General terms and conditions for employment and work contracts of companies in the SIMPEX HYDRAULIK GROUP as a contractor

1.          SCOPE OF THE GENERAL TERMS AND CONDITIONS AND CONCLUSION OF CONTRACT

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

SIMPEX TECHNOLOGIES GmbH……………………

04103 Leipzig, Chopinstraße 5

SIMPEX HYDRAULIK GmbH………………………….

04103 Leipzig, Chopinstraße 5

SIMPEX HYDRAULIK Gera GmbH…………..............

07546 Gera, Siemensstraße 39

SIMPEX HYDRAULIK Brandenburg GmbH………….

14770 Brandenburg (Havel), Friedrich-Franz-Straße 17

SIMPEX HYDRAULIK Neuss GmbH………………….

41468 Neuss, Im Taubental 29

SIMPEX HYDRAULIK München GmbH……..............

82216 Maisach, Lise-Meitner-Straße 3

The respective company of the SIMPEX group with which a contract is concluded shall hereinafter be referred to as the "Contractor".

 

1.2    The GTC shall apply to inquiries, orders and purchase orders for services and works (Dienst- und Werkleistungen) performed by the Contractor. The GTC shall be an integral part of all contracts concluded by the Contractor with its contractual partners (hereinafter referred to as "Client") for services or works, even if they are not separately referred to in the respective contractual documents.

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

1.4    The GTC shall apply only to Clients 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).

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

1.6    The order of the goods or services by the Client shall be deemed to be a binding offer. The Contractor may accept this offer either by sending an order confirmation (in writing or in text form) or by delivering the goods within two weeks of receipt (Zugang) of the offer..

1.7    Individual agreements made with the Client 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 the Contractor shall be authoritative for the existence and content of such agreements.

1.8    Legally relevant declarations and notifications to be made by the Client to the Contractor 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.

1.9    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.

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

2.       SCOPE OF SERVICES

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

2.2    The Contractor shall provide services (Dienstleistungen) on its own responsibility; the Client shall remain responsible for the results desired and achieved by it. The Contractor shall only be responsible for the results achieved in the case of a contract to produce a work (Werkvertrag).

3.       EXECUTION OF ORDERS

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

3.2    The Contractor shall be entitled to contract third parties for the execution of orders. Obligations of the Contractor towards the Client shall remain unaffected. The Contractor may not refer the Client to claims against third parties engaged by the Contractor itself.

3.3    The Contractor shall be exclusively authorized to issue instructions to its employees.

4.       DATES AND DELIVERY TIMES

4.1    Delivery periods and delivery dates shall only be binding if this is expressly agreed in writing.

4.2    In the case of a contract to produce a work, delivery periods shall commence on the date of the Contractor's order confirmation. This shall not apply if details of the order are still in need of coordination or clarification; in this case, the delivery period shall not begin before final clarification. The same shall apply to delivery dates; these shall be postponed if necessary.

4.3    Delivery periods and dates are subject to the ability to deliver and timely delivery by the Contractor’s suppliers. The commencement of a binding delivery period shall be subject to the prior clarification of all organizational and technical issues and the timely and proper fulfillment of the Client's obligations, such as in particular the receipt of any agreed down payment.

4.4    In the event of non-compliance with binding delivery periods and dates for work performances (Werkleistungen), the Client shall only be entitled to claim damages instead of performance due to non-performance or performance not rendered as owed (§ 281 German Civil Code – “BGB”) and the defense of non-performance of the contract (§ 323 BGB) if it has set a reasonable deadline for delivery, together with the declaration that the Client refuses acceptance of performance after expiry of the deadline; after unsuccessful expiry of the deadline, the claim for performance shall be excluded.

5.       RETENTION OF TITLE

5.1    The Contractor shall retain title of the items delivered by it until all claims of the Contractor against the Client arising from the business relationship with the Contractor, 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 the Contractor have been included in a current invoice and the balance has been drawn and acknowledged.

5.2    The Customer shall treat the delivered items, which remain the property of the Contractor, with care.

5.3    The retention of title shall also extend to the products resulting from the processing, mixing, blending or combining of the goods of the Contractor at their full value, in which case the Contractor shall be deemed to be the manufacturer, without any obligations arising for the Contractor as a result. If, in the event of processing, mixing, blending or combining with goods of third parties, their ownership rights remain, the Contractor shall acquire co-ownership of the new item 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 items delivered by the Contractor, the Client shall notify the Contractor immediately at least in text form. The Client shall be liable to the Contractor 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 Client is authorized to sell the delivered goods in the ordinary course of business. The Client 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 the Contractor, who accepts the assignment. The Client shall be authorized to collect these claims even after assignment. The Contractor's authority to collect the claims itself shall remain unaffected; however, the Contractor shall be obliged not to collect the claims as long as the Client duly meets its payment and other obligations. If the Contractor collects assigned claims, it may demand that the Client informs the Contractor 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 Client’s authorization to resell and process the goods subject to retention of title.

