General Terms and Conditions of Business and Delivery (GTC)

§ 1 Scope of Application

(1) The deliveries, services and offers of KBE Elektrotechnik S.C.S., Sousse, Tunisia (hereinafter referred to as "we", "us" or "Seller") shall be made exclusively on the basis of these General Terms and Conditions of Business and Delivery (hereinafter referred to as "GTC"). The GTC shall be an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter referred to as "Buyer") for the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Buyer, even if they are not separately agreed again. They shall be deemed to have been accepted upon acceptance of the offer by the Buyer, at the latest, however, upon takeover of the goods or services.

(2) General terms and conditions of business and delivery of the buyer or other third parties shall not apply unless the seller has expressly accepted them in writing. The waiver of the written form shall also require the written form. Reference to a letter of the Buyer containing or referring to terms and conditions of the Buyer or any other third party shall not constitute such written consent.

§ 2 Offer and conclusion of contract

(1) All offers made by the Seller are subject to change without notice and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Buyer's order shall be deemed to be a binding offer of contract to us. Unless otherwise stated in the order, we shall be entitled to accept this offer of contract within 10 working days from receipt of the order by us. A legally binding contract shall only be concluded upon our written confirmation of the order.

(2) We may accept the Buyer's offer either in writing (e.g. by confirming the order) or by delivering the goods to the Buyer. If the order confirmation deviates from or supplements the order, we may demand a reconfirmation of the deviation even in the case of a fictitious approval before we begin with the performance of the ordered service.

(3) Supplements, amendments or ancillary agreements to the relevant contractual agreement require the written confirmation of the seller in order to be effective.

§ 3 Prices

(1) Unless otherwise agreed in individual cases, the prices stated in our offer shall apply, ex warehouse (EXW), plus packaging. If the Buyer's order is not preceded by an offer from the Seller, the prices stated in our order confirmation and the costs shown therein for packaging, freight, if any, and necessary ancillary costs (e.g. requested transport insurance) shall apply unless the Buyer objects in writing or in text form within 3 working days of receipt of the order confirmation. In this case, the Seller shall not commence performance of the contractual service until the objection period has expired. In any case, however, the Seller may also make the performance of the service dependent on a reconfirmation of the order confirmation. If the prices, costs for packaging, freight and other ancillary costs, if any, stated in the order confirmation differ from any prices stated in the Buyer's order, an agreement on the prices stated in the order confirmation shall be reached at the latest when the Buyer accepts the goods without a reservation expressly declared in writing or in text form.

(2) Unless otherwise stated in our offer or order confirmation, the Price shall consist of the cable price and the metal surcharge. The cable price consists of the Processing Price ("Cu0 price") and the product of the calculated metal input weight (kg) and the metal base (e.g. in the case of "CU150" 1.50 EUR/kg). The metal surcharge is the product of the calculated metal input weight and the difference between the metal base and the Metal Price as defined in § 3.3.

(3) For the settlement of the metals, the Seller calculates a daily quotation on the basis of the unknown quotation of the LME (London Metal Exchange, settlement cash). This, together with the procurement costs, which include costs for purchasing, internal handling and financing, forms the Metal Price. Settlement takes place with the average Metal Price of the month before delivery. The procedure for determining the Metal Price shall be published at least once a year by means of an announcement by the Seller. The above shall apply unless otherwise agreed in writing.

(4) The prices and costs charged are exclusive of the statutory value added tax, which will be added.

§ 4 Delivery Dates; Delays; Withdrawal; Force Majeure;

(1) The dates and deadlines stated by the Seller shall only be binding insofar as they have been expressly confirmed by the Seller as "binding". Unless otherwise agreed, confirmed delivery dates are "ex works" (EXW) dates. If the Seller has not expressly confirmed details of delivery times as binding, these shall be understood to be plus/minus 5 working days. The delivery period shall not commence until all specifications relevant for production have been clarified. Any delivery dates agreed prior to complete clarification shall be extended by the period of clarification plus 5 working days.

(2) If the Seller is unable to meet binding delivery deadlines for reasons for which it is not responsible (non-availability of the service), it shall inform the Buyer of this without delay and at the same time inform it of the expected new delivery deadline. If the service is also not available within the new delivery period, the Seller shall be entitled to withdraw from the contract in whole or in part; the Seller shall immediately reimburse any consideration already paid by the Buyer. Non-availability of the performance shall be deemed to have occurred, for example, in the event of late delivery by a supplier of the Seller, if the Seller has concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, e.g. due to force majeure, or if the Seller is not obliged to procure in the individual case.

