General Terms and Conditions

1.Scope

(1) These general terms and conditions apply to all contracts between Zima Systems GmbH and its customers for deliveries and services, unless something else has been expressly agreed in writing.

(2) These general terms and conditions apply only to merchants, if the contract belongs to the operation of the business, and to legal entities under public law and public special funds within the meaning of § 310 (1) sentence 1 BGB.

(3) The general terms and conditions of Zima Systems GmbH apply exclusively. Contrary or deviating conditions of the customer are only binding if and to the extent that Zima Systems GmbH expressly agrees to them in writing. The general terms and conditions of Zima Systems GmbH also apply if Zima Systems GmbH executes the order without reservation despite knowledge of contrary or deviating conditions of the customer. Deviating agreements only apply to a specific contract and not to future contracts, unless something else has been expressly agreed in writing.

(4) These general terms and conditions also apply to all future contracts between Zima Systems GmbH and its customers for deliveries and services.

2.Scope of Orders

(1) The deliveries and services of Zima Systems GmbH are provided in the scope defined in the respective non-binding offer available until contract conclusion and/or in accordance with the applicable legal provisions, unless something else is specified in these general terms and conditions. Zima Systems GmbH performs deliveries and services on its own responsibility. The customer remains solely responsible for the results they seek and achieve.

(2) Zima Systems GmbH and the customer are each entitled to request changes to the agreed delivery and scope of services in writing. Upon receipt of a change request, Zima Systems GmbH or the customer will review the feasibility of this change. The result of this review shall be communicated in writing to the other contractual party without delay. Zima Systems GmbH is entitled to charge the customer for its costs incurred, where the customer's change request requires extensive and detailed review. The necessary contractual adjustments for such review or for changes to the agreed delivery and scope of services will be established in an additional agreement.

3.Execution of Orders and Delivery Time

(1) Orders shall be executed taking into account the current state of science and technology.

(2) Only Zima Systems GmbH is authorized to issue instructions to its employees.

(3) Zima Systems GmbH is entitled to use the services of third parties to execute orders. However, Zima Systems GmbH remains directly and immediately obligated to the customer.

(4) For deliveries and services, delivery periods and dates begin with the date of order confirmation by Zima Systems GmbH, but not before complete clarification of all order details. All delivery periods and dates are subject to availability and timely self-supply.

(5) For compliance with delivery periods and dates, the time of availability at the premises of Zima Systems GmbH is decisive, unless otherwise agreed.

(6) In cases of force majeure, the contractual obligations of both parties are suspended and the dates and deadlines for fulfilling contractual obligations are correspondingly extended; force majeure also includes labor disputes in own and foreign businesses, transport delays, machine breakdown, government measures and other circumstances not attributable to either party. The force majeure event must be notified to the other contractual party without delay. No later than three months after receipt of this notice, both parties are entitled to withdraw from the contract.

(7) In case of non-compliance with delivery periods and dates for deliveries and services, the customer has the right to claim damages in lieu of performance (§ 281 BGB) and the defense of unperformed contract (§ 323 BGB) only after Zima Systems GmbH has been set a reasonable deadline for delivery, which – deviating from §§ 281, 323 BGB – is combined with the declaration that the customer will reject acceptance of the service after the deadline has elapsed; after the unsuccessful expiry of the deadline, the claim for fulfillment is excluded.

4.Transfer of Risk in Shipping

If the goods are shipped to the customer upon request, the risk of accidental loss or deterioration of the goods passes to the customer with dispatch, at the latest with leaving the factory/warehouse. This applies regardless of whether shipping takes place from the place of performance or who bears the freight costs.

5.Retention of Title

(1) We retain ownership of the delivered item until full payment of all claims from the supply agreement. This also applies to all future deliveries, even if we do not always explicitly refer to this. We are entitled to take back the purchase item if the customer behaves in violation of the contract.

(2) The customer is obliged to carefully handle the purchase item as long as ownership has not yet transferred to him. As long as ownership has not yet transferred, the customer must notify us in writing without delay if the delivery is seized or subject to third-party interventions. To the extent that the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer is liable for our resulting shortfall.

