General Terms and Conditions of Sale: Königswarter & Ebell / Pure Battery Technologies
Version: 05/2025
1. Scope of Application
1.1These General Terms and Conditions of Sale ("GTCs") shall apply to all contracts between us and our customers for the sale of goods ("Goods") and the provision of services ("Services"), provided that the customer is an entrepreneur within the meaning of section 14 BGB (German Civil Code), a legal entity under public law, or a special fund under public law.
1.2These GTCs shall apply exclusively. Deviating, conflicting, or additional general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly consented to their application in writing. This consent requirement shall apply in any case, for example, even if the customer refers to its general terms and conditions within the scope of the order and we do not expressly object to it.
1.3These GTCs shall apply in the version valid at the time of the customer's order or, in any case, in the version last notified to the customer in text form as a framework agreement and for similar future contracts without our having to refer to them again in each case.
1.4Individual agreements (e.g., framework supply agreements) and information in our order confirmation shall precede these GTCs.
1.5References to the applicability of statutory provisions shall only be clarifying. Even without such clarification, the statutory provisions apply unless they are directly amended or expressly excluded in these GTCs.
1.6Legally relevant declarations and notifications by the customer concerning the contract (e.g., setting deadlines, notification of defects, withdrawal) must be made in writing. Legal formal requirements and further proof, particularly in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
1.7In the event of translations of these General Terms and Conditions into other languages, only the German version shall be legally binding. The English version is provided for convenience and informational purposes only and shall have no legal effect.
2. Formation of Contract
2.1We do not conclude contracts with consumers within the meaning of section 13 BGB (German Civil Code).
2.2The communications to the customer designated by us as "offers" are subject to change and non-binding. They represent an invitation to the customer to place orders.
2.3The order placed by the customer shall constitute a binding offer of contract. We may accept this contractual offer within two weeks of receipt.
2.4A contract shall only be concluded – also in current business transactions – if we accept the customer's order through an order confirmation. The order confirmation is decisive for the content of the respective contract.
2.5Any free right of termination of the customer is excluded. Section 648a BGB (German Civil Code) remains unaffected.
3. Product Information, Quality of the Goods, Ownership
3.1Documents that are part of our offer or our order confirmation (e.g., drawings, illustrations, technical data, references to standards, and information in advertising materials) do not constitute quality specifications, property warranties, or guarantees unless they are expressly designated as such in writing.
3.2Unless otherwise agreed, the Goods shall only be suitable for further processing and research.
3.3We reserve the right to minor deviations in the quality of the ordered Goods, particularly regarding the quantity, provided that the deviations are customary in the trade.
3.4We expressly reserve all property rights and copyrights to catalogs, technical documents, tools, molds, and other product descriptions or documents. The customer shall not make these documents and information available to third parties unless we expressly agree in writing.
4. Scope of Performance and Performance Risk
4.1We are only obliged to deliver from our stock unless expressly agreed otherwise in writing. In particular, the assumption of a procurement risk does not lie solely in our obligation to provide a good determined only by its type.
4.2We are entitled to make partial deliveries to a reasonable extent.
4.3In the event of call orders or default in acceptance by the customer, we may perform immediately, in particular, to procure the material required for the entire order and to manufacture and offer the entire order or to fulfill the order. Therefore, any change requests by the customer can no longer be considered after the order has been placed unless this has been expressly agreed upon in writing.
4.4The customer shall notify us in writing of any special requirements for our Goods or Services in good time before the conclusion of the contract.
5. Delivery Period and Delay in Delivery
5.1The delivery period shall be agreed upon individually or stated by us upon acceptance of the order. Otherwise, we shall notify the customer of the expected delivery period immediately as soon as we have the necessary information.
5.2The delivery period shall be deemed met if we have notified the customer that the Goods are ready for dispatch at the agreed time or within the agreed period. Deliveries before the expiry of the delivery period are allowed.
5.3Compliance with the delivery period is subject to clarification of all technical issues, in particular, timely receipt of all documents and information to be provided by the customer, as well as compliance with the agreed terms of payment and other obligations by the customer. If the prerequisites are unmet, the delivery period shall be extended accordingly unless we are responsible for the delay.
5.4If the delivery or performance period is exceeded for reasons for which we are responsible, the customer may, after the expiry of a reasonable grace period, withdraw from the contract concerning the part not yet performed. Any claims for damages are governed by section 12 of these GTCs.
