1. General

1.1 These General Terms and Conditions of Delivery (“GTCD”) apply to all business relationships between rosconi GmbH and its customers (“buyers”). The GTCD only apply if the buyer is an entre­preneur (Section 14 of the German Civil Code (BGB)), a legal person under public law, or a special fund under public law.

1.2 These GTCD particularly apply to contracts for the sale and/or delivery of movable property (“goods”), regardless of whether rosconi GmbH manufactures the goods itself or purchases them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, these GTCD, in the version valid at the time of the buyer’s order or at minimum in the version last communicated to them in writing, shall apply as a framework agreement for similar future contracts without rosconi GmbH being re­quired to refer to them again.

1.3 These GTCD apply exclusively. Any of the buyer’s deviating, conflicting, or supplementary general terms and conditions of business shall only become part of the contract if they are explicitly recognized as such in writing by rosconi GmbH. This requirement of approval shall apply in all ca­ses, including those in which rosconi GmbH carries out delivery to the buyer unconditionally and in full knowledge of their general terms and conditions of business.

1.4 If an offer made by rosconi GmbH refers to the buyer’s documents, this shall not imply any agreement with the buyer’s general terms and conditions of business.

1.5 Individual agreements concluded with the buyer in isolated cases shall always take prece­dence over these GTCD. The content of such agreements shall be set forth in a written contract or an order confirmation issued by rosconi GmbH.

1.6 Legally relevant declarations and notifications of the buyer (e.g. notifications of defects, setting of deadlines) in relation to the contract shall be made in writing or in text form (e.g. letter, email, or fax).

2. Conclusion of contract

2.1 Offers made by rosconi GmbH are subject to confirmation and non-binding.

2.2 An order for goods made by the buyer is considered a binding offer of contract. Unless other­wise agreed, rosconi GmbH may accept this offer of contract within 10 working days following re­ceipt by rosconi GmbH. This acceptance may be communicated to the buyer verbally, in writing, or in text form (e.g. by order confirmation) or implied by delivery of the goods.

3. Delivery, place of performance, transfer of risk, delivery times, acceptance, default of acceptance

3.1 Delivery of handover of the goods shall be ex works or ex warehouse of rosconi GmbH, which shall also be the place of performance for the delivery and any subsequent performance.

3.2 The goods can be shipped to another destination at the request and expense of the buyer (sales shipment). Unless otherwise agreed, rosconi GmbH is entitled to determine the type of ship­ping method used (in particular transport company, shipping route, packaging). In the event of a sales shipment, rosconi GmbH may determine the carrier, the shipping route, the type of shipping, and the means of transportation and protection.

3.3 Unless otherwise agreed, the goods shall be handed over or delivered unpackaged ex works or ex warehouse.

3.4 The risk of accidental loss or accidental deterioration of the goods shall pass to the buyer upon handover of the goods at the latest.

3.5 In the case of a sales shipment, however, the risk of accidental loss or accidental deterioration of the goods, as well as the risk of delay, shall be transferred to the buyer when the goods are han­ded over or delivered to the carrier or any other person or organization entrusted with their carriage. Any agreed acceptance procedure shall govern the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply to any agreed acceptance procedure. Deli­very or acceptance shall be deemed to have taken place if the buyer is in default of acceptance.

3.6 If the buyer is in default of acceptance, fails to cooperate, or delays delivery for other reasons for which the buyer is responsible, rosconi GmbH shall be entitled to demand compensation for the resulting damage, including additional costs (e.g. storage costs).

3.7 All unforeseeable and extraordinary events, in particular strikes, scrapping of important work­pieces, interruptions to operations and similar events for which rosconi GmbH or its suppliers are not responsible exempt rosconi GmbH from performing its contractually agreed delivery obligations for the period of their duration.

4. Delivery period and delay in delivery

4.1 The delivery periods stated in offers of contract issued b rosconi GmbH are non-binding un­less they have been expressly agreed as binding.

4.2 In the event that rosconi GmbH and the buyer have agreed a binding delivery period, this agreed delivery period shall only begin once the buyer has submitted all the information/documents required for proper processing of the order. In this case, the agreed delivery period shall be exten­ded by the period between conclusion of contract and the actual start of the delivery period (= submission of required documents).

4.3 In the event of an agreement by the buyer to call off the goods (= blanket orders (sections 5.1 and 5.2 of the GTCD)), the agreed binding delivery periods shall begin with the call-off of the goods by the buyer. Even in the case of a blanket order for the goods, these delivery periods shall only begin once the buyer has submitted all the information/documents required for proper processing of the order. In this case, the agreed delivery periods shall be extended by the period between conclusion of contract and the actual start of the delivery time (= call-off of goods and submission of required documents).

