General Terms and Conditions of Delivery, Assembly, and Service

1. General Provisions

1.1 The following General Terms and Conditions of Delivery, Assembly, and Service (hereinafter the “GTC”) apply to all present and future deliveries and other services, including any assembly, service, and consulting services and information provided by the following company: oxytec ag, Feldeggstr. 39, CH-8034 Zurich (hereinafter the “Company”). This also applies if the Company does not again expressly refer the customer to these GTC in subsequent transactions. The customer’s terms and conditions shall in no case become part of the contract, even if the Company does not expressly object to them again. These GTC shall apply exclusively in all cases.

1.2 The Company’s offers, which are based solely on these GTC, are non-binding. A delivery obligation arises only upon the Company’s written issuance of an order confirmation. Cost estimates for assembly and service work are binding only if submitted in writing. A binding cost estimate may be exceeded by up to 15% without prior consultation with the customer if the performance of additional work appears necessary.

1.3 All agreements between us and the customer, in particular side agreements and amendments to the contract, must be recorded in writing.

1.4 If individual provisions of these GTC are or become invalid, the validity of the remaining provisions shall not be affected. In place of the invalid provision, the industry-standard provision applicable to this case shall apply; in the absence of such an admissible industry-standard provision, the corresponding statutory provision shall apply.

1.5 The customer may assign its claims against the Company under this contract to third parties only with the Company’s prior express consent. Section 354a of the German Commercial Code (HGB) remains unaffected.

2. Prices and Terms of Payment

2.1 Prices apply “ex works.” In addition, the value added tax applicable in Germany at the statutory rate shall be charged.

2.2 All invoices are—subject to a deviating written agreement in the individual case—payable without deduction no later than ten days from the invoice date as follows: one third after receipt of the order confirmation; one third after notification of readiness for dispatch; one third upon transfer of risk pursuant to Section 3 or—where assembly and service are to be performed by the Company—after completion of assembly; for assembly and service work only, immediately upon receipt of our invoice.

2.3 Payments, stating the invoice number, are to be made exclusively to the accounts listed in the Company’s invoice, in the agreed currency. They are to be rendered on the due date free of charges and without any deduction. Fulfillment occurs only on the day the Company can dispose of the payment without restriction.

2.4 The Company is not obliged to accept bills of exchange or checks. If their submission is permitted, they shall be accepted only on account of performance, subject to the possibility of discounting and against reimbursement of all expenses. The Company is likewise not obliged to present bills of exchange and checks in due time or to lodge protests.

2.5 In the event of the customer’s default in payment, the Company is entitled to charge default interest at a rate of eight percent (8%) above the respective base interest rate. The assertion of statutory interest on arrears (§ 353 HGB), further damages caused by default, and rights under these GTC (see Sections 2.7 and 5.3) remains reserved.

2.6 The customer shall have rights of set-off and retention only if its counterclaims have been finally adjudicated or acknowledged by the Company. Where the customer is entitled to exercise a right of retention, it may do so only to the extent that the retained amount does not exceed by more than ten percent (10%) the value of those parts of the delivery/service complained of as defective; § 320 (2) of the German Civil Code (BGB) remains unaffected.

2.7 If the customer is in default of payment of an invoice by more than two weeks, if a petition is filed to open insolvency or composition proceedings over the customer’s assets, if the customer has initiated an out-of-court proceeding for the purpose of debt settlement or has suspended payments, or if other circumstances become known to the Company that materially diminish the customer’s creditworthiness and thereby render the customer’s performance jeopardized, the Company is entitled to demand security for outstanding deliveries/services—by advance payment or bank guarantee (at the customer’s option)—setting a deadline of at least one week, and to refuse its performance until security is provided. After the fruitless expiry of a reasonable grace period, the Company is further entitled to withdraw from the contract or to claim damages for non-performance. In addition, in this case the Company may revoke the authority to resell together with the collection authorization pursuant to Sections 5.3 to 5.5, as well as the right to process, combine, and mix goods already delivered pursuant to Sections 5.2 and 5.3, and may demand the return of the delivery item.