5.5If we are unable to meet binding delivery deadlines for reasons for which we are not responsible ("non-availability of performance"), we shall inform the customer thereof without undue delay and, at the same time, notify the customer of the expected new delivery deadline. If the performance is also unavailable within the new delivery period, we may withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. Non-availability of the performance shall be deemed to exist, for example:
- a)in the event of late delivery by our supplier if we have concluded a congruent hedging transaction,
- b)in the event of other disruptions in the supply chain, for example, due to force majeure, or
- c)if we have not assumed the procurement risk.
5.6The occurrence of a delivery delay shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the customer shall be required.
5.7In the event of default in payment by the customer, we may assert a right of retention to further deliveries of Goods or Services.
5.8The customer's rights under section 12 of these GTCs and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance or subsequent performance), shall remain unaffected.
6. Delivery, Transfer of Risk, Default of Acceptance, Export Control
6.1Unless otherwise agreed, delivery is FCA (our registered office) Incoterms® 2020.
6.2If the customer is in default of acceptance, fails to cooperate, or delays our performance for other reasons for which the customer is responsible, we may demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For this purpose, a lump sum of 0.25% of the net price (delivery value) per commenced calendar week is due, starting with the delivery date or – in the absence of the delivery date – with the notification that the Goods are ready for shipment. The proof of more significant damage and our legal claims shall remain unaffected; however, the lump sum shall be credited against further claims for payment. The customer may prove that we have incurred no damage or that the damage is less than the lump sum.
6.3The customer must strictly comply with the applicable export control regulations. The direct or indirect resale of Goods or Services in countries or to companies and persons subject to export restrictions is strictly prohibited. In the event of resale, the customer shall provide us with written proof of the destination of the Goods or Services (end-use declaration) per the applicable export regulations before the resale.
7. Prices and Terms of Payment
7.1All prices are in EUR plus any applicable statutory value-added tax.
7.2We may adjust the agreed price to market conditions for Goods and Services delivered or provided later than four months after the conclusion of the contract or within the scope of a continuing obligation without any special agreement.
7.3The respective terms of payment are set out in our order confirmation. However, we may, at any time, also within an ongoing business relationship, make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation. The timeliness of payment shall be determined by the date the amount is credited to our account.
7.4Upon the expiry of the payment deadline, the customer shall be in default. During the default period, interest shall be charged on the price or remuneration at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. Concerning merchants, our claim to the commercial due date interest rate according to section 353 HGB (German Commercial Code) shall remain unaffected.
7.5A cash discount deduction requires a written agreement between the customer and us. An agreed cash discount deduction shall be calculated from our net claim. It shall only be permissible if all other liabilities from the customer's business relationship with us that are older than 30 days have been settled.
7.6The customer shall only be entitled to rights of set-off or retention to the extent that its claim is legally established, undisputed, or based on the same contractual relationship as ours.
7.7If, after the conclusion of the contract, it becomes apparent that our claim to payment of the price or remuneration is jeopardized by the customer's lack of ability to pay (e.g., by an application for the opening of insolvency proceedings), we may refuse performance in accordance with the statutory provisions and withdraw from the contract.
8. Force Majeure
8.1The ICC Force Majeure clause (long version) shall apply.
8.2The full text of the ICC Force Majeure Clause (Long Form) is available at www.iccwbo.org.
9. Hardship
9.1Each party is bound to perform its contractual duties even if events have rendered performance more onerous than could reasonably have been anticipated at the time of the conclusion of the contract.
9.2Notwithstanding section 9.1, where a party proves that:
- a)the continued performance of its contractual duties has become excessively onerous due to an event beyond its reasonable control (e.g., a significant change in market conditions, supply chain issues, international sanctions, considerable price increases, lockdowns, and other measures by the competent authorities, shortage of energy, material or staff, etc.) which it could not reasonably have been expected to have taken into account at the time of the conclusion of the contract; and that
- b)it could not reasonably have avoided or overcome the event or its consequences,
9.3Where section 9.2 applies, but where the parties have been unable to agree on alternative contractual terms as provided for in that section 9.2, either party is entitled to request the arbitrators to adapt the contract to restore its equilibrium or to terminate the contract, as appropriate.
10. Retention of Title
10.1We reserve title to the Goods we delivered until full payment of all present and future claims arising from the purchase contract and an ongoing business relationship ("Secured Claims").
