General Terms and conditions

1. General provisions

1.1 The contractual relationship between the Contractor and FormaTurf GmbH (hereinafter referred to as the “Client”) governing the deliverables and services to be rendered by the Contractor (hereinafter jointly referred to as “Delivery”) is based on the provisions stipulated in the order and these order terms.

1.2 Delivery terms and other contractual terms issued by the Contractor shall not be considered part of this Contract, nor shall amendments or addenda to any orders, unless the Client expressly agrees in writing.

1.3 Statutory provisions apply in addition to these order terms, provided such provisions are not amended or expressly excluded in these order terms.

2. Orders

‍Orders are only considered legally binding if issued in writing by the Client, using the relevant order form and including an order number, provided no other provisions have been agreed (e.g. electronic data interchange (EDI), vendor managed inventory (VMI) or consignment warehouse). Orders containing no provision regarding a deadline for acceptance may be revoked by the Client two (2) weeks as of receipt of the order unless previously accepted by the Contractor.

3. Billing/tax

‍3.1 The Contractor shall issue a clear, verifiable invoice separately for each order. The invoice must the contain purchase order information (order number of the Client, date, line item, material number, quantity and price) and comply with the mandatory billing requirements of the country in which the Client is headquartered.

3.2 All prices are listed as net prices and shall be payable plus any applicable value-added tax or similar tax in the amount required under law at such time as the tax is incurred. Said aforementioned taxes shall be paid by the Client, regardless of the country in which they are incurred. Where applicable, the Client shall be reimbursed for any withholding taxes by the Contractor, regardless of the country in which they are incurred. Any and all other taxes, levies, fees, duties or other costs shall be paid by the Contractor and/or reimbursed to the Client, regardless of the country in which they are incurred.

4. Payments

4.1 Payments shall be made on a non-cash basis with a three-per-cent (3%) discount if made within 14 days or net if paid within 30 days. Unless otherwise agreed, the Client is entitled to issue payment in euros.

4.2 The payment period shall begin once Delivery has been received and/or accepted, and the invoice has been duly issued and received by the Client. Where Delivery has been received and/or accepted early, the payment period shall begin upon the agreed delivery date. Cash discounts are also permitted if the Client offsets or withholds payment in an appropriate amount due to defects, provided it is proportionate to the defect.

5. Delivery time/Deliveries/contractual penalties/permits

‍5.1 All dates and deadlines agreed are binding. Early Delivery shall require the prior written consent of the Client. Where there is early Delivery without obtaining prior written consent, the Client reserves the right to have the Delivery returned at the expense and risk of the Contractor.

5.2 Where there is a clear delay with respect to an agreed date or deadline, the Contractor shall undertake to promptly notify the Client in writing, stating the reasons for the delay, the duration of the delay and any remedial measures it intends to take. The entitlement of the Client to exercise any of its rights arising from the delay shall remain unaffected.

5.3 If the Contractor is late in rendering Delivery or parts thereof, the Client is entitled to charge a contractual penalty of 0.3% of the value of each late Delivery on completion of each business day in which it is delayed, but no more than five per cent (5%) of the value of the late Delivery. This shall not affect claims for performance or damages, but the contractual penalty shall be offset against any claims for damages resulting from this delay. The Client is entitled to claim a contractual penalty until such time as the final payment is made, even where the Client did not unconditionally receive or accept the Delivery in question.

5.4 The Contractor shall undertake to obtain the permits required for Delivery in due time and at its own expense.

6. Place of performance/transfer of risk/shipping/transfer of ownership

‍6.1 The place of performance is the Delivery address named by the Client.

6.2 If formal acceptance of Delivery is required by law or has been agreed, risk shall transfer to the Client at such time as Delivery is accepted. Otherwise, risk shall transfer to the Client upon receipt of each Delivery at the place of performance.

6.3 Delivery shall be made DDP (Incoterms 2020) to the Delivery address named by the Client. The Client is entitled to name the shipper and method of shipping.

6.4 Packing slips or delivery notes shall be attached to each Delivery, stating the content and the required order information (order number of the Client, date, line item, material number, quantity).

6.5 Ownership of each Delivery shall only be transferred to the Client upon hand-over at the place of performance.

7. Use of subcontractors

The use of third parties for the performance of a Contract (in particular all levels of subcontractor) or change to a different third-party subcontractor shall require the Client’s prior written agreement. If the Contractor intends to use third parties for the performance of the Contract from the outset, the Contractor shall inform the Client of this when issuing a quote.

