General Terms and Conditions of Herwig GmbH

I. General Provisions

1. General

Dipl. Ing. Herwig GmbH is a supplier of degreasing agents, fluxes, inhibitors, zinc alloys, and zinc cleaning agents for the hot-dip galvanizing industry and one of the leading suppliers of chemicals in the aforementioned areas. The following terms and conditions apply to all offers, deliveries, and services arising from sales contracts, contracts for work and services, or service agreements. The applicability of any General Terms and Conditions of the customer is expressly excluded.

2. Offers, Contract Confirmation

2.1

Unless otherwise expressly agreed, our offers are non-binding. The customer’s responses to our offers therefore constitute offers to enter into a contract. These are accepted either by an express written statement, via email, or by the performance of the consideration offered under the contract.

2.2

Subsequent changes to the subject matter of the contract at the customer’s request will be billed to the customer.

3. Prices and Payments, Advance Payment

3.1

The prices agreed upon at the time the contract is concluded shall apply.

3.2

Unless the customer is based within the Federal Republic of Germany, the prices quoted are exclusive of the applicable statutory value-added tax. Payments may only be made to us or to persons authorized by us in writing. Invoices are payable in advance as of the date of invoicing, unless otherwise agreed with the customer.

3.3

If the customer’s financial situation deteriorates in a way that raises doubts about their ability or willingness to pay—particularly in the event of protested bills of exchange or checks, late payments, outstanding balances from other deliveries, or a history of slow payments—we are entitled, subject to any other rights we may have, demand advance payment or security and withhold our services until such advance payment or security is provided, and, in the absence of advance payment or security, to withdraw from the contract in whole or in part. In any case, all of our claims arising from the contractual relationship shall become due immediately. This does not apply if the customer is not at fault for the payment arrears.

4. Liability for Breaches of Duty

4.1

Notwithstanding the provisions regarding warranty and other special provisions set forth in these terms and conditions, the following shall apply in cases where we have breached an obligation:

We are liable for damages caused by our employees, agents, and vicarious agents without limitation as to amount, including in cases of slight negligence resulting in injury to life, limb, or health.

Beyond that, we are liable only to the following extent:

4.2

If we breach an essential contractual obligation—that is, one without which the purpose of the contract could not be fulfilled—we shall be liable even in cases of intent, gross negligence, and slight negligence. In such cases, we shall compensate for damages that were foreseeable at the time the contract was concluded and are typical for this type of contract. If our conduct does not constitute willful misconduct or gross negligence, but only slight negligence, our liability in this regard is limited to 3,000,000 per claim, with an annual cap of twice that amount.

4.3

If our breach of duty does not constitute a breach of an essential contractual obligation, we are liable only in cases of gross negligence and willful misconduct.

4.4

Our liability for fraudulent misrepresentation and under the Product Liability Act remains unaffected.

4.5

The customer shall be held accountable for contributory negligence, e.g., failure to provide adequate cooperation (including, for example, inadequate error reports, organizational errors, or inadequate storage of the goods).

5. Prohibition on Assignment, Set-off, and Retention

The customer’s rights arising from transactions conducted with us may not be assigned without our written consent. The customer is only entitled to set off against our claims if the customer’s claim is undisputed or has been established by a final and binding decision of a German civil court. This does not apply if the customer is a consumer. The customer may exercise a right of retention only if it arises from the same legal relationship.

6. Miscellaneous

6.1

Should one or more of the foregoing terms be or become invalid or contain a loophole, the remaining terms shall remain unaffected. In such a case, the contracting parties are obligated to replace an invalid provision with a valid one that most closely corresponds to the economic purpose of the invalid provision. This also applies to filling any unintended gaps that require clarification.

6.2

Any agreements that deviate from or supplement the above provisions are valid only in the form of a written addendum to the contract concluded by the parties, in which reference is made to the amended provisions. Any waiver of this written form requirement must also be in writing.

6.3

This contractual relationship is governed exclusively by the laws of the Federal Republic of Germany. The applicability of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.

6.4

The place of jurisdiction for all disputes arising from this contract and regarding its validity is the registered office of Dipl.-Ing. Herwig GmbH.

II. Special Provisions for Sales Contracts

1. Offers for Sales Contracts

With regard to sales contracts, we will send the customer an offer specifying the materials or chemicals to be delivered by us by weight. Unless explicitly requested by the customer, no dimensional measurements will be provided.