(3) In the event of delays in delivery and performance due to force majeure, including natural disasters, industrial action at the Seller's premises, unrest at the place of production or place of delivery, health emergencies, including the consequences of pandemic crises, as well as official measures, even if they occur at the Seller's suppliers or their sub-suppliers, the delivery period shall be reasonably extended for the duration of the event of force majeure. The event of force majeure or other disruption shall be notified to the other party in each case without delay. If delivery becomes impossible due to an event of force majeure, the Seller's obligation to perform as well as the Buyer's obligation to provide consideration shall lapse and the Seller shall not be obliged to compensate the Buyer. If the Buyer proves that subsequent performance is of no interest to it as a result of the delay, it may withdraw from the contract without incurring any liability for damages.

(4) If the impediment lasts longer than three months, both parties shall be entitled, after setting a reasonable deadline, to withdraw from the part of the contract not yet fulfilled. Insofar as claims for damages exist beyond this in the event of the Seller's fault, § 10 shall apply. The Seller's statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or supplementary performance), shall remain unaffected.

(5) The occurrence of the Seller's default in delivery shall be determined in accordance with the statutory provisions. In any case, however, a warning by the Buyer shall be required. If the Seller is in default with its performance, the Buyer may, if it proves that it has suffered damage as a result thereof, claim compensation for each full week of default of 0.25% each, but in no case more than a total of 2.5% of the price for that part of the delivery with which the Seller is in default. Any further claims shall be excluded unless the Seller is guilty of intent or gross negligence or in the event of a case for which the Seller is also liable for simple negligence pursuant to § 10.1.

(6) The Seller shall be entitled to make partial deliveries and partial performance at any time, provided that this is objectively reasonable for the Buyer, taking into account its interests.

(7) If transport bundles and/or containers and/or packaging are provided by the Seller, they shall remain the property of the Seller even after delivery and shall be returned to the Seller no later than three months after the delivery date. After the expiry of three months from delivery, the Seller shall be entitled to charge for the bundles and packaging at the clearing prices stated on the order confirmations, but at least at the full replacement cost. The same shall apply if the bundles/containers or packaging are damaged at the Buyer's premises.

(8) Reasonable excess or short deliveries up to a maximum of plus/minus 10 % of the order quantity, which are customary in the industry, are permissible. Excess and short deliveries shall then be added or deducted in proportion to the agreed order quantity as an excess or short price

(9) Insofar as the object of the Seller's performance is the production of a work, the statutory provisions of the law on contracts for work and services shall apply to the acceptance with the proviso that in the case of § 640 para. 2 BGB (German Civil Code) the setting of a deadline of 5 working days shall be deemed reasonable. The tacit acceptance of the work product is not excluded.

§ 5 Transfer of risk

Unless otherwise agreed, the Seller shall deliver ex works the Seller's manufacturing plant (EXW). This is also the contractual place of performance.

(2) If, in deviation from § 5.1, shipment of the goods to the Buyer or a third party designated by the Buyer has been agreed, the risk of accidental loss and accidental deterioration of the delivery item shall pass to the Buyer at the latest when the delivery item is handed over to the forwarding agent, carrier or other person designated to carry out the shipment. This shall also apply if partial deliveries are made or the Seller has assumed the transport costs. If dispatch or handover is delayed due to a circumstance caused by the Buyer, the risk shall pass to the Buyer from the day on which the Seller is ready to dispatch the goods and has notified the Buyer of this fact.

(3) If the Buyer is in default of acceptance of the delivery item, fails to cooperate or delays delivery for other reasons for which the Buyer is responsible, the Seller shall be entitled to store the goods or have them stored at the Buyer's expense and to claim any other additional expenses. In the event of storage by the Seller, the storage costs including necessary transport costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week, but not more than a total of 2.5%. We reserve the right to claim and prove higher or lower storage costs and to claim further damages. However, the lump sum shall be offset against further monetary claims due to storage costs.

The statutory claims of the Seller (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected. In particular, the Seller shall have the rights under Section 373 (2) of the German Commercial Code (HGB) (authority, after prior warning, to have the goods sold by public auction or, if the goods have a stock exchange or market price, after prior warning, to effect the sale by private agreement by a commercial broker publicly authorised to make such sales or by a person authorised to hold public auctions at the current price).