(3) The customer is entitled to resell the subject to retention of title goods in normal business. The customer hereby assigns to us in advance the claims from the resale of the subject to retention of title goods in the amount of the agreed invoice end amount (including VAT). This assignment applies regardless of whether the purchase item has been resold without or after processing. The customer remains authorized to collect the claims even after the assignment. Our right to collect the claims ourselves remains unaffected. However, we will not collect the claims as long as the customer continues to meet his payment obligations from the realized proceeds, is not in payment default, and in particular no application for opening insolvency proceedings has been filed or payment has been suspended.

(4) The processing, modification or alteration of the purchase item by the customer is always done in our name and on our behalf. In this case, the expectancy right of the customer continues on the altered item. If the purchase item is processed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the objective value of our purchase item to the other processed items at the time of processing. The same applies to the case of mixture. If the mixture occurs in such a way that the customer's item is to be regarded as the principal item, it is agreed that the customer transfers us pro rata co-ownership and safeguards the resulting sole or co-ownership for us. To secure our claims against the customer, the customer also assigns us such claims that arise to the customer through the connection of the subject to retention of title goods with a real property against a third party; we accept this assignment in advance.

(5) We undertake to release the securities owed to us at the request of the customer to the extent that their value exceeds the claims to be secured by more than 20 %.

6.Cooperation Obligations of the Customer

(1) The customer provides Zima Systems GmbH free of charge, in good time before execution of the order, all information, materials, devices, documents, processes etc. necessary for the execution of the order and makes them available to Zima Systems GmbH at its expense if required.

(2) If Zima Systems GmbH is active at the customer's premises, the customer must provide Zima Systems GmbH's employees or third parties commissioned by it, within the usual operating hours and within the facility's access regulations, free of charge access to all premises, installations (hardware, software, networks, etc.) and other working tools necessary for the proper provision of deliveries and services by Zima Systems GmbH. If necessary, the customer must also ensure the free of charge provision of functional workstations for Zima Systems GmbH's employees or commissioned third parties.

(3) The customer will otherwise cooperate as required in the execution of the order.

(4) If the customer does not fulfill the obligations under paragraphs 1-3 in due time and this leads to delays and/or additional costs, the agreed time frame and/or the agreed remuneration will be extended or increased accordingly.

7.Remuneration and Payment Terms

(1) Deliveries and services are calculated at the price and payment terms stated in the offer or based on the agreed time and material basis after completion of the deliveries and services and/or their acceptance, unless otherwise agreed in the offer regarding invoicing and payment method.

(2) Value added tax is shown separately at the currently applicable VAT rate in the invoice.

(3) Invoices are payable upon receipt without deduction. The customer is in default with this payment obligation – unless otherwise agreed – no later than 14 days after invoicing.

(4) Default interest is calculated at 8 % p.a. above the base interest rate. The claim for further damages is not excluded.

(5) Multiple customers are jointly and severally liable.

(6) The customer may only offset if their counterclaims have been established by final judgment, are undisputed or have been acknowledged by Zima Systems GmbH.

8.Acceptance

(1) Deliveries and services must be accepted by the customer as soon as Zima Systems GmbH has demonstrated compliance with the agreed specifications. Minor deviations do not entitle the customer to refuse acceptance. The obligation to remedy defects within the framework of liability for legal and material defects remains unaffected.

(2) A protocol to be signed by both contractual parties must be drawn up upon acceptance, confirming compliance with the agreed specifications.

(3) Commissioning and/or use of the deliveries and services or parts thereof is deemed acceptance.

9.Warranty, Defect Notice and Recourse/Manufacturer Recourse

(1) Warranty rights of the customer presuppose that they have properly fulfilled their inspection and notification obligations under § 377 HGB.

(2) Defect claims prescribe within 12 months after delivery of our goods to our customer. Prior return of the goods requires our consent. In the sale of used goods, the warranty period can be completely excluded.

(3) Should the delivered goods exhibit a defect that was already present at the time of transfer of risk despite all care exercised, we will, subject to timely defect notice, either remedy the defect or supply replacement goods at our choice. The customer must always be given an opportunity to cure within a reasonable deadline. Recourse claims remain unrestricted by the above provision.

(4) If cure fails, the customer may – without prejudice to any damage claims – withdraw from the contract or reduce the remuneration.

(5) Defect claims do not exist for only minor deviations from the agreed characteristics, for only minor impairment of usability, for natural wear or deterioration such as damages that arise after transfer of risk due to improper or negligent handling, excessive stress, unsuitable operating materials or due to special external influences that are not assumed under the contract. If improper repair work or changes are made by the customer or third parties, there are no defect claims for these and the resulting consequences.