2. Delivery; Customer’s Default in Acceptance

2.1

Deliveries of quantities greater than or less than the ordered goods, deviating by up to 10% from the contractually agreed delivery quantity, do not constitute a defect.

In the event of a short delivery up to the amount specified above, the customer has no right to demand a subsequent delivery. Excess quantities will not be billed separately.

2.1

Delivery dates are binding only if we have expressly confirmed them in writing as binding. The deadline is deemed met if, by the time it expires, the goods have left our distribution warehouse or we have notified the customer of our readiness to fulfill the order. Unforeseen circumstances and events (even if they occur at our suppliers’ premises), such as force majeure, government measures, failure to obtain official permits, labor disputes of any kind, sabotage, shortages of raw materials, delayed delivery of materials through no fault of our own, piracy, war, civil unrest, etc., shall postpone the delivery date accordingly, even if they occur during an already existing delay.

2.2

If we fail to meet a binding delivery date and it is unreasonable to expect the customer to wait any longer, the customer may assert further rights after the delay has occurred, following a written warning and the setting of a reasonable grace period. In this case, the customer’s claim for damages is excluded, unless the delay is attributable to intentional or grossly negligent conduct on our part or on the part of one of our legal representatives or agents. If the customer is in default of acceptance, we are entitled, after the expiration of a grace period to be set by us, to refuse to perform the contract and to claim damages. Alternatively, we may dispose of the goods as we see fit and deliver them to the customer within a new, reasonable period.

2.3

If we ship the subject matter of the contract at the customer’s request, this is done at the customer’s expense and risk. For all deliveries, the risk of loss of the goods passes to the customer upon handover to the shipping agent, the carrier, or any other persons designated to carry out the shipment, regardless of whether the shipment is made from the place of performance and who bears the freight costs.

If shipment is delayed for reasons beyond our control, the risk shall pass to the customer upon receipt of the notice that the goods are ready for shipment.

2.4

In the event of a failure to deliver by a supplier for reasons beyond our control, we are entitled to rescind the contract. In this case, we will immediately inform the customer of the unavailability of the goods and promptly refund any payments already made by the customer.

2.5

If the customer fails to pick up new goods within a reasonable period set for them, they shall owe ten percent of the purchase price as lump-sum compensation for the resulting storage costs. The customer retains the right to prove that lower storage costs were incurred.

Following a further written request to pick up the goods, we are entitled to sell the goods on the open market and to apply the proceeds toward the claims to which we are entitled.

3. Extended Retention of Title, Assignment of Claims

We reserve title to the delivered goods arising from the business relationship with the customer in simple, extended, and expanded forms until all claims (including all balance claims from the current account) have been satisfied, to which we are entitled against the customer now or in the future for any legal reason, or until the complete fulfillment of all claims arising from the respective contract.

The extended retention of title takes into account the fact that, unless the goods have already been paid for in full by way of advance payment, a commercial buyer subject to retention of title may only acquire the necessary funds to pay the purchase price by selling the purchased item. To enable the buyer subject to retention of title to do so, the seller subject to retention of title permits the buyer, through the agreement of an extended retention of title, to dispose of the purchased item. This is accomplished by granting the buyer the right to dispose of the purchased item subject to retention of title pursuant to Section 185(1) of the German Civil Code (BGB). Without an extended retention of title, a sale by the buyer subject to retention of title would result in the seller subject to retention of title losing ownership of the purchased item and, consequently, their security. The same applies if the purchased item is processed and the buyer under retention of title therefore acquires ownership of the item subject to retention of title by operation of law pursuant to Section 950 of the German Civil Code (BGB), provided that the value of the processing or transformation is not significantly less than the value of the raw material.

