General Terms and Conditions of eutecma gmbh, Binnenhafenstraße 7, 68159 Mannheim

1. General Information, Scope

(1.1.) Our General Terms and Conditions (GTC) apply exclusively; we do not recognize any terms and conditions of the purchaser that conflict with or deviate from our GTC, unless we have expressly agreed to their validity in writing. This requirement for consent applies in all cases, for example even if the purchaser refers to their own terms and conditions during the order process and we do not expressly object.

(1.2.) All agreements made between us and the purchaser for the purpose of executing this contract are fundamentally set out in these GTC; information in our order confirmation and individual agreements take precedence over these GTC.

(1.3.) Our GTC apply only to entrepreneurs within the meaning of § 14 (1) of the German Civil Code (BGB), legal entities under public law, or special funds under public law. No contracts are concluded with consumers/private individuals within the meaning of § 13 of the German Civil Code (BGB).

2. Offer, Offer Documents

(2.1.) If an order is to be qualified as an offer according to § 145 of the German Civil Code (BGB), we may accept it within two weeks.

(2.2.) We reserve ownership and copyright rights to illustrations, drawings, calculations, and other documents. This also applies to written documents marked as “confidential.” The purchaser requires our express written consent before passing them on to third parties.

3. Prices, Payment Terms, Right of Withdrawal

(3.1.) Unless otherwise stated in the order confirmation, our prices are “ex works.”

(3.2.) Statutory VAT is not included in our prices; it will be shown separately on the invoice at the statutory rate on the day of invoicing.

(3.3.) Unless otherwise stated in the order confirmation, the purchase price is due gross (without deduction) upon delivery of the purchased goods. The statutory rules regarding consequences of default in payment apply. However, we are entitled at any time – even during an ongoing business relationship – to make a delivery in whole or in part only against advance payment; we will declare such a reservation at least with the order confirmation.

(3.4.) The purchaser has set-off rights only if their counterclaims have been legally established, are undisputed or recognized by us; they may exercise a right of retention only insofar as their counterclaim is based on the same contractual relationship.

(3.5.) We reserve the right to invoice for agreed services by mail or electronically by email.

(3.6.) In case of significant increases in raw material costs, we may withdraw from a confirmed order; likewise if – despite a covering transaction – we are not supplied by our supplier for reasons beyond our control (proof will be provided upon request). The purchaser cannot claim damages from this.

4. Delivery, Transfer of Risk, Delivery Time

(4.1.) The start of our stated delivery period presupposes clarification of all technical questions; unless otherwise stated in the order confirmation, delivery is “ex works.” If requested by the purchaser, we will insure shipment at their expense.

(4.2.) Compliance with our delivery obligation further presupposes timely and proper fulfillment by the purchaser; defense of unperformed contract remains reserved.

(4.3.) The risk of accidental loss or deterioration passes to the purchaser at latest upon handover; equivalent if the purchaser is in default accepting delivery. For shipment sales risk passes when goods are handed over to carrier/forwarder/other person/institution designated for shipment; equivalent if the purchaser is in default accepting delivery.

(4.4.) If the purchaser is in default accepting delivery, commits a culpable breach of other cooperation duties, or our delivery is delayed for other reasons attributable to the purchaser, we are entitled to demand reimbursement for the damage incurred to us in this respect, including any additional expenses (e.g. storage costs). For this, we charge a fixed compensation of 0.5% of the order value (net price from the order confirmation) per calendar day, starting with the communicated delivery date or – in the absence of notification of a delivery date – with the notification of readiness for shipment of the purchased goods; in total, the fixed compensation may not exceed 5% of the order value. The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the fixed compensation shall be credited against any further monetary claims. The purchaser retains the right to prove that in fact no damage or only a substantially lower damage than the above fixed amount has occurred.

(4.5.) We are liable under the statutory provisions to the extent the underlying purchase contract is a fixed contract or fixed purchase within the meaning of § 376 of the German Commercial Code (HGB). We are also liable under the statutory provisions if, as a consequence of a delivery delay attributable to us, the purchaser is entitled to claim that his interest in further performance of the contract has ceased.

(4.6.) We are further liable under the statutory provisions if the delivery delay is based on a intentional or grossly negligent breach of contract attributable to us; fault of our representatives or vicarious agents is attributable to us. If the delivery delay is not based on an intentional breach of contract attributable to us, our liability for damages is limited to the foreseeable, typically occurring damage.

(4.7.) We are also liable under the statutory provisions to the extent that the delivery delay attributable to us is based on the culpable violation of a material contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.