(6) Claims of the customer for expenses required for the purpose of cure, in particular transport, travel, labor and material costs, are excluded, provided the costs increase because the goods we delivered were subsequently moved to a location other than the customer's place of business, unless the move corresponds to their proper use.

(7) Recourse claims of the customer against us exist only to the extent that the customer has not made agreements with their customer going beyond the statutorily mandatory defect claims. Furthermore, the scope of the customer's recourse claim against the supplier corresponds to paragraph 6.

10.Liability

(1) Claims for damages and reimbursement of expenses of the customer (hereinafter: damage claims) regardless of the legal basis, in particular due to breach of obligations from the contractual relationship and from tort, such as lost profits and other property damage of the contractual partner, are excluded.

(2) This does not apply to the extent that mandatory liability exists, e.g., under the Product Liability Act, in cases of intent, gross negligence, due to infringement of life, body or health and due to infringement of essential contractual obligations. However, the damage claim for the infringement of essential contractual obligations is limited to the contractually typical, foreseeable damage and prescribes with the expiry of the warranty period for material and legal defects according to item 7 paragraph 3, unless intent or gross negligence is present, or liability is for infringement of life, body or health. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.

(3) Zima Systems GmbH is liable for delay damage to the customer if an agreed fixed end date in the offer is exceeded exclusively for reasons lying with Zima Systems GmbH. The delay compensation is based on the proven damage to the customer and is limited in amount to 0.5 % per completed week of delay, but in total to no more than 5 % of the total remuneration of the not completed on time part of the service. The provision of paragraph 2 sentence 1 of this item 10 remains unaffected. The customer is obliged to declare at Zima Systems GmbH's request within a reasonable period whether they wish to withdraw from the contract due to the delay of deliveries and services and/or claim damages in lieu of delivery and performance or insist on delivery and performance; after the unsuccessful expiry of the deadline, the claim for fulfillment is excluded.

(4) To the extent that Zima Systems GmbH's liability is limited, this also applies to Zima Systems GmbH's employees and third parties commissioned by Zima Systems GmbH.

(5) The customer is obliged to notify Zima Systems GmbH in writing of damages for which Zima Systems GmbH is liable without delay and to give Zima Systems GmbH the opportunity to investigate the damage and its causes.

11.Confidentiality

(1) The contractual partners are obliged to not use, exploit or make accessible to third parties the economic, technical and other information and knowledge made accessible or otherwise made known by the other contractual partner during the preparation and execution of orders beyond the order purpose, without the prior written consent of the other contractual partner.

(2) The obligation under paragraph 1 does not apply to information and knowledge that

• were already known to Zima Systems GmbH before the order was placed,
• lawfully received by Zima Systems GmbH from third parties,
• were generally known at the time of ordering,
• become generally known subsequently without violating the obligation under paragraph 1.

(3) The obligation under paragraph 1 applies to both contractual partners for an additional two years after the end of the order.

(4) The customer acknowledges the need for scientific lectures and publications by Zima Systems GmbH and will not unreasonably refuse consent required for this pursuant to paragraph 1.

12.Data Protection

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

13.Inventions

(1) Inventions made jointly by employees of Zima Systems GmbH and the customer during the execution of an order, as well as patents granted therefor, belong to both contractual partners jointly.

(2) Inventions made during the execution of an order by employees of Zima Systems GmbH, as well as patents granted therefor, belong to Zima Systems GmbH. Inventions made during the execution of an order by employees of the customer, as well as patents granted therefor, belong to the customer.

(3) The granting of licenses for inventions according to paragraphs 1 and 2 and for patents granted therefor requires a separate written agreement.

14.Work Results

(1) The transfer of ownership and usage rights to work results of any kind achieved within the scope of the agreed service scope in the offer and communicated to the customer, such as documentation, reports, planning documents, evaluations, drawings, program materials, etc., requires a special written agreement. However, Zima Systems GmbH always retains a free and non-exclusive right of use for these work results.

(2) Zima Systems GmbH is not responsible for whether technical documents provided to it by the customer or on their behalf violate existing copyrights, industrial property rights or other third-party rights. The customer is solely liable if the execution of their order violates third-party rights. The customer must indemnify Zima Systems GmbH from all third-party claims due to such infringement upon first request. § 10 remains unaffected.