For this reason, the following applies:

Any disposition whatsoever of the goods subject to retention of title by the customer is permitted only in the course of the customer’s ordinary business. Under no circumstances, however, may the goods be transferred to third parties as security in the course of ordinary business. In the event of the sale of the goods in the ordinary course of business, the purchase price paid shall take the place of the goods. The customer hereby assigns to us any claims arising from such a sale. The customer is authorized to collect these claims as long as the customer fulfills its payment obligations to us. If this is not (or no longer) the case, we may demand that the customer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents to us, and notify the debtors (third parties) of the assignment. In view of the extended retention of title (pre-assignment of the respective purchase price claim), an assignment to third parties—in particular to a financial institution—is a breach of contract and impermissible. We are entitled at any time to review the customer’s sales records and to inform the customer’s buyers of the assignment. If the customer’s claim has been credited to a checking account, the customer hereby assigns to us its claim arising from the checking account against its buyer. The assignment shall be in the amount that we had invoiced the customer for the resold goods subject to retention of title. In the event of seizure of the goods at the customer’s premises, we must be notified immediately by sending a copy of the enforcement record and an affidavit stating that the seized goods are those delivered by us and subject to retention of title.

If the value of the collateral, as specified in the preceding paragraphs of this section, exceeds the amount of the outstanding claim secured thereby—after deduction of the costs of securing the collateral—by more than 20% for a foreseeable period, the customer is entitled to demand that we release collateral to the extent of the excess. During the term of the retention of title, the customer must insure the goods owned by us against fire, water damage, theft, and burglary. The rights arising from this insurance are assigned to us. We hereby accept this assignment.

If the goods delivered by us under retention of title are inseparably blended or mixed with other materials belonging to the customer or to third parties, we shall also become co-owners of the new item pursuant to Sections 947, 948 of the German Civil Code (BGB), in proportion to the value of the goods subject to our retention of title at the time of the combination.

4. Default, Impossibility, Withdrawal

4.1

If we are in default regarding the delivery of an item and are found to be guilty of gross negligence or willful misconduct with respect to such default, we shall compensate the customer for all damages incurred as a result that typically arise in connection with the contractual relationship in question and were foreseeable at the time the contract was concluded. In the event of simple negligence, the customer’s claims are excluded.

4.2

We do not assume any procurement risk. Therefore, if—despite having demonstrably concluded a corresponding supply contract—our supplier fails to provide us with the contractually agreed-upon goods, the customer shall have no right to claim damages.

5. Warranty

We provide a warranty as follows:

5.1

The customer is obligated to inspect the delivered goods for visible defects immediately upon delivery and to notify us in writing of any existing defects without delay (no later than the third business day following delivery).

Defects that are not immediately apparent and only become evident over time must be reported by the customer in writing (either by mail or email) immediately upon discovery, but no later than 15 calendar days after discovery.

Defects that are reported late—that is, in violation of the above obligation—are excluded from the warranty. Notifications of defects will be recognized as such by us only if they are submitted in writing, even if they are reported to field staff,

carriers, or third parties.

5.2

The return of goods to us by business customers in the event of a defect may only take place with our prior consent. Returns made without our prior consent will not be accepted by us. In this case, the customer shall bear the costs of the return resulting from our refusal to accept the goods.

5.3

In the event that a repair or replacement delivery is made due to a valid complaint regarding a defect, the provisions regarding the delivery time shall apply accordingly.

5.4

The warranty period is 12 months and begins when the risk passes to the customer.

Within this warranty period, we will remedy, free of charge, any defects that the customer has reported to us in writing.

The defect will be remedied, at our discretion, by correcting the defect, circumventing the defect, or delivering a different item (subsequent performance).

5.5

If a remedy fails, the customer may set us an additional grace period of at least 3 weeks within which we must fulfill our obligations. This does not apply if setting a grace period is unnecessary due to special circumstances (e.g., Sections 323(2), 326(5), and 636 of the German Civil Code (BGB)). Upon the unsuccessful expiration of this period, the customer may, at his or her discretion, demand a price reduction or withdraw from the contract and, if the conditions are met, claim damages.

5.6

Any further claims by the customer against us are excluded, in particular claims for compensation for damages that did not occur to the subject matter of the contract itself. This does not apply to the extent that liability arises in cases of willful misconduct or gross negligence; see the provisions under Section 12.

5.7

Our liability for material defects arising from unsuitable or improper use and storage by the customer or third parties, or from faulty or negligent handling, as well as for the consequences of improper modifications made by the customer or third parties without our consent, is excluded, except in cases of willful misconduct or negligence (see Section 12). The same applies to defects that only insignificantly reduce the value or suitability of the goods. If, upon inspection, the defect reported by the customer cannot be verified, the customer shall bear the costs of the inspection, unless the customer would not have been able to avoid the defect even if the defect had been inspected in accordance with due diligence.