8. Statutory minimum wage, German Minimum Wage Act, statutory provisions prohibiting illegal employment

8.1 The Contractor shall ensure that the employees deployed by it, its subcontractors or recruitment agencies for the performance of Contracts with the Client receive the statutory minimum wage pursuant to the German Minimum Wage Act (Mindestlohngesetz, MiLoG), or at the very least the minimum hourly wage based on the legal provision issued pursuant to Section 3a of the German Law on Labour Leasing (Arbeitnehmerüberlassungsgesetz, AÜG) or, if the services fall under the scope of the German Posted Workers Act (Arbeitnehmer-Entsendegesetz, AEntG), the mandatory minimum wage for that industry. Furthermore, the Contractor shall ensure that mandatory requirements to pay contributions to social insurance providers, employers’ liability insurance associations and other institutions, such as institutions common to the parties to the collective bargaining agreements referred to in Section 8 AEntG, are met.

8.2 Where selecting subcontractors or recruitment agencies, the Contractor shall ensure that the conditions stipulated in Section 8.1 are met and that said subcontractors’ or agencies’ compliance with these is agreed in writing. In addition, the contractor shall obtain written confirmation from the same, stating that they will require compliance with said requirements by any subcontractors or recruitment agencies they themselves commission.

8.3 In the event that a legitimate claim is made against the Client by an employee of the Contractor or by an employee of a subcontractor used, regardless of what level, or a recruitment agency, such as a surety on payment of the statutory minimum wage or industry standard minimum wage, the Contractor shall indemnify the Client against these claims. The same shall apply where there is a legitimate claim for payment against the Client by any of the collective bargaining institutions laid down in Section 8, German Posted Workers Act.

8.4 The Client is entitled to terminate the Contract with the Contractor without observing a notice period if the Client is legitimately held liable as a guarantor under the German Posted Workers Act or the German Minimum Wage Act.

8.5 In addition, the Contractor shall be liable to the Client for any and all damages incurred by the Client as a result of culpable non-compliance with the requirements of Sections 8.1 and 8.2.

8.6 No illegal employment whatsoever is permitted.

9. Acceptance

9.1 Where an acceptance procedure is legally required or contractually agreed, Delivery shall be rendered by the Contractor in good time for the Client to conduct said acceptance procedure. The outcome of the acceptance testing shall be logged in an acceptance report within a reasonable time-frame.

9.2 If no defects or only immaterial defects are identified during acceptance testing, the Client shall promptly issue a written statement of acceptance upon completion of the acceptance tests. This shall not affect the Contractor’s obligation to promptly remedy immaterial defects.

9.3 If material defects are identified during acceptance testing, the Client shall promptly issue a written statement declining to accept Delivery upon completion of the acceptance tests.

9.4 Receipt, setup, use or resale of the Delivery or payments made toward the Delivery shall not constitute acceptance.

9.5 If partial acceptance has been agreed, the above provisions regarding acceptance shall apply mutatis mutandis, whereby any partial acceptance shall be considered preliminary and contingent upon acceptance of the Delivery as a whole.

10. Quality inspection and obligation to give notification of defects

‍10.1 Upon delivery of the goods, the Client shall undertake to conduct an external inspection of the packaged goods using the delivery documents provided to determine whether the goods received match the quantity and type ordered and whether there is any externally visible damage arising from transport. In addition, the Client shall undertake to test representative samples for the entire Delivery. The depth of sample testing shall depend on the extent to which testing is feasible in each case without disrupting the ordinary course of business.

10.2 The Client shall undertake to notify the Contractor of any defects identified during the aforementioned inspection and testing within 14 days of Delivery.

10.3 The Client shall undertake to notify the Contractor of any defects identified later within 14 days of discovering them.

10.4 Sections 10.1 to 10.3 above shall not apply if acceptance of the Delivery is legally required or contractually agreed.

10.5 The Client has no further obligations to inspect goods or give notice of defects.

10.6 Delays in providing notification of defects shall not affect the Contractor’s fault-based defect rights.

11. Delivery rights

‍11.1 The Contractor shall upon delivery grant the Client non-exclusive, irrevocable, transferable rights of use, unrestricted in terms of time and location. In particular, the Client is entitled to integrate the Delivery, or parts thereof, into other products, to market the Delivery on an integrated or non-integrated basis worldwide and, to the extent necessary to fulfil the contractual purpose, to finish or otherwise redesign or rework the Delivery and market the results thereof as described above. Furthermore, the Client is entitled to engage in sublicensing with respect to these rights of use.