3. Delivery and Transfer of Risk

3.1 Insofar as the Company obtains the delivery item and/or the parts, materials, or substances required for the manufacture of the delivery item from third parties, the Company’s delivery obligation is subject to complete, correct, and timely self-supply, unless the non-supply or delay is attributable to the Company. If—without fault of the Company—delivery is not complete, correct, and/or timely for any of the reasons mentioned in sentence 1, the Company is entitled to withdraw from the contract.

3.2 The risk and costs of shipment of the delivery item from the works/dispatch warehouse, as well as the costs of any transport insurance, are borne by the customer. This also applies if transport is carried out by a company selected by the Company. The customer must notify the Company of any transport damage without delay, at the latest within one week of receipt of the delivery item, even if the Company is not responsible for the transport.

3.3 The risk shall pass to the customer—also in the case of carriage-paid delivery and where assembly has been agreed—upon the beginning of loading of the delivery item onto the means of transport. Unless another type of packaging is prescribed, the delivery item shall be shipped in cardboard, crates, plank, or crate packaging, and in the case of truck or low-loader transport, it may also be shipped unpacked. Packaging is charged at cost. The risk passes to the customer, in the case of service work, upon completion, and in the case of assembly, upon installation of the parts.

3.4 If the delivery item is ready for dispatch and dispatch or provision of space or acceptance is delayed for reasons for which the Company is not responsible, the risk shall pass to the customer upon receipt by the customer of the notice of readiness for dispatch.

3.5 The customer may not refuse partial deliveries within a reasonable scope and must pay for them immediately upon receipt. The complaint of a partial delivery does not entitle the customer to refuse further deliveries under the same or another contract.

3.6 The customer shall also be in default of acceptance if the delivery is merely offered to it in writing by the Company. § 294 BGB is therefore waived. The other statutory requirements for default of acceptance remain unaffected.

3.7 The delivery item reported as ready for shipment in accordance with the contract must be taken over by the customer without delay. Otherwise, the Company is entitled, at the customer’s cost and risk, either to dispatch the delivery item or to store it, at the Company’s option, and to invoice it after the expiry of a one-week grace period. The same applies if the delivery item is not called off, or not called off in full, within the agreed call-off period.

4. Delivery Periods and Dates

4.1 Compliance with delivery periods and dates presupposes the timely fulfillment of the customer’s contractual obligations. Delivery periods commence on the date of the Company’s order confirmation, but not before clarification of all details of the execution of the order and receipt of all documents required for execution and other information to be provided by the customer, as well as receipt of any agreed advance payment. The delivery period is also deemed to have been met if the delivery item leaves the works or warehouse at the agreed time or if readiness for dispatch has been notified to the customer, but the delivery item cannot be dispatched on time without fault of the Company. The foregoing applies mutatis mutandis to delivery dates.

4.2 Even where a time is fixed by the calendar for the services or a time can be calculated by the calendar after a preceding event, default shall occur only upon receipt by the Company of a written reminder. If the Company is in default of delivery, the customer must set a reasonable grace period for the Company. This must be at least two weeks.

4.3 After expiry of a reasonable grace period granted to the Company in the event of delay in delivery, the customer is entitled to withdraw from the contract if it indicated, when setting the grace period, that it would refuse performance after the deadline. The right of withdrawal lapses if, upon expiry of the period, the delivery item has been dispatched or is ready for dispatch and this has been notified to the customer.

4.4 Unforeseen events beyond the Company’s control—such as war, risk of war, civil unrest, acts of violence by third parties against persons or property, sovereign acts including currency and trade policy measures, industrial disputes at the Company or its suppliers or carriers, interruptions of intended transport routes, fire, shortage of raw materials, shortage of energy, and other operational disruptions at the Company or its suppliers—shall extend firmly agreed delivery periods and dates by the duration of the hindrance. This also applies if the Company is already in default of delivery or if the aforementioned impediments to performance already existed before conclusion of the contract but were unknown to the Company. The Company shall notify the customer without delay of hindrances of the aforementioned kind.