15.Termination

(1) Contracts may be terminated at any time with a notice period of 30 days to the end of the month.

(2) Termination of contracts for important cause is possible at any time.

(3) In the event of termination according to paragraphs 1 and 2, the customer must pay the agreed remuneration minus the pro-rata remuneration for the agreed scope of services saved by the cancellation. In addition, Zima Systems GmbH has a claim to remuneration for services and expenses that arose in connection with the cancellation – also in relation to Zima Systems GmbH's relations with third parties.

(4) If the termination is due to reasons attributable to Zima Systems GmbH, Zima Systems GmbH is only entitled to remuneration for services rendered up to that point in time, insofar as they are usable for the customer.

(5) Terminations must always be in writing.

16.Return of Documents and Objects, Right of Retention

(1) The customer may request Zima Systems GmbH after the end of an order to return documents and objects provided to it. Zima Systems GmbH may refuse the return until it has been satisfied for its claims from the contract, unless the withholding of individual documents and objects based on the circumstances, in particular due to the relatively minor amount of the owed sums, would contradict good faith.

(2) Zima Systems GmbH may make and retain copies or duplicates of documents it returns to the customer.

17.General Provisions

(1) Contracts are concluded in writing. Side agreements are only effective if confirmed in writing by Zima Systems GmbH.

(2) The transfer of rights and obligations from the contracts by the customer to third parties requires the prior written consent of Zima Systems GmbH.

(3) Place of jurisdiction is Konstanz (BW).

(4) Only the law of the Federal Republic of Germany applies to all contractual relationships.

1.General

We order exclusively based on our AEB. Other terms do not become part of the contract, even if we do not expressly object. If we accept the delivery or service without express objection, this in no case constitutes recognition or approval of the other terms.

2.Written Form

Only orders issued in writing are binding for us. Oral agreements are only binding after written confirmation by us. The same applies to changes and additions to orders.

3.Delivery Time Liability

3.1  The agreed delivery deadlines are binding.

3.2  The supplier/service provider is obligated to compensate us for all delay damages unless they prove that they are not responsible. Acceptance of a late delivery or service does not constitute a waiver of damage claims. The reservation of a contractual penalty earned is timely if we deduct the earned amount at the next due invoice.

3.3  If the agreed dates are not met due to a circumstance attributable to the supplier, we are entitled, after the expiry of a reasonable deadline set by us, without prejudice to further statutory claims, to demand damages in lieu of performance or to obtain replacement from a third party; the right of withdrawal remains unaffected.

4.Transport Insurance

The supplier/service provider must ensure adequate insurance for the transport of goods and must provide proof to us upon request.

5.Payment – Payment Method

5.1  The payment period begins with the date of receipt of the invoice at the agreed invoice address.

5.2  We reserve the right to choose the payment method.

5.3  If payment is made by wire transfer or check, the payment obligation is fulfilled in due time if the wire transfer instruction has been forwarded to our bank or the check has been sent to the supplier.

5.4  All risks of sending the check are borne by the supplier. In addition to the risk of theft and unauthorized payment, the supplier assumes all additional damages arising therefrom, including bank fees for check blocks.

6.Defect Liability

6.1  Defect liability is governed by the statutory provisions, unless otherwise regulated below.

6.2  The supplier warrants that all items delivered by them and all services provided by them at the time of contract conclusion conform to the latest state of technology, the applicable legal provisions and the regulations and guidelines of authorities, professional associations and professional associations, and that upcoming changes are not known to them. This applies in particular with regard to environmental protection regulations applicable in the EU, the Federal Republic of Germany and at the supplier's location. The supplier will inform us without delay of any upcoming changes known to them.

6.3  If deviations from these regulations are necessary in individual cases, the supplier must obtain our written consent. The remaining purchase or work contract obligations, including any guarantees for the quality of the item or work, are not affected by this consent.

6.4  If the supplier has concerns about the desired manner of execution, they must notify us immediately in writing.

6.5  We will notify the supplier without delay in writing as soon as delivery or service defects are determined in the course of normal business operations.

6.6.1  The statute of limitations for any defects is 36 months, calculated from transfer of risk. During the limitation period, the supplier must, at our choice, promptly and free of charge including all incidental costs eliminate reported defects of the delivery or service through repair or by exchanging the defective parts. Our right to demand new delivery of defect-free goods or a defect-free work is reserved. Defect elimination and new delivery or renewal must be carried out promptly. They restart the limitation period.