4.4 If a binding delivery period is agreed for part of the delivery (= partial call-off of goods), the deadlines for each partial delivery shall be determined separately. Each delivery period begins with call-off of the partial delivery. Even in the case of a partial call-off of the goods, these delivery periods shall only begin once the buyer has submitted all the information/documents required for proper processing of the order. In this case, too, the delivery periods are extended in accordance with the provisions set out in sections 4.2 and 4.3 of these GTCD.

4.5 The delivery periods shall be deemed to have been met when the goods have been handed over to the buyer or, in the case of a sales shipment, to the carrier.

4.6 If rosconi GmbH is unable to meet binding delivery periods for reasons for which it is not res­ponsible (non-availability of goods and services), rosconi GmbH shall promptly notify the buyer of this and at the same time provide the buyer with an expected new delivery period. If the goods or services are also not available within the new delivery period, rosconi GmbH shall be entitled to withdraw from the contract in whole or in part; rosconi GmbH shall promptly reimburse the buyer for any consideration already paid. In particular, non-availability of the goods or services shall be deemed to be the case if a supplier is unable to deliver to us in good time, a congruent hedging transaction has been concluded, neither rosconi GmbH nor the supplier is at fault, and rosconi GmbH, in this specific case, is not obliged to procure the goods or services.

4.7 The occurrence of a delay in delivery on the part of rosconi GmbH shall be determined in ac­cordance with statutory provisions. In all cases, the buyer is obliged to issue a reminder.

4.8 Goods announced as ready for shipment or pick-up on an agreed delivery date by rosconi GmbH must be picked up promptly by the buyer or released for shipment. In the event that the buyer fails to do this, rosconi GmbH is entitled to demand lump-sum compensation of 2% of the total price at the start of each week, commencing with the delivery period or – in the absence of a delivery period – with notification that the goods are ready to ship. This shall not affect rosconi GmbH’s to right to provide evidence of a higher amount of damages, nor shall it affect its legal claims (in particular reimbursement for extra costs, appropriate compensation, termination). The lump sum shall be set off against further monetary claims. The buyer is entitled to provide evidence that rosconi GmbH has incurred no damage at all, or considerably less damage than the lump sum stated above.

5. Blanket orders, right of withdrawal, lump-sum claim for damages

5.1 If the buyer and rosconi GmbH have agreed on a binding date for call-off of the goods in cases referred to in sections 4.3 and 4.4 of these GTCD and if, following issuance of a reminder from rosconi GmbH, the buyer does not call off the goods or services within one week following receipt of this reminder, rosconi GmbH shall be entitled to withdraw from this contract.

5.2 The following shall apply if the buyer and rosconi GmbH have not agreed on a binding call-off date in cases referred to in sections 4.3 and 4.4 of these GTCD: If the buyer has not declared their intention to call off goods within three months following conclusion of contract and a dead­line for the buyer to declare their intention to call off the goods set by rosconi GmbH following these three months after conclusion of contract has expired without the goods being called off, rosconi GmbH shall be entitled to withdraw from this contract.

5.3 If rosconi GmbH withdraws from this contract in accordance with sections 5.1 or 5.2 of these GTCD, rosconi GmbH may demand lump-sum compensation from the buyer, amounting to 5% of the agreed total price. The right to claim further damages shall remain unaffected by this. rosconi GmbH reserves the right to prove that the damage incurred is higher. The buyer is en­titled to provide evidence that rosconi GmbH has incurred no damage or considerably less da­mage.

6. Prices and conditions of payment

6.1 Unless otherwise agreed in specific instances, our prices valid at the time of conclusion of contract shall apply, i.e. ex works or ex warehouse, plus statutory value added tax.

6.2 The following provisions shall apply, unless otherwise agreed: Up to an order value of €1,700.00 (net) per order, rosconi GmbH shall deliver the goods packaging paid ex works, with the goods to be picked up by the buyer. For orders valued at an amount of €1,700.01 (net) and above and where a sales shipment has been agreed, rosconi GmbH shall deliver the goods to inside the first lockable door of the first floor of the buyer’s delivery address on a road accessib­le to trucks within the mainland of the Federal Republic of Germany. Deliveries abroad shall be made to the German border.

6.3 In the absence of another provision regarding unloading in the event of a sales shipment, the following provisions shall apply: Unloading of the goods shall be carried out by rosconi GmbH. In the event that the goods cannot be unloaded on the notified delivery date for reasons for which rosconi GmbH is not responsible, rosconi GmbH is entitled to choose whether to store the goods or return them, both at the buyer’s expense. The buyer shall bear any costs for delive­ry-related waiting times for which rosconi GmbH is not responsible. The buyer shall ensure un­obstructed access to the unloading point on the notified delivery date. Additional costs arising from deliveries in pedestrian zones or other obstructions prior to the point of receipt for which rosconi GmbH is not responsible will be invoiced separately.

