall also apply.

1.5         Unless otherwise agreed, the GTC shall apply as a framework agreement in the relevant version valid at the time of the Customer’s order or, in any case, in the respective version last provided to the Customer in text form, and also for similar future contracts, without having to refer to them again in each individual case.

1.6         The GTC shall apply only to Customers who, at the time of conclusion of the contract, are acting in the exercise of their trade, business or profession (entrepreneurs – Unternehmer) or to legal entities under public law or special funds under public law (juristischen Personen des öffentlichen Rechts oder öffentlich-rechtlichen Sondervermögen).

1.7         Individual agreements made with the Customer in individual cases (including ancillary agreements, additions and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation by SIMPEX shall be authoritative for the existence and content of such agreements.

1.8         References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.

2.            EXCLUSIVITY

            The GTC shall apply exclusively. Conflicting or deviating terms and conditions of the Customer shall only be binding if and to the extent that SIMPEX expressly agrees to their validity in writing. These GTC shall also apply if SIMPEX executes the order without reservation and in knowing of conflicting or deviating terms and conditions of the Customer.

3.            OFFER, ACCEPTANCE, FORM of DECLARATIONS

3.1         Quotations of SIMPEX are always subject to change and non-binding, unless otherwise agreed. This shall also apply if SIMPEX has provided the Customer with documentation, product descriptions or other written and electronic documents in advance.

3.2         The order of the goods or Services by the Customer shall be deemed to be a binding offer. SIMPEX may accept this offer either by sending an order confirmation (in writing or in text form) or by delivering the goods within four weeks of receipt (Zugang) of the offer.

3.3         Legally relevant declarations and notifications to be made by the Customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective unless another form is provided for in these GTC.

4.            OFFSETTING AND ASSIGNMENT

4.1         Claims of SIMPEX may only be offset against undisputed or legally established claims of the Customer. The same shall apply to the exercise of rights to refuse performance and rights of retention, unless they are based on the same contractual relationship.

4.2         The assignment of claims of the Customer against SIMPEX without prior consent of SIMPEX at least in text form is excluded. In particular, the assignment of the main contractual claim by the Customer shall be excluded.

5.            RETENTION OF TITLE

5.1         SIMPEX retains title of the goods delivered by it (reserved goods) until all claims of SIMPEX against the Customer arising from the business relationship with SIMPEX, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims of SIMPEX have been included in a current invoice and the balance has been drawn and acknowledged.

5.2         The Customer shall treat the delivered goods, which remain the property of the Contractor, with care. In particular, the Customer is obliged to insure the goods adequately at its own expense against damages due to fire, water and theft at replacement value.

5.3         The retention of title shall also extend to the products resulting from the processing, mixing, blending or combining of the goods of SIMPEX at their full value, in which case SIMPEX shall be deemed to be the manufacturer, without any obligations arising for SIMPEX as a result. If, in the event of processing, mixing, blending or combining with goods of third parties, their ownership rights remain, SIMPEX shall acquire co-ownership of the new thing in proportion of the value of the goods subject to retention of title to the other processed goods at the time of processing, mixing, blending or combining.

5.4         The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. In the event of pledges, seizures or other dispositions or interventions by third parties in the goods delivered by SIMPEX, the Customer shall notify the Contractor immediately in writing. The Customer shall be liable to SIMPEX for damages resulting from the fact that the third party is not in a position to reimburse the judicial and/or extrajudicial costs of an action pursuant to § 771 German Code of Civil Procedure (ZPO).

5.5         The Customer is authorized to sell the delivered goods in the ordinary course of business. The Customer hereby assigns the claims against third parties arising from the resale in total (including any tax amounts, e.g. value added tax) or in the amount of any co-ownership share with all ancillary rights as security to SIMPEX, who accepts the assignment. The Customer shall be authorized to collect these claims even after assignment. SIMPEX’s right to collect the claims itself shall remain unaffected; however, SIMPEX shall not collect the claims as long as the Customer duly meets its payment and other obligations. If SIMPEX collects assigned claims, it may demand that the Customer informs SIMPEX of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors of the assignment, and may revoke the Customer’s authorization to resell and process the goods subject to retention of title.