6.6.2  For any delivery whose defectiveness we discover after the item has been delivered to us, we charge a flat rate for transport, storage and administrative costs of Euro 250.00 plus applicable VAT, provided the order value of the respective delivery is at least Euro 2,500.00 (net). Proof of higher damages is permitted.

6.6.3  All further claims due to defects, in particular the right of withdrawal and our claim for damages, including damages in lieu of performance, remain unaffected. If the supplier does not fulfill their obligation to cure within a reasonable deadline set by us, we may take the necessary measures at their cost and risk ourselves or have them carried out by third parties. In urgent cases, we may, after coordination with the supplier, carry out the cure in the form of defect elimination ourselves or have it carried out by a third party. Minor defects may be eliminated by us in the interest of uninterrupted production without prior coordination and the necessary expenses charged to the supplier, without affecting the statutory obligations of the supplier. The same applies if unusually high damages are imminent.

7.Supplier Recourse

If we are held liable by our customer in the context of a consumer sale and this liability is based on a defect in the item delivered by the supplier, our recourse claims do not prescribe until after a period of five years, calculated from delivery of the item by the supplier to us.

8.Guarantees – Representations

To the extent that the supplier has assumed a guarantee for the quality of an item or work in the form of a representation, they are liable for damages in accordance with statutory provisions, including damages in lieu of performance. The limitation period is three years, calculated from discovery of the lack or non-existence of the respective quality.

9.Product Liability – Recourse

9.1  To the extent we are held liable by third parties under product liability or other statutory provisions, the supplier is obligated to indemnify us upon first request from all these claims, insofar as they are directly liable in the external relationship to the third party. To the extent we conduct a product recall as a consequence of such an event, we will charge the supplier for the costs incurred; they are obligated to indemnify us upon first request, insofar as they are liable according to §§ 830, 840, 426 BGB. This also applies in particular to any product recalls under the Product Safety Act.

9.2  The supplier is obligated to maintain a product liability insurance with a minimum coverage of 1 million Euro per claim throughout the duration of the contract; we are entitled to request a corresponding coverage confirmation from the supplier's insurer.

10.Pharmaceutical Production

10.1  To the extent that the products ordered by us serve the production of medicines and/or health care and/or food products, the "Requirements for the Quality, Packaging and Transport of Active and Excipient Substances for the Pharmaceutical Industry" developed by the World Health Organization must be met in their respective current version.

10.2  In this case, in particular, changes in production that may have an influence on quality must be reported to us immediately in writing.

10.3  Each delivery should preferably come from a single batch, thus representing a homogeneous unit. The batch number must be durably and clearly marked on each container and on each delivery note. If the delivery consists of several batches of the same product, all batch numbers must be noted on the containers and on the delivery note.

10.4  In all cases of continuous manufacturing processes in which batch-wise recording is not possible, the supplier must ensure specification-compliant quality. Each container must be durably and clearly labeled with the product name, net weight, tare, batch number and any hazard and storage instructions.

11.Right of Termination Due to Insufficient Performance Capacity

If, after conclusion of the contract, it becomes evident that our delivery claim is endangered due to the supplier's insufficient performance capacity (e.g., economic deterioration, actual performance obstacles, etc.), we are entitled to withdraw from the contract.

12.Applicable Law

The contract is governed by German law. The provisions of the Vienna UN Convention on International Sales Contracts shall not apply.

13.Place of Performance

Unless otherwise agreed in individual cases, the place of performance for the delivery is our respective location that placed the order or concluded the contract. The place of performance for any payments to us is D-78259 Mühlhausen.

14.Place of Jurisdiction

The court responsible for D-78259 Mühlhausen has jurisdiction for all disputes in business with merchants. This also applies to bill and check lawsuits.

16.Direct Marketing Measures

The supplier is obligated to refrain from direct marketing measures. All agreements regarding advertising measures concerning our products require written form.

15.Severability Clause

If individual provisions of these AEB are completely or partially invalid, this does not affect the validity of the remaining regulations. The parties undertake to replace an invalid regulation with one that is effective and comes closest to the economic purpose of the invalid regulation. This does not apply in case of invalidity due to violation of section 2 of book 2 of the BGB titled "Formation of legal-obligatory contracts through general terms and conditions." In this case, the statutory regulation applies, unless supplementary contract interpretation is appropriate for filling the gap.