4.5 If delivery delays attributable to the above persist for longer than two months, both parties are entitled to withdraw from the contract. However, the customer may withdraw only if the Company does not, within one week of the customer’s request, declare whether it will withdraw or deliver within a reasonable period. The same right of withdrawal exists irrespective of the above period if performance of the contract has become unreasonable for one of the parties in view of the delay.

4.6 If the customer suffers damage due to the Company’s delay, it is—excluding further claims for damages—entitled to claim liquidated damages for delay in the amount of one half percent (0.5%) for each full week of delay, but in total no more than five percent (5%) of that part of the total delivery that cannot be used in due time or in accordance with the contract as a result of the delay. This limitation does not apply where the Company is mandatorily liable in cases of intent or gross negligence (see Section 7) and also not where a commercial fixed-date transaction within the meaning of § 376 HGB has been agreed. The customer’s right of withdrawal under Sections 4.3 and 4.5 and the reservation of self-supply under Section 3.1 remain unaffected.

5. Retention of Title and Intellectual Property

5.1 The delivery item shall remain the Company’s property (reserved goods) until complete and final fulfillment (i.e., only after final release from any co-liability on bills of exchange or checks) of all the Company’s claims arising from the business relationship, regardless of the legal grounds. The same applies to future or conditional claims arising from contracts concluded concurrently with or subsequent to the business relationship. In the case of a running account, the retained title secures the Company’s claim arising from a current account relationship.

5.2 Processing and transformation of the reserved goods shall be carried out for the Company as manufacturer within the meaning of § 950 BGB without obligating it. The processed/transformed delivery item shall be deemed reserved goods securing the Company’s claims within the meaning of Section 5.1. In the event of processing, combining, or mixing the reserved goods with other goods not belonging to the Company, the Company shall acquire co-ownership of the new item in proportion to the invoice value of the reserved goods to the invoice value of the other goods used. If the Company’s title to the reserved goods is extinguished by combination, mixing, or processing/transformation, the customer hereby assigns to the Company its ownership rights to the new inventory or the new item in proportion to the invoice value of the reserved goods to the invoice value of the other goods used, and shall keep them in safe custody for the Company free of charge with the care of a prudent merchant. The co-ownership rights thus arising shall likewise constitute reserved goods securing the Company’s claims within the meaning of Section 5.1.

5.3 As long as the customer is not in default of payment, it may resell the reserved goods in the ordinary course of business and only on its normal terms and conditions, provided that the claims from such resale pass to the Company in accordance with Sections 5.4 to 5.6 at the same time. The customer is not entitled to any other dispositions of the reserved goods, in particular to pledge or transfer by way of security. The foregoing authorization may be revoked by the Company in the cases set forth in Section 2.7 as well as upon breach of the foregoing obligations. In the event of revocation, the customer is also prohibited from processing the reserved goods and from combining or mixing them with any other delivery item.

5.4 The customer’s claims and other rights, including all ancillary rights, arising from the resale of the reserved goods are hereby assigned to the Company as of the time of agreeing these GTC, and the Company hereby accepts the assignment. They serve to secure the Company’s claims to the same extent as the reserved goods. If the customer resells the reserved goods together with other delivery items not supplied by the Company, the claim from the resale shall be assigned in proportion to the invoice value of the reserved goods to the invoice value of the other delivery items. In the sale of goods in which the Company has co-ownership pursuant to Section 5.2, the Company shall be assigned a share of the claim corresponding to its co-ownership share.