11.2 If and insofar as Deliveries, or parts thereof, are developed for the Client, the Contractor shall grant the Client the exclusive, irrevocable, transferable right, unrestricted in terms of time and location, to use said Delivery in all known and unknown ways. In particular, the Client is entitled to reproduce the Delivery, or parts thereof, at will, to distribute it, and reproductions thereof, at will (including by leasing), and to reproduce it publicly (in particular by making it publicly available). This also includes the right to finish or otherwise redesign or rework the Delivery, or parts thereof, and market the results thereof as described above. Furthermore, the Client is entitled to engage in sublicensing with respect to these rights of use.

11.3 If and insofar as the results of said development are subject to intellectual property rights, the Contractor hereby irrevocably consents to the Client registering industrial property rights in Germany and abroad, and hereby transfers any and all rights to and arising from this invention to the Client, in particular its entitlement to apply for and be granted a patent or utility model in Germany and abroad. The Contractor shall, at its own expense and within a reasonable timeframe, provide the Client with any and all information, documents and statements the Client needs for registration purposes, to conduct judicial or extrajudicial disputes, or to maintain these intellectual property rights. The Contractor shall, at its own expense, take all necessary steps regarding its employees and other parties involved with the invention to facilitate this transfer of rights, in particular by effectively claiming the inventions developed by its employees pursuant to the applicable provisions of the German Employee Inventions Act (Arbeitnehmererfindungsgesetz).

11.4 Any compensation for granting and/or transferring rights as stipulated above shall be included in the agreed remuneration.

12. Quality specifications for Deliverables/material defects and deficiencies in title

12.1 Der Auftragnehmer hat die Lieferung gemäß der vereinbarten Spezifikationen bzw. Leistungsbeschreibung zu erbringen. Die Lieferung muss dem Stand der Technik, den jeweils geltenden gesetzlichen Bestimmungen und den einschlägigen Vorschriften und Richtlinien von Behörden, Berufsgenossenschaften und Fachverbänden entsprechen.

12.2 Sofern die gesetzlichen Bestimmungen keine längeren Verjährungsfristen vorsehen, beträgt die Verjährungsfrist für Sachmängel 24 Monate und für Rechtsmängel 36 Monate. Soweit die Lieferung entsprechend seiner üblichen Verwendungsweise für ein Bauwerk verwendet worden ist und dessen Mangelhaftigkeit verursacht hat beträgt die Verjährungsfrist 5 Jahre.

12.3 Soweit eine Abnahme gesetzlich vorgesehen oder vereinbart ist, beginnt die Verjährungsfrist mit der Abnahme, andernfalls mit der Entgegennahme der jeweiligen Lieferung am Erfüllungsort.

12.4 Erfüllungsort für die Nacherfüllung ist nach Wahl des Auftraggebers der Ort, an dem sich die Lieferung zum Zeitpunkt der Entdeckung des Mangels befindet oder die vom Auftraggeber angegebene Lieferadresse.

12.5 Kommt der Auftragnehmer seiner Verpflichtung zur Nacherfüllung innerhalb einer vom Auftraggeber gesetzten angemessenen Frist nicht nach, so ist der Auftraggeber zusätzlich zu den vertraglichen und gesetzlichen Rechten berechtigt, die Mängel selbst zu beseitigen oder durch Dritte beseitigen zu lassen und vom Auftragnehmer Ersatz der hierfür erforderlichen Aufwendungen bzw. einen entsprechenden Vorschuss zu verlangen. Eine vorherige Fristsetzung ist nicht erforderlich, sofern nach Eintritt des Verzuges geliefert wurde oder gesetzlich keine Fristsetzung zur Nacherfüllung erforderlich ist.

12.6 Im Übrigen gelten für Sach- und/oder Rechtsmängel die gesetzlichen Bestimmungen.

13. Liability

Any further liability shall be governed by statutory provisions.

14. Environmental protection

14.1 Where financially and technically feasible, the Contractor shall undertake to use environmentally friendly products and procedures for Deliverables, their packaging, and subcontracted or ancillary services rendered by third parties.

14.2 The Contractor shall undertake to comply with its duties to communicate information on the basis of German environmental protection and occupational health and safety law. In particular, this applies to duties to communicate information pursuant to Article 33 REACH – duty to communicate information on substances in articles.