(4) The Seller shall insure the consignment against theft, breakage, transport, fire and water damage or other comparable risks only at the express request of the Buyer and at the Buyer's expense.

§ 6 Contractual quality; Obligation to give notice of defects; Warranty

(1) The contractual quality of the goods shall be determined in accordance with the specifications and drawings provided by the Buyer as well as the technical standards and specifications representing the generally accepted rules of engineering. If the specifications or other requirements of the Buyer conflict with the technical standards or requirements representing the generally accepted rules of engineering, the specifications and requirements of the Buyer shall take precedence. Insofar as the Parties have agreed on a quality of the object of sale, objective requirements for the object of sale shall not apply in this respect.

(2) The Buyer's rights on account of a defect shall be excluded if the defect is attributable to the material supplied or provided by the Buyer. The Seller shall not be obliged to inspect the material in this respect.

(3) The Buyer shall inspect the delivered goods immediately after delivery at the Buyer's premises or at the premises of the third party designated by the Buyer with due commercial care, insofar as this is feasible in the course of the Buyer's business. Apparent defects of the packaging as well as apparent transport damages can only be claimed immediately after delivery of the goods and shall be confirmed at least in text form by the forwarding agent, carrier or other person designated to carry out the shipment. Defects detected during the examination carried out shall be notified immediately. If a defect becomes apparent at a later date, the Seller shall be notified thereof immediately after its discovery. In the event of non-compliance with the statutory obligations to inspect and/or give notice of defects, the goods shall be deemed to have been approved with regard to the defect, unless the Seller has fraudulently concealed the defect. The notice of defect shall be given at least in text form. The timely dispatch of the notice shall be sufficient to preserve the rights of the Buyer.

(4) If the delivered goods are defective (§ 437 BGB) and if the Buyer was not aware of the defect at the time of conclusion of the contract or was not aware of the defect due to gross negligence (§ 442 BGB) and if the goods are not deemed to have been approved as a result of non-compliance with the statutory duties of inspection and notification (§§ 377, 381 HGB), cf. § 6.3, the Seller shall initially be entitled, at its own choice and discretion, either to rectify the defect or to deliver defect-free goods to the Buyer (subsequent performance). The Seller may refuse subsequent performance if it involves disproportionate costs. The right of the Seller to refuse performance insofar as this requires an effort which, taking into account the content of the contractual obligation and the principles of good faith, is grossly disproportionate to the Buyer's interest in performance, shall remain unaffected. Within the scope of the statutory warranty obligation, the Seller shall bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs. The Seller shall be entitled to make subsequent performance dependent on the Buyer paying the agreed purchase price. However, the Buyer shall be entitled to withhold a reasonable part of the purchase price. In the event of a replacement delivery, upon request the Buyer shall return the defective goods to the Seller. The Buyer shall give the Seller the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes.

Claims of the Buyer for reimbursement of expenses pursuant to § 445a para. 1 BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB).

(5) If the subsequent performance fails, the Buyer may withdraw from the contract or reduce the purchase price after the unsuccessful expiry of a reasonable period to be set by him. If the defect is not substantial or if the product has already been sold, processed or redesigned, the buyer shall only be entitled to the right of reduction. For possible claims for damages, § 10 shall apply.

(6) In the event of a risk to operational safety or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from the Seller of the expenses objectively necessary for this purpose. The Seller shall be notified immediately of any such self-remedy, if possible in advance. The right of self-execution shall not apply if the Seller would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

(7) Warranty claims and claims for damages of the Buyer due to material defects and defects of title shall become statute-barred one year after delivery of the goods, irrespective of the legal basis on which the claims are based.

The above shortening of the statutory limitation periods shall not apply:

(a) in the event that the Seller has fraudulently concealed the defect,

(b) to claims based on intent and gross negligence, as well as claims based on culpable breach of a essential contractual obligation (as defined in § 10.1),

(c) for claims based on defects in a building or defects in goods which have been used in accordance with their customary use for a building and have caused the defectiveness of the building or a work the success of which consists in planning or supervision services for a building,

(d) for claims based on the assumption of a guarantee,

(e) for claims due to injury to life, body or health,

(f) for claims under the Product Liability Act,

(g) for recourse claims based on the provisions of the sale of consumer goods (§§ 445a, 445b BGB), as well as

(h) for claims due to defects which consist in a right in rem of a third party, on the basis of which the surrender of the object of sale can be demanded, or in another right which is registered in the land register.