5.6         If SIMPEX revokes the contract, it may take back the reserved goods, disclose the security assignment and utilize the reserved goods and the assigned claims to satisfy due claims against the Customer. For the purpose of taking back the reserved goods, the Customer shall grant SIMPEX access to and surrender the reserved goods.

5.7         If the realizable value from the assigned claims and the reserved goods exceeds the claims of SMPEX against the Customer by more than 10 %, SIMPEX shall release securities at its discretion until there is no longer any excess security.

6.            LIABILITY

6.1         SIMPEX shall only be liable as follows for all claims against it, insofar as fault is relevant in each case, irrespective of the legal grounds, in particular for impossibility of performance, delay, defective delivery, tort:

6.1.1     In the event of intent or gross negligence, SIMPEX shall be liable without limitation.

6.1.2     In the event of a breach of material contractual obligations (cardinal obligations – obligations the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on) due to simple negligence, including in the case of tort, SIMPEX’s liability, with the exception of liability for damages arising from injury to life, limb or health, shall be limited to the amount of the foreseeable risk typical for the contract.

6.1.3     In the event of a breach of non-material contractual obligations due to simple negligence, including in the case of tortious acts, SIMPEX’s liability shall be excluded; this shall not apply to liability for damages arising from injury to life, body or health.

6.2         The above limitations of liability or exclusions of liability shall also not apply to claims for damages due to any guarantees assumed and to claims under the German Product Liability Act. The Customer’s right to revoke the contract in the event of a breach of duty for which SIMPEX is responsible shall remain unaffected.

6.3         Insofar as SIMPEX’s liability is excluded or limited pursuant to section 6.1 above, this shall also apply to the personal liability of its employees, workers, representatives and vicarious agents.

6.4         The Customer shall be obliged to immediately notify SIMPEX in writing of any damage for which SIMPEX is liable and to give SIMPEX the opportunity to investigate the damage and its causes.

7.            EXPORT CONTROL, EMBARGO REGULATIONS, REVOCATION, DEADLINES

7.1         The Customer shall comply with all laws and regulations on embargoes, on economic, trade or financial sanctions as well as on other restrictive measures (each an "Embargo") issued by Germany, the European Union or the USA against states, companies, institutions and/or persons. Accordingly, the Customer undertakes to refrain from the following:

7.1.1     Exporting or re-exporting the goods directly or indirectly delivered by SIMPEX to a country subject to an Embargo without having first obtained all necessary permits from the respective competent authorities.

7.1.2     The delivery of the goods directly or indirectly delivered by SIMPEX to persons, companies or institutions subject to an Embargo. The same shall apply to persons, companies or institutions where there is reason to believe that they do not fully comply with the applicable national or international provisions regarding an Embargo.

7.1.3     The export or re-export of the goods directly or indirectly delivered by SIMPEX for the purpose of use in areas which are prohibited or which are subject to legal restrictions and/or an Embargo.

7.2         Prior to the (re-)export of the goods directly or indirectly delivered by SIMPEX, the Customer undertakes to carry out all necessary inspection measures (sanctions lists, end-use, Embargo provisions, etc.) to ensure compliance with national, international and, in particular, EU (re-)export control regulations and, if required, to obtain the necessary permits and documents from the competent authorities at its own expense. The Customer shall not be entitled to return goods or to claim damages if an export permit is refused by the authorities. If the Customer has knowledge of the (intended) end use of delivered goods for weapons, it is prohibited to transfer the goods of SIMPEX.

7.3         In the event of an official investigation or examination with regard to compliance with export and/or Embargo provisions, the Parties provide each other comprehensive support, in particular the provision of information and documents within the scope of legality and undertake to cooperate with the competent government agencies.