5.5 So long as the authorization to resell has not been revoked, the customer fulfills its payment obligations to the Company, and does not otherwise materially breach contractual obligations, the customer is entitled to collect the claims from the resale. The customer is not entitled to assign or pledge the claims to third parties—including by way of sale of receivables to factoring banks. The customer shall inform the Company immediately of any impairment of its rights by third parties and provide the documents necessary for intervention. Any intervention costs shall be borne by the customer.

5.6 After revocation of the authorization to resell and/or of the collection authorization, the customer is obliged, upon the Company’s request, to provide information on the inventory of reserved goods and the assigned claims, to notify its purchasers of the assignment to the Company (if the Company does not do so itself), and to provide the Company with the information and documents necessary for collection. Furthermore, if the customer is in default of its payment obligations to the Company for more than two weeks, the Company may demand surrender of the reserved goods and collect the claims and other rights assigned to the Company. In addition, the Company may realize the reserved goods to satisfy its claims as soon as the Company has either withdrawn from the contract or the conditions for claiming damages in lieu of performance have arisen. The assertion of retention of title, in particular the repossession of the reserved goods, shall be deemed a withdrawal from the contract only if the Company expressly declares so in writing. Under the foregoing conditions, the customer’s right to possess the reserved goods shall expire. In the aforementioned cases, the Company is entitled, after prior announcement and setting of a deadline, to enter the customer’s premises and collect the reserved goods.

5.7 If the realizable value of the securities existing for the Company exceeds the secured claims in total by ten percent (10%), the Company is obliged, at the customer’s request, to release securities to that extent, at the Company’s discretion.

5.8 Intellectual property in the technology and design of the delivery item remains with the inventor or manufacturer, even if it has not (yet) been registered in a patent register. Any infringement of intellectual property in the technology and design by reproduction or enabling reproduction is prohibited.

6. Condition of the Goods and Liability for Defects

6.1 Where the Company names DIN standards, other domestic or foreign quality standards, or otherwise provides information concerning the condition of the delivery item, these are solely for the purpose of describing in more detail the services to be provided by the Company. No guarantee of condition is associated therewith. Deviations from illustrations and descriptions in the Company’s brochures and other documents, as well as from dimensional and weight specifications and performance values, are permissible unless expressly agreed to be binding or the deviations are unreasonable for the customer in light of the delivery item’s intended use recognizable to the Company.

6.2 The customer must inspect the delivery item without delay with the thoroughness reasonable to it and—if necessary by trial processing/trial operation—examine the condition of the delivery item, and must notify obvious defects without delay, at the latest within ten (10) days after receipt of the delivery item/completion of assembly, in writing (where possible and reasonable, enclosing samples) stating the invoice, production, and dispatch numbers. Hidden defects must be reported in the same manner without delay after their discovery. Otherwise, the customer’s warranty claims shall lapse. Any further obligations of the customer under § 377 HGB and the special provisions in Section 7 for deliveries with assembly services remain unaffected.

6.3 If the customer fails to preserve rights of recourse against third parties, processes a defective delivery item without prior quality control, or delivers the item complained of as defective to third parties without first giving the Company an opportunity to examine the alleged defects, all claims for defects shall lapse. The same applies to the consequences of unsuitable or improper use of the delivery item, faulty assembly by the customer, the use of unsuitable operating materials, unsuitable building ground, failure to observe operating and maintenance instructions, improper modifications to the delivery item, natural wear and tear, and faulty or negligent handling.

6.4 In the event of a timely and justified notice of defects, the Company is obliged, at its option, to remedy the defect free of charge or to deliver a replacement free of charge within a reasonable period. The Company shall be liable for this to the same extent as for the original delivery item. However, additional costs arising from the delivery item having been taken to a place other than the place of performance shall be borne by the customer.

6.5 If the Company does not perform, or does not properly perform, an obligation assumed under liability for defects, the customer is entitled—after expiry of a reasonable grace period—to reduce the remuneration or to rescind the contract. The latter right does not exist if the defect only insignificantly reduces the value or suitability of the entire delivery item in view of its ordinary or contractually intended use, and otherwise only with respect to the defective parts of the delivery, unless it would be unreasonable for the customer to maintain the contract with respect to the defect-free parts of the delivery.