10.2The Goods subject to retention of title ("Secured Goods") may not be pledged to third parties or assigned as security before full payment of the Secured Claims. The customer shall notify us in writing without undue delay if an application for the opening of insolvency proceedings is filed or as soon as third parties (e.g., seizures) seize our Secured Goods.
10.3If the customer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we may withdraw from the contract in accordance with the statutory provisions and/or demand the surrender of the Secured Goods based on the retention of title. The demand for a return does not simultaneously include the declaration of withdrawal; we may demand only the return of the Secured Goods and reserve the withdrawal right. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
10.4Until revoked in accordance with section 10.7, the customer shall be authorized to resell and/or process the Secured Goods in the ordinary course of business. In this case, the following provisions shall apply in addition.
10.5The retention of title shall extend to the products created by processing, mixing, or combining the Secured Goods at their total value, whereby we shall be deemed the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. In all other respects, the same shall apply to the resulting product and the Secured Goods.
10.6The customer hereby assigns to us by way of security any claims against third parties arising from the resale of the Secured Goods or the product in their entirety or the amount of our co-ownership share, if any, according to section 10.5. We accept the assignment. The obligations of the customer set out in section 10.2 shall also apply in respect of the assigned claims.
10.7The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim if the customer meets its payment obligations towards us, there is no deficiency in its ability to pay, and we do not assert the retention of title by exercising a right under section 10.3. If this is the case, however, we may demand that the customer immediately inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment. Furthermore, we may revoke the customer's authorization to sell further and process the Secured Goods in this case.
10.8If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer's request.
11. Warranty
11.1The manufacturer solely warrants the conformity of the products with the characteristics defined in the applicable product specifications, including the tolerances stated therein. Any further suitability of the product for a particular purpose or specific application intended by the customer is not warranted. It is the sole responsibility of the customer to verify and ensure that the product is suitable for its intended use.
11.2The customer's claims for defects are subject to the condition that the customer has complied with its statutory duties of inspection and notification according to §§ 377, 381 HGB. For Goods intended for installation or further processing, an inspection must occur immediately before processing. If a defect becomes apparent upon delivery, inspection, or later, the customer must notify us immediately in writing. In any case, obvious defects must be notified to us in writing within two working days of delivery, and defects that are not apparent upon inspection must be notified within the same period after discovery. If the customer fails to inspect the Goods and notify us of defects properly, our liability for the defect that was not notified in time or not properly notified is excluded in accordance with the statutory provisions. In the case of Goods intended for incorporation, attachment, installation, or further processing, this shall also apply if the defect only became apparent after the corresponding processing because of a breach of one of these obligations; in this case, the customer shall, in particular, have no claims for reimbursement of related costs ("removal and installation costs").
11.3If the delivered item is defective, we may choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the customer in the individual case, the customer may reject it. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
11.4We may make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer may retain a reasonable part of the purchase price in relation to the defect.
11.5The customer shall give us the time and opportunity required for the subsequent performance owed, particularly to hand over the Goods complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us at our request in accordance with the statutory provisions; however, the customer shall not have a claim for return. Subsequent performance shall not include the dismantling, removal, or disassembly of the defective item or the installation, fitting, or assembly of a defect-free item if we were not initially obliged to perform these services; claims of the customer for reimbursement of related costs ("dismantling and assembly costs") shall remain unaffected.
11.6We shall bear or reimburse the expenses necessary for inspection and subsequent performance, in particular transport, travel, labor, and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these GTCs if a defect is present. Otherwise, we may demand reimbursement from the customer for the expenses incurred due to the unjustified request to remedy the defect if the customer knew or could have recognized that there was no defect.
11.7If a reasonable period to be set by the customer for the subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, the customer has no right to withdraw.
11.8The place of subsequent performance is our registered office. Notwithstanding this, the location of the Goods may be the place of subsequent performance at our discretion.
12. Limitation of Liability
12.1In the event of a breach of our contractual and non-contractual obligations, we shall only be liable if we are responsible for the breach of obligation.
12.2Subject to statutory limitations of liability (e.g., diligence in own affairs; minor breach of duty), we shall be liable for damages in case of intent, gross negligence, and injury to life, body, or health.
12.3In the event of simple negligence, we shall not be liable for loss of profit, loss of use or production, damages to reputation, or consequential damages.