7.4         The Customer shall inform SIMPEX without delay and without being requested to do so, at least in text form, if Customer breaches the obligations pursuant to sections 7.1.1. through and including 7.1.3 or becomes aware of a suspected breach of these obligations.

7.5         If the Customer violates the obligations pursuant to sections 7.1.1. through and including 7.1.3, SIMPEX shall be entitled to revoke the contract. The assertion of any further claims, in particular claims for damages, shall remain unaffected.

7.6         SIMPEX reserves the right to examine export law provisions and shall deliver subject to any necessary official approval (e.g. an export permit).  In this regard, SIMPEX shall make all reasonable efforts to obtain any required official permit. However, no guarantee or warranty is given that the required official permit will be granted. The Customer undertakes to support SIMPEX in obtaining any required permit and to provide the necessary documents and information within a reasonable period of time.

7.7         In the event of delays due to applicable requirements under foreign trade law (in particular approval requirements), delivery / service periods shall be extended and delivery / service dates shall be postponed by the duration of a reasonable examination period and the processing time of the authorities. Provided that the impediment to performance is not merely temporary, both Parties shall be entitled to withdraw from the contract. Any services already received shall be returned without delay in the event of withdrawal. In this respect, claims for damages are excluded.

7.8         In the event that a required permit is not granted, any claim for damages or reimbursement of expenses shall be excluded unless the respective party against whom such a claim is asserted is responsible for the failure to obtain the permit.

7.9         The procurement of any required import permit shall be the responsibility of the Customer.

8.            FORCE MAJEURE, OTHER DISRUPTIONS, REVOKATION

8.1         Cases of force majeure shall entitle the party affected by the event to reasonably extend delivery dates and performance periods in accordance with the scope and duration of the circumstances of force majeure and their consequences. The affected party shall notify the other party of the event without undue delay. If necessary, the parties shall enter into discussions on measures to be taken.

8.2         In cases of force majeure and other events, such as operational disruptions of any kind at the manufacturer's works, substantial difficulty or impossibility of procuring materials or energy, transport delays or lawful lockouts, SIMPEX shall be entitled to withdraw from the contract if the delivery or Service has become impossible or has been substantially impeded not only temporarily as a result of the aforementioned events. SIMPEX shall inform the Customer immediately about delays or unavailability of goods or Services before withdrawal. If SIMPEX withdraws from the contract and if the Customer has already provided consideration in whole or in part, such consideration shall be reimbursed to the Customer without delay.

8.3         The Customer may revoke the contract if it cannot reasonably be expected to accept the goods or Services as a result of the delay.

8.4         Cases of force majeure shall not entitle the other Party to claims for damages. An adjustment of the contract up to its complete cancellation shall be permissible if one Party can no longer reasonably be expected to adhere to the contract in view of all circumstances.

8.5         Events of force majeure are external events which are unrelated to business operations and which cannot be averted even by exercising the utmost reasonable care. This includes in particular:

8.5.1     natural disasters of any kind, such as earthquakes, volcanic eruptions, tsunamis, extraordinary floods, storms, lightning strikes, conflagrations, and other catastrophic events beyond human control;

8.5.2     epidemics, pandemics (including but not limited to COVID-19);

8.5.3     riot, blockade, fire, civil war, embargo, hostage taking, war, revolution, sabotage;

8.5.4     unforeseeable governmental intervention, regulation, or other decision or action that qualifies as unforeseeable;

8.5.5     strikes or work stoppages by employees insofar as they occur at third parties;

8.5.6     terrorist attacks, explosions, breakdowns in traffic and

8.5.7     any type of major event of pollution, poisoning or radiation with catastrophic effects that negatively impact business operations or indirectly negatively impact subcontractors by affecting them.

9.            DATA PROTECTION

            The Parties shall process or use personal data of the respective other Party only for contractually agreed purposes and in compliance with the statutory provisions.