(4.8.) Further statutory claims and rights of the purchaser remain reserved.

5. Liability for Defects

(5.1.) Purchaser’s defect claims require proper compliance with inspection/complaint obligations under § 377 of the German Commercial Code (HGB).

(5.2.) If there is a defect in purchased goods, we may choose whether to remedy it by repair or replacement with new defect-free goods; if unreasonable for purchaser they may refuse chosen method. Our right to refuse supplementary performance under statutory conditions remains unaffected.

(5.3.) In case of defect rectification we are obliged to bear all costs required for the purpose of remedying the defect, in particular transportation, travel, labor and material costs, insofar as these do not increase because the purchased good has been moved to a place other than the place of performance.

(5.4.) If supplementary performance fails, the purchaser may withdraw from contract or reduce price.

(5.5.) We are liable under the statutory provisions if the purchaser asserts claims for damages based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents. If no intentional breach of contract is alleged against us, the liability for damages is limited to the foreseeable, typically occurring damage.

(5.6.) We are liable under the statutory provisions if we culpably breach a material contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage. Material contractual obligations are those obligations the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the contracting party may regularly rely.

(5.7.) Liability for culpable injury to life, body, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

(5.8.) Unless otherwise specified above, liability is excluded.

(5.9.) The limitation period for defect claims is twelve months, counted from risk transfer.

(5.10.) The limitation period in the case of a supplier recourse under §§ 478, 479 of the German Civil Code (BGB) remains unaffected; it is five years, counted from delivery of the defective good.

(5.11.) Statutory claims remain unaffected, in particular rights under § 439 (2), (3) of the German Civil Code (BGB) and in cases of fraudulent intent.

6. Total Liability

(6.1.) Any further liability for damages beyond what is provided in section 5 is excluded – regardless of the legal nature of the claim asserted. This applies in particular to claims for damages due to culpa in contrahendo (before concluding the contract), due to other breaches of duty, or due to tort claims for compensation of property damages pursuant to § 823 of the German Civil Code (BGB).

(6.2.) To the extent that liability for damages is excluded or limited against us, this also applies to the personal liability for damages of our employees, workers, staff, representatives, and vicarious agents.

7. Retention of title Security

(7.1.) We reserve ownership of the purchased goods until we have received all payments under the delivery contract. If the purchaser acts contrary to the contract, in particular if there is payment default, we are entitled to reclaim the purchased good. Retaking the purchased good by us does not constitute withdrawal from the contract, unless we have expressly stated this in writing. Our seizure of the purchased good shall always constitute a withdrawal from the contract. After taking back the purchased good, we shall be entitled to sell it; the proceeds of the sale shall be offset against the purchaser’s liabilities – less reasonable costs of sale.

(7.2.) The purchaser is obliged to treat the purchased good with care; in particular, he must insure it adequately against fire, water, and theft at his own expense, at replacement value. If maintenance and inspection work are required, the purchaser must carry these out in good time at his own expense.

(7.3.) In the event of seizures or other interventions by third parties, the purchaser must notify us immediately in writing so that we can file an action under § 771 ZPO. If the third party is unable to reimburse us for the court and extrajudicial costs of an action under § 771 ZPO, the purchaser shall be liable for the resulting loss.

(7.4.) The purchaser is entitled to resell the purchased goods in the ordinary course of business; however, he hereby assigns to us all claims arising from the resale to his customers or third parties in the amount of the final invoice amount (including VAT), irrespective of whether the good was sold with or without processing. The purchaser remains authorized to collect these claims after the assignment. Our own right to collect the claims remains unaffected. We undertake not to collect the claim as long as the purchaser meets his payment obligations from the collected proceeds, does not fall into payment default, and, in particular, no application for opening of insolvency or composition or bankruptcy proceedings has been filed or there is a suspension of payment. If this occurs, we may require the purchaser to provide information about the assigned claims and their debtors, to supply all necessary data for collection, to hand over the relevant documents, and to notify the debtors (third parties) of the assignment.

(7.5.) The purchaser’s processing or transformation of the purchased good is always performed for us. If the purchased good is processed with other objects not belonging to us, we acquire co-ownership of the new good in the ratio of the value of the purchased good (final invoice amount, including VAT) to the value of the other processed goods at the time of processing. The same applies to the good created by processing as for the retained purchased good.