(8) The shortening of the statutory limitation periods applicable to claims based on material defects and defects of title pursuant to § 6.7 shall apply mutatis mutandis to competing contractual and non-contractual claims for damages of the Buyer based on a defect in the delivered items.

Insofar as the limitation of claims against the Seller is shortened in accordance with § 6.7, this shall apply mutatis mutandis to any claims of the Buyer against the Seller's legal representatives, employees, agents and vicarious agents which are based on the same legal grounds.

§ 7 Terms of Payment; Defence of Insecurity; Offsetting Restrictions

(1) Invoice amounts shall be paid within 30 days of receipt of the invoice and delivery without any deduction, unless otherwise agreed in writing. The date of receipt of payment by the Seller shall be decisive for the date of payment. Cheques shall only be deemed to be payment after final encashment. Bills of exchange shall only be accepted by express agreement and on account of performance. Discount charges shall be borne by the Buyer.

(2) As a rule, cash discounts are excluded. If agreed in an individual case, the Seller will grant a cash discount of 1 % on the invoice amount within 14 days of the invoice date. The cash discount relates exclusively to the Processing Price, not to the Metal Price.

(3) In the event of default in payment on the part of the Buyer, the Seller shall be entitled to charge interest from the due date at a rate of 9 percentage points above the respective statutory base interest rate, without the need for a prior reminder. The Seller reserves the right to assert a claim for damages in excess thereof and the statutory right of rescission. The seizure or repossession of delivered goods by the Seller shall only constitute a rescission of the contract if the Seller expressly declares the rescission at least in text form.

(4) The Seller shall be entitled to call in all outstanding claims against the Buyer after default in payment has occurred. We are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment or equivalent security. We shall declare a corresponding reservation at the latest with the order confirmation.

(5) If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that the Seller’s claim to the purchase price is at risk due to the Buyer's inability to pay, Seller shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). The same shall apply in the event that it is no longer possible to insure the del credere risk with the Seller's insurer for the services to be delivered. In the case of contracts for the manufacture of unjustifiable items (custom-made products), Seller may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

(6) The Buyer shall only have a right of set-off if the according counterclaims have been acknowledged, legally established or undisputed by the Seller. Furthermore, he shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. The defence of non-performance of the contract shall remain unaffected. However, the Buyer shall not be entitled to arbitrarily offset bonuses in the form of credit balances voluntarily credited to him on the basis of certain contractual relationships with the Seller. The settlement of bonuses shall be carried out exclusively by the Seller. The unauthorised offsetting of bonuses by the Buyer constitutes a breach of contract which gives rise to interest claims by the Seller without the need for a separate reminder.

§ 8 Retention of Title

(1) The Seller only delivers subject to retention of title. This shall also apply to all future deliveries as well as to claims arising from contracts concluded at the same time or at a later date, even if the Seller does not expressly refer to this.

(2) The Seller retains title to the goods delivered by him until all claims arising from the purchase contract have been paid in full. This shall also apply if individual or all claims of the Seller have been included in a current account and the balance has been settled and recognised.

(3) Pledges and transfers of ownership by way of security are not permissible. As long as ownership has not yet been transferred, the Buyer shall immediately notify the Seller and the third party in writing if the delivered goods are pledged by a third party or are subject to other interventions by third parties. Insofar as the third party is not able to reimburse the Seller for the court and out-of-court costs of an action pursuant to § 771 of the German Code of Civil Procedure (ZPO) (or a corresponding action to defend against execution under any other law), the Buyer shall be liable for the loss incurred by the Seller.

(4) The Buyer shall be entitled to resell the delivered goods in the ordinary course of business. The Buyer hereby assigns to the Seller the Buyer's claims arising from the resale of the delivered goods in the amount of the final invoice amount agreed with the Seller (including value added tax). This assignment shall apply irrespective of whether the delivered goods have been resold without or after processing. The Buyer shall remain authorised to collect the claim even after the assignment. The authority of the Seller to collect the claim himself shall remain unaffected. However, the Seller shall not collect the claim as long as the Buyer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed, the Buyer has suspended payments or a case of § 8.5 exists. However, the Buyer is obliged to inform the Seller immediately in writing about the sale of the assigned claims.