15. Confidentiality/provisions

‍15.1 The content of this order and any and all information received from the Client or from third parties on behalf of the Client in connection with the performance of the Contract shall be treated as confidential by the Contractor.

15.2 The Client shall not grant the Contractor any rights to said information whatsoever, except what is required to execute the Contract. Disclosure to third parties is only permitted with the Client’s prior written agreement. Where the Client agrees to disclosure, said third parties must be bound by the same duty of confidentiality at a minimum prior to any disclosure. The above duty of confidentiality shall cease five (5) years after the limitation period for claims for defects has begun. However, it shall not apply to information in the public domain, information that enters the public domain without this Contract being breached, information already known to the Contractor with no prior obligation to maintain confidentiality or which is subsequently lawfully obtained by third parties without being subject to a duty of confidentiality, which is independently developed by the Contractor or which the Contractor is legally required to disclose or has been required to disclose by a competent court or authority.

15.3 The Contractor is only permitted to point to its business relationship with the Client with the Client’s prior written consent.

15.4 Items and documents of any kind provided by the Client or by third parties on behalf of the Client, as well as items and documents produced on the basis thereof, may not be disclosed to third parties without the Client’s prior written consent. In addition, the Client shall not grant the Contractor any rights to said items and documents whatsoever, except what is required to execute the Contract. The Contractor shall adequately insure items provided against damage and loss at its own expense. Such items shall be stored separately, maintained as required, and labelled as the property of the Client. The items and documents provided shall be appropriately secured against unauthorised access or use, and returned to the Client once they are no longer required to execute the contract. In this regard, the Contractor has no right of retention to said items.

16. Foreign trade law/supply chain security

‍16.1 The Contractor shall meet any and all requirements stipulated under national and international customs, export control and other foreign trade law (hereinafter jointly referred to as “Foreign Trade Law”) and comply with the relevant provisions. The Contractor shall promptly provide the Client with any and all information and data, and changes thereto, needed by the Client to meet its obligations under Foreign Trade Law in terms of import, export and re-export, and shall do so no later than two (2) weeks of ordering. In particular, the Contractor shall provide:– the customs duty number according to the current goods classification system for foreign trade statistics or the HS (Harmonised System) code; and– the country of origin and, if requested by the Client, the supplier’s declarations on preferential origin or certificates of origin.

16.2 The Contractor shall take the measures necessary to ensure safety and security along the supply chain pursuant to the requirements of the EU’s AEO Initiative. Upon request by the Client, the Contractor shall provide verification of this by submitting an AEO S or AEO F certificate.

17. Third-party rights

‍17.1 The Contractor warrants that Deliveries are not in breach of any patent rights, utility model rights, trademark rights, design rights, copyrights or other third-party rights which restrict or exclude the intended use by the Client and/or its customers.

17.2 If use of the Delivery, or parts thereof, is impeded or prohibited by a breach of third-party rights that has been asserted, or if use is likely to be impeded or prohibited, the Contractor shall indemnify the Client and/or its customers against any and all third-party claims asserted judicially or extrajudicially upon first request. Furthermore, the Contractor shall undertake to reimburse the Client for any expenses incurred in mounting a legal defence, as well as any damages incurred as a result of asserting such claims of third-party rights being breached.

17.3 Should an alleged breach of third-party rights be identified, the Parties shall promptly inform one another of any such claims in the interests of mounting an effective defence.

18. Jurisdiction/applicable law/other provisions

‍18.1 German law shall apply exclusively to the contractual relationship between the Contractor and the Client, to the exclusion of conflict of laws provisions. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

18.2 If the Contractor is a merchant, a corporate body under public law or a special fund under public law, the Client’s commercial residence shall be the exclusive legal venue for any and all disputes arising from or in connection with the contractual relationship between the Contractor and the Client. However, the Client is further entitled to bring an action at the Contractor’s commercial residence.

18.3 The language of this contract is German. If the Parties operate in another language in addition to German, the German version shall prevail.

18.4 The Contractor is entitled to compensation or right of retention only if its counter-claim is undisputed or recognised as valid by a court of law. In addition, the Contractor shall only be entitled to assert a right of retention for counter-claims arising from the same contractual relationship. This shall not affect the exclusion of rights of retention as stipulated in Section 15.3.

18.5 If one or more of the above provisions is or becomes invalid, this shall not affect the validity of the remaining provisions. In such an event, the Parties shall undertake to replace the invalid provision with a valid provision that most closely approximates the economic intent of the invalid provision.