5.8

If defects exist, we will, at our discretion, replace the item subject to complaint at our place of business or at the customer’s place of business (subsequent performance). We will bear the costs of replacement delivery. If there is a defect that can only be remedied on-site at the customer’s location, we shall bear the resulting costs only up to the location where the item was intended to be used in accordance with the contract. If nothing has been agreed upon and nothing can be inferred from the circumstances, we shall, at most, be obligated to provide subsequent performance at the customer’s place of business. Any additional costs resulting from the customer having moved the item to a location other than the originally intended installation site or the customer’s place of business shall be borne by the customer, unless moving the item to that location constitutes proper use of the goods.

If the defect is not remedied after two attempts at subsequent performance, the customer may declare withdrawal from the contract.

5.9

If we have provided a warranty for a specific quality of the sold item for a specified period, the foregoing provisions regarding the obligations to inspect and give notice of defects, as well as the number of attempts at subsequent performance and the requirement to give notice of defects without delay, shall not apply.

5.10

We generally do not provide guarantees. Should we, in exceptional cases, have provided a guarantee, such guarantee—unless otherwise agreed in writing—shall not give rise to claims for rescission, reduction in price, or damages, but only to claims for repair or, at our option, replacement. The warranty period begins upon delivery of the goods to the customer and is neither interrupted nor suspended by rectification. Any additional statutory claims (warranty) are not limited by this provision.

III. Special Provisions for Services

If the subject matter of our performance is a service, such as consulting, the following applies:

We are only obligated to exercise due diligence in the performance of our services.

Unless expressly agreed otherwise, we are generally free to select the employees who will perform work as part of a consulting project. If practical circumstances require that certain services be performed in whole or in part at a specific location, we will coordinate this with the client. In such cases, we undertake to comply with the applicable safety and accident prevention regulations as well as the organizational rules in effect at the relevant facility. The client must inform our employees of these regulations and rules before they begin work on-site.

We warrant that all employees we assign to perform a consulting engagement possess the qualifications required for the respective task.

We determine our employees’ working hours ourselves. We ensure that assigned tasks are completed as quickly as possible. All time estimates provided in connection with an assignment are based on the assumption that each employee of Herwig GmbH will work within the scope of our standard weekly working hours. Any deviations from this must be agreed upon when the respective assignments are placed.

Prior to the execution of an order, the customer shall make all documents available to our employees and provide them with all information that, in our discretion, is relevant to the execution of the order. This also applies to all documents, processes, and circumstances that become known only during the processing of an order.

The customer shall designate a contact person who is responsible for providing all necessary information and who is available, if necessary, to clarify or decide on factual matters.

If employees of Herwig GmbH perform work on-site at the customer’s location, the customer shall sign a service agreement describing the scope of work before the work begins. Upon completion of the work, the customer shall sign off on the service agreement.

We undertake to keep confidential all of the customer’s information that we recognize as requiring confidentiality or that has been designated as such by the customer, and not to use it for any purpose other than the performance of the respective order without the customer’s written consent

a) not to use it for any purpose other than the performance of the respective assignment; and

b) not to disclose it to any third party; and

c) to make it available only to those employees who need it to carry out the respective assignment and, to the extent permitted by law, to oblige such employees to maintain confidentiality in accordance with this Agreement; and

d) not to exploit them commercially in any other way.

IV. Special Provisions for Services Performed Under a Contract for Work

Should our consulting services, in exceptional cases, be of a contractual nature for work and services, the following shall apply:

The results produced by us within the scope of an assignment shall be reviewed and accepted by the client immediately upon receipt (hereinafter referred to as “acceptance”).

Tests required as part of the acceptance are generally conducted by the customer and us, or, if necessary, together with the customer. The deadline for acceptance may be extended by agreement between the customer and us if the acceptance tests require a longer period of time due to the scope of the work to be performed. Results produced or a work product created shall be deemed accepted

- by written declaration from the customer;

- if the customer has not reported any defects within 4 weeks of delivery and Section 5.1 has not taken effect.

We undertake, for a period of 12 months following acceptance, to remedy any errors or other defects discovered subsequently upon the customer’s request, provided that our consulting services, in exceptional cases, were of a contractual nature. We reserve the right to make at least two attempts to remedy any defect that has occurred.