10.         INVENTIONS / INTELLECTUAL PROPERTY

10.1      Inventions made by employees of SIMPEX during the performance of Services, as well as industrial property rights granted for such inventions, shall belong to SIMPEX. Inventions made during the performance of Services by employees of the Customer, as well as industrial property rights granted for such inventions, shall belong to the Customer.

10.2      The granting of licenses to inventions within the meaning of section 10.1 and to industrial property rights granted therefor shall require a special written agreement between the Parties.

10.3      SIMPEX reserves all property rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without prior written consent by SIMPEX. This shall apply in particular but not exclusively to such written documents which have been designated as "confidential". Drawings and other documents relating to offers shall be returned immediately upon request if the order is not placed with SIMPEX.

10.4      In the event of a breach of the obligation pursuant to section 10.3 above, the Customer undertakes to pay a reasonable contractual penalty in the amount of up to 5 % of the net order value, which shall be determined by SIMPEX at its reasonable discretion and, if necessary, shall be subject to judicial review of reasonableness and adjustment.

11.         SURRENDER OF DOCUMENTS AND OBJECTS, RIGHT OF RETENTION

11.1      After completion of an order, the Customer may demand from SIMPEX the surrender of the documents and objects provided to it. SIMPEX may refuse to surrender the documents and items until it has received satisfaction of its claims under the contract, unless the withholding of individual documents and items would be contrary to good faith under the circumstances.

11.2      SIMPEX may make and keep one copy or transcript of documents that it returns to the Customer.

12.         SOLVENCY OF THE CUSTOMER, REVOKATION

12.1      SIMPEX regularly checks the creditworthiness of Customers when concluding contracts and in certain cases where there is a legitimate interest. For this purpose, it uses the services of

-          Creditreform Boniversum GmbH (Hellersbergstraße 11, 41460 Neuss),

-          Verband der Vereine Creditreform e.V. (Hellersbergstraße 12, 41460 Neuss) and

-          CRIF Bürgel GmbH (Radlkoferstraße 2, 81373 Munich),

            from which it receives the data required for this purpose. For this purpose, it transmits the name and contact details of the Customer to the above-mentioned credit agencies. The information pursuant to Art. 14 of the EU General Data Protection Regulation on the data processing taking place at the credit agencies can be found at: www.boniversum.de/EU-DSGVO, at www.creditreform.de/EU-DSGVO and www.crifbuergel.de/de/datenschutz.

12.2      If it becomes apparent after the conclusion of the contract that SIMPEX’s claim for payment of the remuneration is at risk due to the Customer’s lack of solvency, SIMPEX shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). The Customer may avert the withdrawal by providing security. In the case of contracts for the manufacture of non-fungible goods (custom-made products), SIMPEX may withdraw immediately; the statutory provisions on the exemption from setting a deadline shall remain unaffected.

13.         COST ALLOCATION IN SPECIAL CASES

            If, in the case of a repair order, the repair proves to be technically or economically impossible or if the Customer refrains from the repair in view of the cost estimate, the Customer shall remunerate the damage assessment or the preparation of the cost estimate. The payment obligation also applies if the Customer instructs SIMPEX to dispose of items provided for repair or to return them to the Customer unrepaired.

14.         PLACE OF JURISDICTION

14.1      The place of jurisdiction for disputes between the Customer and SIMPEX shall be the courts having local jurisdiction at the registered office of SIMPEX. However, SIMPEX may, at its own discretion, also bring any matter before the courts at the Customer's place of business. Exclusive jurisdiction shall remain unaffected.

15.         GENERAL PROVISIONS, CHOICE OF LAW

15.1      Contracts shall be concluded in writing. Ancillary agreements shall only be effective if they are confirmed in writing by SIMPEX.

15.2      Only the German version of these GTC shall be binding. The English version is merely for ease of understanding.

15.3      The contract shall be governed by German law excluding its conflict of law rules and the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).