6.4 In the event of a sales shipment in accordance with section 3.2 of the GTCD, the buyer shall pay the transport costs ex works or ex warehouse, as well as the costs of any transport insurance they require. If rosconi GmbH does not invoice the transport costs arising in any particular case, a flat-rate transport charge (excluding transport insurance) of €500.00 shall be deemed to have been agreed. The buyer shall be responsible for any customs duties, taxes, and other charges.

6.5 The purchase price is due and payable within 14 days following invoicing and delivery or acceptance of the goods.

6.6 rosconi GmbH, however, is entitled at any time, even within the context of an ongoing busi­ness relationship, to make deliveries, in full or in part, against advance payment only. rosconi GmbH will provide the buyer with a proviso to this effect in writing or in text form.

6.7 The buyer shall be in default on expiry of the payment deadline set out in section 6.5. Du­ring the period of default, interest shall be charged on the purchase price at the statutory default interest rate. rosconi GmbH reserves the right to assert further claims for damages caused by default. Our entitlement to commercial maturity interest (Section 353 of the German Commercial Code (HGB)) against merchants remains unaffected.

6.8 The buyer shall only be entitled to set-off or retention rights to the extent that their claim has been legally established or is uncontested. In the event of delivery defects, the buyer’s statutory rights shall remain unaffected.

6.9 rosconi GmbH’s receivables shall be due immediately if terms of payment are not adhered to or circumstances that could impair the customer’s creditworthiness become known. This shall apply irrespective of the maturity terms of accepted bills of exchange. In this case, rosconi GmbH is entitled to carry out outstanding deliveries only against advance payment or the provi­sion of a security. This shall not affect any of rosconi GmbH’s further statutory rights.

6.10 If, after conclusion of contract, it becomes apparent (e.g. by a petition to open insolvency proceedings) that rosconi GmbH’s claim to the purchase price is jeopardized by the buyer’s in­ability to pay, rosconi GmbH shall be entitled to refuse performance and – as applicable fol­lowing the setting of a deadline – withdraw from the contract in accordance with statutory provi­sions (Section 321 BGB). rosconi GmbH may withdraw from the contract immediately in the case of contracts for the manufacture of specific items (custom-made items); the statutory regulations regarding the lack of necessity to set a deadline remain unaffected by this.

7. Installation

Unless otherwise expressly agreed, the cost of setting up and installing goods purchased from rosconi GmbH is not included in the price and, should the customer request this service, shall be charged at a separately agreed hourly rate. Unless otherwise agreed in any particular case, an hourly rate of €50.00 (net) shall be deemed to have been agreed.

8. Retention of title

8.1 Up until complete payment of all current and future receivables due to rosconi GmbH ari­sing from this purchase contract and an ongoing business relationship (secured receivables), rosconi GmbH shall retain ownership of the sold goods.

8.2 The goods subject to retention of title shall not be pledged to third parties, nor shall they be collateralized, prior to full payment of the secured receivables. The buyer shall notify rosconi GmbH promptly in writing if a petition to open insolvency proceedings is submitted or if third parties access the goods belonging to rosconi GmbH (e.g. seizure).

8.3 In the event of a breach of contract by the buyer, in particular in the event of failure to pay the due purchase price, rosconi GmbH shall be entitled to withdraw from the contract in ac­cordance with statutory provisions and/or demand the return of the goods on the basis of reten­tion of title. A demand for return of goods shall not constitute a withdrawal from the contract; rosconi GmbH is entitled to demand the return of goods and merely reserve the right to withdraw from the contract. If the buyer does not pay the due purchase price, rosconi GmbH may only assert these rights if it has set the buyer a reasonable deadline for payment to no avail or the setting of a deadline is unnecessary in accordance with statutory provisions.