(7.6.) If the purchased good is inseparably mixed with other objects not belonging to us, we acquire co-ownership of the new good in the ratio of the value of the purchased good (final invoice amount, including VAT) to the other mixed goods at the time of mixing. If the mixing is such that the purchaser’s good is to be regarded as the main good, it is agreed that the purchaser transfers to us a proportional co-ownership. The purchaser keeps the resulting sole or co-ownership for us.

(7.7.) The purchaser also assigns to us the claims to secure our claims against him that arise from the connection of the purchased good with real property against a third party.

(7.8.) We undertake to release the collateral due to us at the purchaser’s request insofar as the realizable value of our collateral exceeds the secured claims by more than 10%; the choice of which collaterals to release lies with us.

8. Retecma

(8.1.) Retecma is our recycling loop for ICECATCH PROTECT boxes/cooling elements (“ICECATCH goods”).

(8.2.) The purchaser may return ICECATCH goods purchased from us that are damaged or for which he has no use anymore to the nearest Refreshment or Recycling Center. By returning the ICECATCH goods to the Refreshment or Recycling Center, the purchaser re-transfers the ICECATCH goods to us, i.e., he transfers possession and ownership of the ICECATCH goods to us. There, the ICECATCH goods are first comprehensively and completely inspected with regard to the specification parameters. Successfully tested ICECATCH goods that meet the relevant product specifications enter regular sales. ICECATCH goods that do not meet the product specifications are qualified for recycling and subsequently processed into finished products.

(8.3.) By using Retecma, the purchaser avoids the costs of disposing of damaged or no longer needed ICECATCH goods and contributes to a sustainable supply chain, among other benefits, including the reduction of CO₂ emissions.

9. CO₂ Customer Cockpit

(9.1.) Subject matter and Services

(9.1.1.) We provide selected customers with access to a web portal (“CO₂ Cus-tomer Cockpit”) where the customer can view their CO₂ data from their business relationship with us and the number of ICECATCH PROTECT boxes or cooling elements (“ICECATCH goods”) purchased from us and re-transferred to us, which document a climate benefit (especially reduction of CO₂ emissions).

(9.1.2.) The climate benefit arises from the use of Retecma (section 8) and the purchase of (partly) recycled ICECATCH goods by the customer.

(9.1.3.) A right to provision of access to the CO₂ Customer Cockpit does not arise solely from the use of Retecma, but requires a separate agreement.

(9.2.) Registration and password

(9.2.1.) We register the customer with the necessary contact data (company and e-mail address) in the CO₂ Customer Cockpit. In addition, our data protection notices apply, accessible via our homepage.

(9.2.2.) The customer receives a user ID and a password for access to the CO₂ Customer Cockpit, which he must treat as confidential and protect against unauthorized access.

(9.3.) Customer obligations, payment terms and suspension

(9.3.1.) The customer undertakes to pay the monthly or annual fee (“payment rate”) for the use of the CO₂ Customer Cockpit as regulated in the separate agreement.

(9.3.2.) The payment rates are due, depending on the agreement, monthly or annually in advance by the 3rd business day of the starting month/year and, for new customers, on the date of contract conclusion. Due and paid payment rates for unused months (e.g., due to termination) will be refunded.

(9.3.3.) We are entitled to suspend access to the CO₂ Customer Cockpit if the customer is in arrears with at least one payment rate. The same applies if he is in partial arrears with several payment rates whose total amount equals one full payment rate. The suspension will be announced with a deadline. Reinstatement after payment usually occurs one business day after receipt of payment.

(9.4.) Termination

(9.4.1.) The User Agreement for the use of the CO₂ Customer Cockpit may be terminated by either party with four weeks’ notice to the end of the month.

(9.4.2.) The right to terminate for cause remains unaffected.

10. Governing law, Place of performance, Jurisdiction

(10.1.) If the purchaser or customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business in Mannheim. The same applies if the purchaser or customer is an entrepreneur within the meaning of § 14 (1) of the German Civil Code (BGB). However, in all cases we are entitled to bring a claim at the general jurisdiction of the purchaser or customer.

(10.2.) The law of the Federal Republic of Germany applies; the application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

(10.3.) Mannheim shall be the place of performance for all obligations under these GTC.

11. Final Provisions (Written Form, Severability Clause)

(11.1.) Amendments to these GTC must be made in writing. This also applies to any waiver or modification of this written form requirement.

(11.2.) Should any provision of these GTC be invalid, the validity of the remaining provisions shall not be affected thereby. Instead, a substitute provision that comes as close as possible to fulfilling the purpose of these GTC shall apply, which the Parties would have agreed upon in order to achieve the same economic result if they had known about the invalidity.