12.4The limitation of liability resulting from sections 12.1 to 12.3 shall also apply to third parties and to breaches of duty by persons (also in their favor) whose fault we are responsible for according to statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect, have assumed a guarantee for the quality of the Goods, or mandatory statutory provisions stipulate strict liability (e.g., customer claims under the German Product Liability Act).
12.5The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. Otherwise, the statutory requirements and legal consequences shall apply.
13. Limitation
13.1Notwithstanding section 438 para. 1 no. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title is one year from delivery. However, if acceptance has been agreed upon, the limitation period commences upon acceptance.
13.2If the Goods is a building or an object used for a building according to its customary use and has caused its defectiveness (building material), the limitation period is five years from delivery according to the statutory regulation provided by section 438 para. 1 no. 2 BGB (German Civil Code). Other special statutory provisions on the limitation period also remain unaffected, particularly in case of claims for restitution in rem of third parties as provided by section 438 para. 1 no. 1 BGB (German Civil Code) or in case of fraudulent intent on the seller's part as provided by section 438 para. 3 BGB (German Civil Code).
13.3The above limitation periods of the law on sales also apply to contractual and non-contractual customer's claims for damages based on a defect of the Goods unless the application of the regular statutory limitation period according to sections 195, 199 BGB (German Civil Code) would lead to a shorter limitation period in the individual case. Claims for damages by the customer under section 13.2 of these GTCs and the German Product Liability Act become time-barred exclusively according to the statutory limitation periods.
14. Confidentiality
14.1The customer undertakes to keep secret all of our trade secrets within the meaning of section 2 no. 1 GeschGehG (German Act on the Protection of Trade Secrets), which become known to it through the business relationship and to make them available exclusively to those persons who must necessarily be involved in the performance of the respective contract ("need to know") and only to the extent that they have also been obligated in advance to maintain secrecy correspondingly. Excluded from this obligation is such confidential information that:
- a)was demonstrably already known to the customer at the time of the conclusion of the respective contract or subsequently became known to the customer from a third party without violating a confidentiality agreement, statutory provisions, or official orders;
- b)are public knowledge at the time of conclusion of the respective contract or are made public after that, insofar as this is not based on a breach of this confidentiality agreement; or
- c)must be disclosed due to legal obligations or by court order or authority. To the extent permissible and possible, the customer obliged to disclose shall inform us in advance and allow us to take legal action against the disclosure.
14.2Disclosure of our trade secrets to third parties shall only be permitted with our written consent.
14.3During the term of the contract and for a period of two years after termination of the contract, the customer undertakes not to enter into any business relationships with our suppliers, manufacturers, or other business partners aimed at circumventing us in the business relationship.
14.4The customer agrees not to use any trade secrets that become known during the business relationship to exploit business opportunities to our disadvantage or to impair the business relationship between us and our business partners.
14.5The customer shall not exploit or imitate our trade secrets in any way outside the agreed purpose (in particular by way of so-called "reverse engineering") or have them used or imitated by third parties and, in particular, from applying for industrial property rights – particularly trademarks, designs, patents or utility models – based on these trade secrets.
14.6The confidentiality obligation shall continue to apply for the duration of the business relationship with the customer as well as for a period of five years after the termination of the business relationship, however, at the longest until the respective information has become generally known without a confidentiality agreement, statutory provisions or official orders having been violated.
14.7If and to the extent that trade secrets are no longer required for the agreed purpose or, at our request, even before that, the customer must immediately:
- a)return or demonstrably destroy all trade secrets, including reproductions and copies, at our discretion;
- b)return or demonstrably destroy, at our option, all other materials, including materials created by the customer itself, which contain our trade secrets or allow conclusions to be drawn about them; and
- c)confirm to us in writing that it has returned or destroyed our trade secrets in the manner described.
14.8The destruction of trade secrets shall be carried out most safely according to the current state of the art.
14.9If a separate confidentiality agreement applies between us and the customer, such agreement shall take precedence over the provisions of this section 14.
15. Applicable Law
15.1The law of the Federal Republic of Germany shall apply.
15.2The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
16. Arbitration
16.1All disputes arising out of or in connection with this contract, including any question regarding its existence, validity, breach, termination, or nullity, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with the said Rules.
16.2The seat of the arbitration shall be Hagen, Germany.
16.3The language of the arbitration shall be German.
16.4The applicable substantive law shall be the law of Germany.
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