6.6 Claims for defects shall become time-barred within one year from delivery of the delivery item or, in the case of deliveries with assembly services, within one year from acceptance, and in the case of pure assembly and service work from completion of such work at the customer’s premises/return of the assembly item to the customer. This does not apply to the extent that the law prescribes longer periods pursuant to § 438 (1) no. 2 BGB (buildings and items used for buildings) or to the extent that the Company is liable for intent.

6.7 Claims for damages are further limited in accordance with Section 8.

6.8 The foregoing provisions also apply to obvious wrong deliveries.

7. Additional Terms for Deliveries with Assembly Services and for Assembly and Service Work

7.1 For the use of the Company’s assembly and service, the Company shall—unless otherwise agreed in writing—charge the rates valid at the time the order is placed or according to effort: working, assembly preparation, and waiting hours; surcharges for overtime outside normal daily working hours and for assembly work on Saturdays, Sundays, and public holidays; travel time from the Company’s nearest branch and—if no technician is available there—from the head office; per diems; expenses for postage, telegrams, telephone calls, and fax transmissions; the costs of the technician’s travel to and from the site by car unless the use of an aircraft, possibly followed by a rental car/taxi, has been agreed, as well as any necessary accommodation costs. If the accommodation of a Company employee is more than 2 km from the assembly site, the daily travel costs and the daily travel time from the accommodation to the assembly site shall be charged as working time, but without surcharges.

7.2 The customer shall bear the costs of using assembly and service personnel in accordance with Section 7.1 even if an assignment cannot be carried out because the reported fault did not occur during the inspection, the customer missed the agreed appointment, or the assignment was withdrawn by the customer during performance. The Company is entitled to demand security for the payment of spare parts to be procured by it prior to their installation. After completion of assembly, the customer shall certify the hours spent by the technician/service engineer on the work sheet to be submitted by the technician/service engineer.

7.3 The customer shall ensure, in due time, the technical prerequisites required for an undisturbed and uninterrupted commissioning, repair, or maintenance of the delivery item, in particular safe access routes, unobstructed accessibility of the installation site, sufficient load-bearing capacity of the foundations, freedom from vibration of the subsoil, and the provision of energy and operating materials. The rooms in which the assembly is performed must be adequately protected against weather, heated, well lit, and sufficiently secured against interference by unauthorized third parties.

7.4 For the installation of machines, all construction and other preparatory work must be completed to the extent that installation can begin immediately after delivery and be carried out without interruption. The substructure for the machine to be installed must be completely dry and cured. The rooms in which the installation takes place must be adequately protected against weather, heated, and well lit. In addition, sufficiently dimensioned electrical connections must be laid by the customer and—where agreed with the customer or where it proves necessary during the work—customer personnel, lifting gear, and tools for auxiliary work must be made available in order to execute the assignment with as few interruptions as possible. Otherwise, any interruptions and the associated additional costs shall be borne by the customer.

7.5 After completion of assembly/performance, a trial operation shall be carried out to demonstrate performance (of the delivery item), during which the customer’s future operating personnel—made available in good time—will be instructed. Failures and fluctuations in performance (of the delivery item) during the trial operation shall not give rise to any claims by the customer against the Company. The same applies if the customer commissions the delivery item/service itself before acceptance.

7.6 Immediately after the trial operation, the customer shall accept the delivery item/service. Acceptance shall be recorded in an acceptance protocol signed by both parties. It may be refused only in the presence of material defects until such defects are remedied. Any technical approvals still outstanding by the trade supervisory authority or TÜV shall not entitle the customer to refuse or postpone acceptance. Any defects identified during such technical approvals—to which the Company must be invited—within the warranty period will be remedied by the Company in accordance with Section 6.