15.4      Should any of the provisions of these GTC be or become legally ineffective or unenforceable for any reason whatsoever, or should these GTC contain a gap, the effectiveness of the remaining provisions shall not be affected thereby. In place of the invalid or unenforceable provisions or in filling the gap, an appropriate provision shall apply which, within the scope of what is legally permissible, comes as close as possible to what the parties intended or would have intended if they had considered the point.

15.5      If the invalidity of a provision is based on a measure of performance or time (deadline or date) specified therein, a legally permissible measure of performance or time that comes as close as possible to what was intended shall replace what was agreed.

II.            Part B – Conditions of Sale

            In addition to Part A - General Conditions, the following provisions of this Part B – Conditions of Sale shall apply to contracts for the supply of goods.

1.            QUALITY OF GOODS

1.1         The quality of the goods shall be determined by SIMPEX's order confirmation and any other product description included in the contract. Information on the quality of the goods in brochures, catalogs, on the Internet or in advertising shall only be considered as approximate values, unless such information is included in the order confirmation. SIMPEX shall not be liable for public statements of the manufacturer or other third parties (e.g. advertising statements). This shall also apply to any illustrations.

1.2         Agreements on the quality of the goods, in particular in accordance with section 1.1 above in this part B, shall take precedence over objective requirements (§ 434 para. 1 BGB).

2.           PRICES, TERMS OF PAYMENT

2.1         Unless otherwise stated in the order confirmation, the prices shall apply "ex works", excluding packaging, which shall be invoiced separately.

2.2         All prices are in Euro plus value added tax, which shall be shown separately on the invoice at the statutory rate applicable on the date of invoicing. In the case of export deliveries, the Customer shall additionally bear all customs duties as well as all other fees and public charges.

2.3         Unless otherwise stated in the order confirmation, the net purchase price (without deductions) shall be due for payment within 30 days from the invoice date. SIMPEX shall be entitled to demand immediate payment of its invoices, in particular, if a significant decline in the financial circumstances of the Customer becomes known after the conclusion of the contract. If the Customer is in default of payment, SIMPEX shall be entitled to demand interest on arrears in the amount of 9 percentage points above the respective base interest rate p.a. Further claims of SIMPEX are not excluded.

2.4         SIMPEX reserves the right to change the prices appropriately if, after the conclusion of the contract, cost reductions or cost increases occur, in particular due to collective agreements or changes in the price of materials. SIMPEX shall provide evidence of such changes to the Customer at its request.

2.5         With regard to the crediting of payments, §§ 366 para. 2, 367 BGB shall apply; any deviating payment provision (Leistungsbestimmung) of the Customer shall be irrelevant.

3.            SHIPPING

3.1         Delivery of the goods shall be "ex works". The risk of accidental loss shall in any case pass to the Customer upon handover of the goods (start of the loading process) to the forwarding agent, carrier or any other third party designated to carry out the shipment. This shall also apply if partial deliveries are made. If the shipment is delayed for reasons within the Customer's scope of responsibility, the transfer of risk shall take place upon notification to the Customer that the goods are ready for shipment. Storage costs after the passing of risk shall be borne by the Customer and shall be invoiced to the Customer.

3.2         SIMPEX shall insure shipments against damages due to theft, transport, fire and water or other insurable risks only at the express request of the Customer and at the Customer's expense. Otherwise, the shipment shall be made uninsured at the risk of the Customer.

4.            DELIVERY TIME, SELF-DELIVERY PROVISIO; REVOKATION

4.1         Delivery periods and dates communicated by SIMPEX shall always be non-binding, unless SIMPEX has given a binding written undertaking to comply with them. In the event of a sales shipment (Versendungskauf), compliance with the delivery periods and dates shall be determined by the time of the respective transfer of risk. The commencement of a delivery period agreed by SIMPEX in writing shall be subject to the prior clarification of all organizational and technical issues as well as the timely and proper fulfillment of the obligations of the buyer, such as in particular the receipt of any agreed down payment.