(5) The processing or transformation of the delivered goods by the Buyer shall always be carried out in the name of and on behalf of the Seller. In this case, the expectant right of the Seller to the delivered goods and the transformed object shall continue. If the delivered goods are processed with other objects not belonging to the Seller, the Seller shall acquire co-ownership of the new object in the ratio of the objective value of the delivered goods to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the Buyer's item is to be regarded as the main item, it shall be deemed agreed that the Buyer transfers co-ownership to the Seller on a pro rata basis and shall keep the sole ownership or co-ownership thus created in safe custody for the Seller. In order to secure the Seller's claims against the Buyer, the Buyer also assigns to the Seller such claims against a third party as accrue to the Buyer as a result of the combination of the delivered goods with real property; the Seller hereby already accepts this assignment.

§ 9 Returns

(1) If the Seller has to carry out the transport, returns - including spools and metal frames - shall only be carried out by the forwarding agent commissioned by the Seller. Deviations are only possible after prior agreement by telephone, in text form or in writing.

(2) If means of shipment (e.g. spools, metal frames) were sold by the Seller to the Buyer and the Buyer was granted a return delivery option for these means of shipment (usually against a credit note in the amount of the original invoice amount), this return delivery option must be exercised by the Buyer no later than 3 years after delivery. In the event of damage to the means of shipment, the Seller is entitled to refuse the return delivery respectively credit note.

§ 10 Liability; Withdrawal of the Buyer

(1) Subject to the provisions of § 10.2, the Seller shall only be liable for contractual, non-contractual or other claims for damages, irrespective of the legal grounds, in the event of intent and gross negligence. In addition, the Seller shall also be liable in the case of simple negligence for damages arising from the breach of an essential contractual obligation, i.e. an obligation the fulfilment of which is a prerequisite for the proper performance of the contract and the fulfilment of which the Buyer may therefore regularly rely on. Insofar as the Seller is not guilty of intentional breach of duty, the liability for damages shall, however, be limited to the foreseeable, typically occurring damage.

(2) The exclusions and limitations of liability in § 10.1 shall not affect claims based on injury to life, limb or health, claims under the Product Liability Act, statutory liability under a right of recourse in the event of delivery of the goods to a consumer pursuant to §§ 445a, 445b of the German Civil Code (BGB), claims based on fraudulent intent on the part of the Seller or claims based on a breach of a warranty assumed by the Seller.

(3) Sections 10.1 and 10.2 shall apply mutatis mutandis if the Buyer demands compensation for useless expenditure instead of a claim for damages in lieu of performance.

(4) Insofar as the Seller's liability for damages is excluded or limited, the exclusion or limitation of liability shall apply equally to the benefit of the Seller's employees, workers, representatives, vicarious agents and assistants.

The buyer may only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect if we are responsible for the breach of duty. A discretionary right of termination on the part of the Buyer (in particular in accordance with §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

§ 11 Infringement of third party rights due to specifications or requirements of the Buyer; indemnity obligation

(1) If the Seller manufactures goods according to specifications, samples or other requirements of the Buyer, the Seller shall not be liable for the infringement of industrial property rights by the goods concerned if and to the extent that the infringement of the industrial property right is attributable to specifications or other requirements of the Buyer. The same shall apply if the Buyer uses the Seller's goods outside the contractually agreed purpose of use or outside the contractually agreed geographical area and the infringement of the industrial property right is attributable to the use of the product outside the contractually agreed purpose of use or outside the contractually agreed geographical area.

(2) In the cases referred to in § 11.1, the Buyer shall fully indemnify the Seller against any claims of third parties.

§ 12 Place of performance, place of jurisdiction, choice of law, contractual language

(1) The place of performance for the mutual rights and obligations shall be the Seller's registered office.

(2) The place of jurisdiction for any disputes arising from the business relations between the Seller and the Buyer shall be, at the Seller's option, the courts of the district in which the Seller has its registered office.

(3) The formal and substantive law of the Federal Republic of Germany shall apply exclusively to the contractual relations between the Seller and the Buyer, excluding the UN Convention on Contracts for the International Sale of Goods.

(4) The sole binding language of the contract shall be German. If a contract is translated into several languages, the German version alone shall always be binding in the event of any doubt as to interpretation.

§ 13 Final Provisions

Should individual provisions of these General Terms and Conditions of Business and Delivery be invalid, this shall not affect the validity of the remaining provisions. Insofar as the contract or these General Terms and Conditions of Business and Delivery should contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Business and Delivery if they had been aware of the loophole.

April 2024