7.7 If the customer has put the delivery item/service into use, acceptance shall be deemed to have taken place upon expiry of six working days after the start of use, unless a later acceptance has been expressly agreed in writing. The Company may at any time prohibit the buyer from using the delivery item/service prior to acceptance.

7.8 If, prior to acceptance, the delivery item is damaged or destroyed by force majeure, war, civil unrest, or other unavoidable circumstances for which the Company is not responsible, the Company shall be entitled to payment for the delivery item and the assembly work performed up to that point.

7.9 In assembly and service work, liability for defects is limited to the work carried out by the Company on the assembly item and the spare parts installed. In the event of a timely and justified notice of defects in the Company’s assembly and service work, the Company is—at its option—obliged to remedy the defect free of charge or to provide a replacement free of charge within a reasonable period. Additional costs arising from the fact that the assembly item has in the meantime been taken to another location shall be borne by the customer. No further claims for defects arise in respect of other parts of the assembly item. Parts replaced by the Company under liability for defects shall become the property of the Company.

7.10 The Company’s liability for defects presupposes proper operation as well as regular maintenance of the assembly items installed/repaired/maintained by it. Liability for defects for the consequences of unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, the use of unsuitable operating materials, failure to observe operating and maintenance instructions, improper modifications, natural wear and tear, or faulty or negligent handling is excluded.

8. Limitation of Claims for Damages

8.1 The customer’s claims for damages against the Company or the Company’s employees, regardless of the legal grounds, are excluded unless liability is based on intent, gross negligence, an assumed guarantee, an assumed procurement risk, injury to life, limb, or health, or the breach of essential contractual obligations. This provision does not entail a change in the burden of proof to the customer’s detriment.

8.2 The customer’s claims for damages against the Company or the Company’s employees for the breach of essential contractual obligations are limited to the typical, foreseeable damage, unless liability is based on intent, gross negligence, an assumed guarantee, an assumed procurement risk, or injury to life, limb, or health. This provision does not entail a change in the burden of proof to the customer’s detriment.

8.3 Claims for damages against the Company or its employees, regardless of the legal grounds, shall become time-barred no later than one year. The special rule for claims for defects in Section 6.6 remains unaffected.

8.4 Where the Company is mandatorily liable under the German Product Liability Act (Produkthaftungsgesetz) for property damage and personal injury caused by product defects, the provisions of the Product Liability Act take precedence. For internal recourse under § 5 sentence 2 of the Product Liability Act, the foregoing rules shall continue to apply.

9. Information, Advice, and Intellectual Property Rights

9.1 Information on processing and applications, on maintenance or operation of the Company’s products, technical advice, or other information is provided to the best of the Company’s knowledge but without obligation and excluding any liability, unless the Company has acted at least with gross negligence. Where a consulting agreement is concluded or there exists a corresponding contractual ancillary duty, the Company’s liability is limited in accordance with Section 8.

9.2 The Company reserves the copyright to drawings and other design documents. These may not be made accessible to third parties. Where the Company manufactures the delivery item according to drawings, samples, or other specifications of the customer and thereby infringes third-party intellectual property rights, the customer shall indemnify the Company against all related claims.

10. Place of Performance, Venue, and Applicable Law

10.1 The place of performance for delivery/service and payment is Hamburg.

10.2 For any legal disputes arising out of this contract as well as concerning its formation and validity—including those arising from checks and bills of exchange—Hamburg shall be the place of jurisdiction, provided the customer is a registered merchant (Vollkaufmann), a legal entity under public law, or a public-law special fund; where the district court (Amtsgericht) has jurisdiction, the place of jurisdiction shall be the Local Court of Hamburg-Mitte. However, the Company may sue the customer at any other venue permissible under the German Code of Civil Procedure (Zivilprozessordnung).

10.3 The contractual relationship is governed by the law of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) are excluded.

Version: 07/2024