5.6    If the Contractor withdraws from the contract, the Contractor 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 Client. For the purpose of taking back the reserved goods, the Client shall grant the Contractor 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 the Contractor against the Customer by more than 10 %, the Contractor shall release securities at its discretion until there is no longer any excess security.

6.       COOPERATION OBLIGATIONS OF THE CUSTOMER

6.1    The Client shall be obliged to provide the Contractor 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 Client shall also be obliged to transport at its own expense.

6.2    In the case of activities at the Client’s business or construction site, the Client shall provide all employees and subcontractors of the Contractor with 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.

6.3    If the Client 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.

6.4    If the Client is in default of acceptance (Annahmeverzug), fails to cooperate or if our delivery is delayed for other reasons for which the Client is responsible, the Contractor shall be entitled to demand compensation for the damage incurred by it, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the item shall also pass to the Client at the point in time at which the Client is in default of acceptance. Further claims remain reserved.

7.       REMUNERATION AND TERMS OF PAYMENT

7.1    The Contractor's services and work performances (Dienst- und Werkleistungen) shall be rendered at the financial conditions (fixed price or time and material remuneration) specified in the order confirmation or, alternatively, in the Contractor's non-binding quotation. In the case of services and work performances 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 and work performances agreed on a time basis are cancelled by the Client 14 days prior to commencement, the previously quantified fee shall be due in full.

7.2   Estimated prices for services and work performances on a time and material basis which are stated in the quotation and marked as estimates are non-binding.

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

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

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

7.6    The Client may only offset counterclaims if its counterclaims have been legally established, are undisputed or have been recognized by the Contractor. 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.

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

8.       ACCEPTANCE

8.1    Work performances (Werkleistungen) shall be accepted (abnehmen) by the Client as soon as the Contractor has indicated and demonstrated conformity with the agreed scope of performance. Acceptance procedures shall be carried out immediately upon notification. Insignificant deviations shall not entitle the Client to refuse acceptance. The obligation to remedy defects within the scope of liability for defects of title and quality shall remain unaffected.

8.2    At the time of acceptance, a protocol to be signed by both contracting parties shall be prepared confirming the conformity with the agreed scope of performance.

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

9.       MATERIAL DEFECTS AND DEFECTS OF TITLE IN PERFORMANCES UNDER A CONTRACT TO PRODUCE A WORK

9.1    The Contractor shall provide the Client with the Work free of material defects and defects of title.

9.2    If the Work is defective, the Contractor shall be liable as follows:

9.2.1       At the Contractor's sole discretion, the defect shall be remedied, or a new Work shall be produced.

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

9.2.3       The Client shall immediately notify the Contractor in writing of any material defects and defects of title.

9.3    Claims for material defects and defects of title shall become time-barred 12 months after the performance of the respective service or acceptance of the Work. This shall not apply insofar as longer periods are prescribed by law pursuant to § 438 para. 1 no. 2, § 479 para. 1 or § 634 a para. 1 no. 2 BGB.

9.4    Specifications in documentation, brochures, project descriptions, etc. do not constitute any warranty or promise of warranty. Any warranty or promise of warranty shall in any case require the express written confirmation by the Contractor.

9.5    The Contractor shall be liable for the Client’s damage caused by delay (Verzugsschaden) if a fixed deadline agreed in the offer is exceeded exclusively for reasons attributable to the Contractor. The compensation for delay shall be limited to the proven damage of the Client 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 the Contractor, the Client shall be obliged to declare, within a reasonable period of time, whether it will withdraw from the contract due to the delay in the work performance and/or demand damages in lieu of performance or insist on performance; after unsuccessful expiry of the period of time, the claim for performance shall be excluded.

10.       LIABILITY

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

10.1.1       In the event of intent or gross negligence, the Contractor shall be liable without limitation.

10.1.2       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, the Contractor'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.

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

10.2       The aforementioned 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 Client’s right to withdraw from the contract in the event of a breach of duty for which the Contractor is responsible shall remain unaffected.