4.2         If the Customer is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the Customer is responsible, SIMPEX shall be entitled to demand compensation for the damage incurred by it, including any additional expenses. In this case, the risk of accidental loss of or accidental damage to the goods shall also pass to the Customer at the time when the Customer is in default of acceptance. SIMPEX reserves the right to assert further claims.

4.3         Correct and timely self-delivery remains reserved. SIMPEX shall inform the Customer without delay of any delays or non-availability of goods.

4.4         SIMPEX shall be entitled to make partial deliveries insofar as this is reasonable for the Customer, taking its interests into account.

4.5         SIMPEX reserves the right to make technically necessary or expedient changes to the goods during the delivery period, insofar as these are reasonable for the Customer, taking its interests into account.

5.            DEFECTS

5.1         The statutory provisions shall apply to the rights of the Customer in case of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below.

5.2         The basis of SIMPEX's liability for defects shall be the agreement reached on the quality of the goods (cf. section 1.1 in this Part B).

5.3         Warranty claims shall not arise if a defect is attributable to violations of operating, maintenance and installation instructions, unsuitable or improper use, faulty or negligent handling and natural wear and tear as well as interventions in the delivery item carried out by the Customer or third parties.

5.4         The Customer's claims for defects shall be subject to the condition that the Customer has complied with its statutory obligations to inspect the goods and to give notice of defects (§§ 377, 381 HGB). The Customer shall notify SIMPEX in writing of any obvious defects (including incorrect and short deliveries) within one week of delivery, whereby timely posting of the notification shall suffice to meet the deadline. If a defect becomes apparent during the inspection or later, SIMPEX shall be notified thereof in writing without delay. The notification shall be deemed to have been made without delay if it is made within one week of the inspection or discovery of the defect, whereby the timely posting of the notification shall suffice to meet the deadline. If the Customer fails to duly inspect the goods and/or notify the defect, SIMPEX shall not be liable for the defect not notified in time.

5.5         If the delivered goods are defective, the Customer shall be entitled to demand, at the free discretion of SIMPEX, that the defect be remedied or that a defect-free thing be delivered.

5.6         SIMPEX shall be entitled to make the subsequent performance owed dependent on the Customer paying the purchase price due. However, the Customer shall be entitled to retain a part of the purchase price that is reasonable in relation to the defect.

5.7         The Customer shall give SIMPEX the time and opportunity required for the subsequent performance owed, in particular to hand over the notified goods for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective thing to SIMPEX in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective thing nor the re-installation if SIMPEX was not originally obliged to install it.

5.8         The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), shall be borne by SIMPEX if there is actually a defect. Otherwise SIMPEX shall be entitled to demand reimbursement from the Customer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Customer.

5.9         In urgent cases, e.g. in the event of a risk to operational safety or to prevent disproportionate damage, the Customer shall have the right to remedy the defect himself and to demand compensation from SIMPEX for the expenses objectively necessary for this purpose. SIMPEX shall be notified of such self-execution without delay, if possible in advance. The right of self-execution shall not exist if SIMPEX would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

5.10      If the subsequent performance has failed or if a reasonable period to be set by the Customer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.

5.11      Claims of the Customer for damages or reimbursement of futile expenses, irrespective of the legal grounds, shall also be subject to the liability provisions in these GTC in the event of defects (cf. Part A section 6). Further legal rights, e.g. from product liability law, shall remain unaffected.

5.12      SIMPEX shall only assume a guarantee of quality or durability for drawings or illustrations published or provided by SIMPEX or its vicarious agents, specified dimensions or other performance data, or the delivery of samples or specimens, if expressly designated as such (§ 443 BGB).