8.4 With the exception of a revocation in accordance with (c) below, the buyer shall be entitled to resell and/or process the goods subject to retention of title in their ordinary course of business. In this case, the provisions below shall apply additionally:

a) The retention of title shall cover the full value of products arising from the processing, mi­xing, or combining of our goods, whereby rosconi GmbH shall be deemed to be the manufactu­rer. Where our goods are processed, mixed, or combined with the goods of third parties, and any such third parties have retained title, rosconi GmbH shall acquire co-ownership as a proportion of the invoice values of the processed, mixed, or combined goods. In any event, the resulting product shall be subject to the same provisions as the goods delivered subject to the retention of title.

b) By way of security, the buyer hereby assigns to rosconi GmbH any and all claims against third parties arising from the resale of the goods or the products, in full or to the extent of any co-ownership interest in accordance with the preceding paragraph. rosconi GmbH will accept

the assignment. The buyer’s obligations as set out in section 8.2 also apply with regard to assig­ned claims.

c) In addition to rosconi GmbH, the buyer shall be authorized to collect on these claims. rosconi GmbH shall refrain from collecting on a claim as long as the buyer meets their payment obligations, their ability to perform has not been compromised, and rosconi GmbH has not as­serted its claim to retention of title by exercising a right in accordance with section 8.3. If this is the case, however, rosconi GmbH may demand that the buyer notify it of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant docu­ments, and notify the debtors (third parties) of the assignment. In this case, rosconi GmbH is further entitled to revoke the buyer’s authority to resell or process the goods subject to retention of title.

d) Where the realizable value of the securities exceeds rosconi GmbH’s claims by more than 10%, rosconi GmbH shall, upon the buyer’s request, release a security of its choice.

8.5 Insofar as the buyer is entitled to claims against insurance companies or other third parties due to damage, abatement, loss, or destruction of the retained goods, the customer shall assign these to rosconi GmbH with all ancillary rights and with immediate effect.

9. Buyer’s rights with regard to defects

9.1 Any and all of the buyer’s claims arising from defects in quality or title (including incorrect and short delivery, improper assembly, or defective assembly instructions) shall be governed by statutory provisions, unless otherwise stipulated below. In all cases, the applicability of the spe­cial statutory provisions regarding final delivery of unprocessed goods to a consumer shall re­main unaffected, even if the latter has processed them further (supplier recourse pursuant to Section 478 et. seq. BGB). Claims arising from supplier recourse are excluded if the defective goods have been processed by the buyer or another entrepreneur, e.g. by incorporation in ano­ther product.

9.2 Liability for defects is based primarily on the agreements entered into regarding the quality of the goods. Information, drawings, figures, technical data, and specifications of weight, dimen­sions, and performance contained in brochures, catalogs, circulars, advertisements, price lists, or in other documentation are not an indication of agreed quality unless explicit reference is made to specific information in the offer or in the order confirmation, or they are explicitly desig­nated as the agreed condition or as binding. Any information on the goods designated as bin­ding shall be understood as an indication of quality and not a guarantee as specified in Section 443 BGB.

9.3 If no agreement with regard to quality is made, the presence or otherwise of a defect shall be assessed in accordance with statutory regulations (Section 434(1)(2) and (3) BGB).

9.4 The buyer’s rights with regard to defects presuppose that they have complied with their statutory obligations to inspect and give notice of defects (Sections 377, 381 HGB). The statuto­ry provisions apply to the commercial obligation to inspect and give notice of defects. In the case of goods intended for installation or other further processing, an inspection shall always be car­ried out prior to processing. rosconi GmbH must be notified promptly if a defect becomes appa­rent during delivery, inspection, or at any later point in time. In all cases, notification of obvious defects shall be given within ten working days following delivery, notification of concealed de­fects not identified during inspection within the same time following their discovery. If the buyer fails to inspect the goods properly and/or provide notification of defects, rosconi GmbH shall not be liable for the defect that it is not notified of in good time or improperly in accordance with statutory provisions.

9.5 If the delivered goods are defective, rosconi GmbH shall be entitled to choose whether to carry out subsequent performance by remedying the defect (repair) or by delivering items that are free of defects (replacement). The right to refuse subsequent performance under statutory conditions remains unaffected.

9.6 rosconi GmbH is entitled to make subsequent performance conditional upon the buyer paying the due purchase price. The buyer, however, is entitled to retain a reasonable part of the purchase price that is commensurate with the defect.

9.7 The buyer shall grant rosconi GmbH the time and opportunity required to carry out subse­quent performance, and in particular shall hand over the rejected goods for the purpose of ins­pection. In the event of a replacement, the buyer shall return the defective item to rosconi GmbH in accordance with statutory provisions. Subsequent performance shall include neither uninstal­lation of the defective item nor reinstallation if rosconi GmbH was not originally obliged to install the item.

9.8 Where a defect is shown to exist, rosconi GmbH shall bear or reimburse the expenses ari­sing in the course of inspection and subsequent performance, in particular transport, travel, la­bor, and material costs, as well as any uninstallation and installation costs, in accordance with statutory provisions. Otherwise, rosconi GmbH may demand compensation from the buyer for the costs incurred as a result of an unjustified demand to remedy defects (in particular inspection and transport costs), unless the lack of a defect in the item was not apparent to the buyer.