10.3       Insofar as the Contractor's liability is excluded or limited in paragraph 1 above, this shall also apply to the personal liability of its employees, workers, representatives and vicarious agents.

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

11.       EXPORT CONTROL / EMBARGO REGULATIONS

11.1    The Client 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 Client undertakes to refrain from the following:

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

11.1.2       The delivery of the goods directly or indirectly delivered by the Contractor 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.

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

11.2    Prior to the (re-)export of the goods goods directly or indirectly delivered by the Contractor, the Client 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 Client shall not be entitled to return goods or to claim damages if an export permit is refused by the authorities. If the Client has knowledge of the (intended) end use of delivered goods for weapons, it is prohibited to transfer the goods of the Contractor.

11.3    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.

11.4    The Client shall inform the Contractor without delay and without being requested to do so, at least in text form, if the Client breaches the obligations pursuant to sections 11.1.1. through and including 11.1.3 or becomes aware of a suspected breach of these obligations.

11.5    If the Client violates the obligations pursuant to sections 11.1.1. through and including 11.1.3, the Contractor shall be entitled to withdraw from the contract. The assertion of any further claims, in particular claims for damages, shall remain unaffected.

11.6    The Contractor 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, the Contractor 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 Client undertakes to support the Contractor in obtaining any required permit and to provide the necessary documents and information within a reasonable period of time.

11.7    In the event of delays due to applicable requirements under foreign trade law (in particular approval requirements), delivery periods shall be extended and delivery 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.

11.8    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.

11.9    The procurement of any required import permit shall be the responsibility of the Client.

12.    FORCE MAJEURE

12.1     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.

12.2     This includes in particular:

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

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

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

12.2.4    unforeseeable governmental intervention, regulation, or other decision or action that qualifies as unforeseeable and independent of parties;

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

12.2.6    terrorist attacks, explosions, breakdowns in traffic; and

12.2.7    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.

12.3     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.

12.4     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 the circumstances as a whole.

13.       DATA PROTECTION

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

14.       INVENTIONS / INTELLECTUAL PROPERTY

14.1     Inventions made by employees of the Contractor during the performance of services, as well as industrial property rights granted for such inventions, shall belong to the Contractor. Inventions made during the performance of services by employees of the Client, as well as industrial property rights granted for such inventions, shall belong to the Client.

14.2     The granting of licenses to inventions within the meaning of paragraphs 1 and 2 and to industrial property rights granted therefor shall require a special written agreement between the parties.

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

14.4     In the event of a breach of the obligation pursuant paragraph 3 above, the Client undertakes to pay a reasonable contractual penalty in the amount of up to 5 % of the net order value, which shall be determined by the Contractor at its reasonable discretion and, if necessary, shall be subject to judicial review of reasonableness and adjustment.

15.       SURRENDER OF DOCUMENTS AND OBJECTS, RIGHT OF RETENTION

15.1     After completion of an order, the Client may demand from the Contractor the surrender of the documents and objects provided to it. The Contractor 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.

1.2     The Contractor may make and keep copies or transcripts of documents that it returns to the Client.

16.       SOLVENCY OF THE CLIENT

16.1     The Contractor regularly checks the creditworthiness of existing clients 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 Client 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 Creditreform can be found at: www.boniversum.de/EU-DSGVO or at www.creditreform.de/EU-DSGVO or www.crifbuergel.de/de/datenschutz.

16.2     If it becomes apparent after the conclusion of the contract that the Contractor's claim for payment of the remuneration is at risk due to the Client’s lack of solvency, the Contractor 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 Client may avert the withdrawal by providing security. In the case of contracts for the manufacture of non-fungible items (custom-made products), the Contractor may withdraw immediately; the statutory provisions on the exemption from setting a deadline shall remain unaffected.

17.       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 Client refrains from the repair in view of the cost estimate, the Client shall remunerate the damage assessment or the preparation of the cost estimate. The payment obligation also applies if the Client instructs the Contractor to dispose of items provided for repair or to return them to the Client unrepaired.

18.       GENERAL PROVISIONS

18.1     Contracts shall be concluded in writing. Ancillary agreements shall only be effective if they are confirmed in writing by the Contractor.

18.2     The transfer of rights and obligations under agreements between the parties by the Client to third parties shall require the Contractor's prior written consent.

18.3     Any disputes arising out of an agreement between the parties shall be subject to the exclusive jurisdiction of the courts at the Contractor's registered office.

18.4     The contractual relations shall be governed by German law, excluding its conflict-of-laws-principles and the Convention on Contracts for the International Sale of Goods (CISG).