6.            STATUTE OF LIMITATIONS

6.1         Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

6.2         If, however, the goods are a building structure or a thing which has been used for a building structure in accordance with its customary manner of use and has caused its defectiveness (building material), the limitation period shall be five years from delivery in accordance with the statutory provision (§ 438 (1) No. 2 BGB). Other mandatory special statutory provisions on the limitation period shall also remain unaffected.

6.3         The above limitation periods shall also apply to contractual and non-contractual claims for damages of the Customer if the claims are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages by the Customer pursuant to Part A section 6.1.1 as well as claims under warranties and under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

III.          Part C – Conditions of Service

1.            SCOPE OF ORDERS

1.1         The scope of SIMPEX's obligation to perform Services shall be determined in accordance with SIMPEX’s order confirmation and, insofar as this does not describe the scope of performance, according to the non-binding offer of SIMPEX.

1.2         SIMPEX shall provide services (Dienstleistungen) on its own responsibility; the Customer shall remain responsible for the results intended and achieved by it. SIMPEX shall only be responsible for the results achieved in the case of a contract to produce a work (Werkvertrag).

2.            EXECUTION OF ORDERS

2.1         Orders shall be executed in compliance with the respective current scientific and technological knowledge.

2.2         SIMPEX is entitled to contract third parties for the execution of orders. Obligations of SIMPEX towards the Customer shall remain unaffected. SIMPEX may not refer the Customer to claims against third parties engaged by SIMPEX.

2.3         The Customer is in no circumstances authorized to issue instructions to SIMPEX employees.

3.            SERVICE PERIODS AND DATES

3.1         Periods and dates for Services shall only be binding if this is expressly stipulated in writing in the contract.

3.2         In the case of a contract for work (Werkvertrag), Service periods shall commence on the date of SIMPEX's order confirmation. This shall not apply insofar as details of the order are still clearly in need of coordination or clarification; in this case the period shall not commence before final clarification. The same shall apply to Service dates; these shall be postponed if necessary.

3.3         Periods and dates for Services shall be subject to the ability to deliver and timely self-delivery. SIMPEX shall inform the Customer immediately of any delays in the performance of the Services. The commencement of a binding period shall be subject to the prior clarification of all organizational and technical issues and the timely and proper fulfillment of the Customer’s obligations, in particular the receipt of any agreed down payment.

3.4         In the event of non-compliance with binding periods and dates for Services, the Customer shall only be entitled to claim damages instead of performance due to non-performance or performance not as owed (§ 281 BGB) and the plea of non-performance of the contract (§ 320 BGB) if it has set a reasonable deadline for performance of the Services, together with a declaration that the Customer refuses to accept the performance after expiry of the deadline. After the deadline has expired without success, the claim for performance shall be excluded.

4.            COOPERATION OBLIGATIONS OF THE CUSTOMER

4.1         The Customer is obliged to provide SIMPEX in due time prior to the execution of the order free of charge with all information, materials, equipment, documents, etc. necessary for the execution of the order; if necessary, the Customer shall also be obliged to ship/transport at its own expense.

4.2         In the case of performance of Services at the Customer’s business or construction site, the Customer shall provide all employees and subcontractors of SIMPEX access to all premises, free of charge, during normal business hours in accordance with company access regulations, insofar as this is necessary for the proper performance of the Services.

4.3         If the Customer fails to fulfill its obligations to cooperate or fails to do so in a timely manner and if this results in delays and/or additional expenses, the agreed time frame shall be extended or the agreed remuneration shall be increased accordingly.

4.4         If the Customer is in default of acceptance (Annahmeverzug), fails to cooperate or if Services are delayed for other reasons for which the Customer is responsible, SIMPEX shall be entitled to demand compensation for the damage incurred by it, including any additional expenses. If the Customer is in default of acceptance, the risk shall also pass to the Customer at that time. Further claims remain reserved.