9.9 If subsequent performance has failed or a reasonable period to be set by the buyer for subsequent performance has expired to no avail or is unnecessary in accordance with statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. There is no right to withdraw, however, in the event of an insignificant defect.

9.10 rosconi GmbH shall accept no liability for damage resulting from any of the following cir­cumstances: inappropriate or improper use, incorrect installation by the customer or third par­ties, normal wear and tear, incorrect or negligent handling, inappropriate equipment, substitute materials, chemical, electrochemical or electrical influences. The same shall apply to modifica­tions or repairs effected by the buyer or third parties carried out improperly or without our prior consent.

9.11 The buyer’s claims for damages or compensation for fruitless expenditure, even in the case of defects, shall only be valid in accordance with section 10 of these GTCD and shall otherwise be excluded.

10. Liability

10.1 Unless otherwise provided for in these GTCD, including the following provisions, rosconi GmbH shall be liable for any breach of contractual and non-contractual obligations in ac­cordance with statutory provisions.

10.2 rosconi GmbH shall be liable for damages – regardless of their legal grounds – in cases of intent and gross negligence within the remit of fault-based liability. In the case of ordinary negli­gence, rosconi GmbH shall be liable, subject to statutory limitations of liability (e.g. standard of care in one’s own affairs, minor breach of duty), only for

a) damages resulting from injury to life, limb, or health,

b) damages resulting from the violation of a substantial contractual duty (fulfillment of which is essential for proper execution of contract and compliance with which the contractual partner regularly trusts and may trust); in this case, however, rosconi GmbH’s liability is limited to com­pensation for foreseeable, typically occurring damage.

10.3 The limitations of liability arising from section 10.2 shall also apply to breaches of duty by or to the benefit of persons whose liability rosconi GmbH is responsible for in accordance with statutory provisions. They shall not apply if rosconi GmbH has fraudulently concealed a defect or assumed a guarantee for the quality of the goods, and to the buyer’s claims in accordance with the Product Liability Act.

10.4 The buyer can only withdraw from or terminate the contract for breach of duty not constitu­ting a product defect if rosconi GmbH is responsible for the breach of duty. The buyer is not entitled to a free right of termination (in particular in accordance with Sections 650, 648 BGB). The statutory requirements and legal consequences otherwise apply.

11. Limitation

11.1 In accordance with Section 438(1)(3) of the BGB, the general limitation of claims for mate­rial defects and defects of title shall be two years following delivery of the goods. If acceptance has been agreed, the limitation period shall commence upon acceptance.

11.2 If, however, the goods are a building or an object that has been used for a building in ac­cordance with the normal way it is used and has resulted in the defectiveness of the building (building material), then the limitation period in accordance with statutory regulations shall be 5 years from the time of delivery (Section 438(1)(2) BGB). Other special statutory provisions on li­mitation (in particular Section 438(1)(1), 438(3), 444, 445b BGB) shall also remain unaffected.

11.3 The aforementioned limitation periods under sales law also apply to the buyer’s contractual and non-contractual claims for damages based on defects in the goods, unless application of the standard statutory limitation period (Section 195, 199 BGB) would result in a shorter limitation period. Claims for damages by the buyer in accordance with section 10(2)(1) and 10(2)(2)(a) of these GTCD and pursuant to the Product Liability Act, however, become statute-barred exclusi­vely in accordance with statutory limitation periods.

12. Choice of law, place of jurisdiction, place of performance, third party beneficiary rights, prohibition of assignment, and severability clause

12.1 These GTCD and the contractual relationship between rosconi GmbH and the buyer shall be governed by the law of the Federal Republic of Germany, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

12.2 If the buyer is a merchant within the meaning of the German Commercial Code, a legal person under public law, or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of rosconi GmbH in 77971 Kippenheim. The same shall apply if the buyer is an entrepreneur as set out in Section 14 BGB. In all cases, however, rosconi GmbH is entitled to bring action at the place of performance of the delivery obligation in accordance with these GTCD or a prior individual agreement, or at the buyer’s general place of jurisdiction. Over­riding statutory provisions, in particular those relating to exclusive jurisdictions, remain unaffec­ted.

12.3 No rights shall be granted to third parties. The assignment of rights, receivables and claims shall only be effective with our prior written agreement.

12.4 These GTCD shall remain binding, even if an individual provision they contain is or beco­mes invalid. Invalid provisions shall be replaced by statutory provisions, if any. Should this repre­sent an unreasonable hardship for one of the contracting parties, the contract as a whole shall become ineffective.