5.            REMUNERATION AND TERMS OF PAYMENT

5.1         SIMPEX’s Services shall be rendered at the financial conditions (fixed price or time and material remuneration) specified in the order confirmation or, alternatively, in the non-binding quotation of SIMPEX. In the case of Services on a time and material basis, the working hours and travel times incurred shall be invoiced at the hourly rates applicable at the time and the materials used shall be invoiced at the prices applicable at the time of performance. If Services agreed on a time basis are cancelled by the Customer 14 days prior to commencement of performance, the previously specified remuneration shall be due in full.

5.2         Estimated prices for Services on a time and material basis which are stated in the quotation and marked as estimates are non-binding.

5.3         Value added tax (“VAT”) shall be shown separately on the invoice at the applicable VAT rate.

5.4         Invoices are payable upon receipt without deduction. The Customer shall be in default with its obligation to pay invoices no later than 14 days after receipt of the relevant invoice.

5.5         Interest on arrears shall be charged at 9 percentage points above the base interest rate p.a. The assertion of further damages shall remain unaffected.

5.6         The Parties agree that §§ 366 para. 2, 367 BGB shall apply regarding the allocation of payments, even if the Customer makes a deviating payment provision (Leistungsbestimmung).

6.           ACCEPTANCE

6.1         Work performances (Werkleistungen) shall be accepted (abnehmen) by the Customer as soon as SIMPEX has indicated and demonstrated conformity with the agreed scope of performance. Acceptance procedures shall be carried out immediately upon notification. Insignificant deviations of the Services shall not entitle the Customer to refuse acceptance.

6.2         At the time of acceptance, a protocol to be signed by both Parties shall be prepared, stating the conformity or non-conformity with the agreed scope of performance.

6.3         The commissioning or productive use of the work to be produced (“Work” – Werk) or parts thereof shall be deemed to be acceptance.

7.            MATERIAL DEFECTS AND DEFECTS OF TITLE OF A WORK

7.1         SIMPEX shall provide the Customer with the Work free of material defects and defects of title.

7.2         If the Work is defective, the following shall apply:

7.2.1    At the sole discretion of SIMPEX, the defect shall be remedied or a new Work shall be produced.

7.2.2    If the subsequent performance fails within a reasonable period of time, the Customer may, at its discretion, reduce the remuneration or, if the value or the suitability of the Work is not insignificantly reduced, revoke the contract, without prejudice to any claims for damages.

7.2.3    The Customer shall give notice to SIMPEX of obvious defects of quality and title, i.e. defects which are present at the time of acceptance and which can be detected without any special effort, at least in text form within 14 days from the time of acceptance; if the Customer fails to do so, it shall lose its claims based on the obvious defects not notified.

7.2.4    Other, i.e. non-obvious, defects may only be notified in text form within the limitation periods pursuant to Section 8 below.

7.3         Specifications in documentation, brochures, project descriptions, etc. do not constitute any guarantee. Any guarantee shall in any case require the express written confirmation by SIMPEX.

7.4         In case of Services to produce a Work, SIMPEX shall be liable for the Customer’s damage caused by delay (Verzugsschaden) if a fixed deadline agreed in the offer is exceeded exclusively for reasons attributable to SIMPEX. The compensation for delay shall be limited to the proven damage of the Customer and to 0.5 % for each completed week of delay, but in total to no more than 5 % of the total remuneration for the part of the work not completed on time. Further liability according to mandatory statutory provisions shall remain unaffected. At the request of SIMPEX, the Customer shall be obliged to declare, within a reasonable period of time, whether it will withdraw from the contract due to the delay in the performance of the Services and/or demand damages in lieu of performance or insist on performance; after unsuccessful expiry of the period mentioned above, the claim for performance shall be excluded.

8.            STATUTE OF LIMITATIONS

            Claims for material defects and defects of title shall become time-barred after one year from the performance of the respective Service or the acceptance of the Work. This shall not apply if longer periods are prescribed by mandatory law, in particular in cases pursuant to § 438 para. 1 No. 2 or § 634 a para. 1 No. 2 BGB, as well as in the case pursuant to Part A section 6.1.1.