B2B Terms and Conditions of Nelsons GmbH

§ 1 Scope of application

(1) These General Terms and Conditions (GTC) apply to all our business relationships with our customers ("Buyer"). The GTC only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.

(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers. Unless otherwise agreed, the GTC shall also apply to all future contracts and deliveries without us having to refer to them again in each individual case.

(3) Our General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if the buyer refers to his general terms and conditions in the context of the order and we do not expressly object to them.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information in our order confirmation shall take precedence over the GTC. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

(5) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

§ 2 Conclusion of contract

(1) Our offers are subject to change and non-binding.

(2) The order of the goods by the buyer, which can be made in writing, by fax, by e-mail or by telephone, is deemed to be a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 3 weeks of its receipt by us.

(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.

§ 3 The goods

(1) All descriptions and illustrations contained in the Seller's catalogues, price lists and advertisements or otherwise communicated to the Buyer are intended only to give a general idea of the goods described therein.

(2) If the seller has issued a sample or specimen of the goods to the buyer, this is only done to give the buyer the opportunity to assess the goods to be delivered in general and not to inform the buyer bindingly about the quality of the goods and to agree a sale by sample / sale by specimen.

(3) The Seller's employees and any agents are not authorised to make any representation or give any advice or recommendation concerning the Goods unless confirmed in writing by a duly authorised representative of the Seller. By entering into the Contract, the Buyer acknowledges that it is not relying on any representation, advice or recommendation which has not been so confirmed and waives any claim for breach of such representation, advice or recommendation (save that nothing in these Conditions shall limit or exclude the Seller's liability for fraudulent misrepresentation or wilful misconduct).

(4) The seller may have affixed warning notices to the outside of the goods. In such cases, Buyer is prohibited from altering, erasing or obscuring such warnings in any way. Buyer agrees, to the extent permitted by law, to indemnify Seller against any fines, penalties, claims, demands, damages, losses, liabilities, costs or expenses (including, but not limited to, attorneys' fees and disbursements) arising out of or in connection with Buyer's breach of this clause § 3(4) . Nothing contained herein shall prevent Buyer from adding such additional warnings or disclaimers as may be appropriate and/or required by law for Buyer's resale or use of the Goods, provided Buyer gives Seller prior written notice of such changes.

§ 4 Delivery, transfer of risk, default of acceptance, subcontractors

(1) Delivery is ex warehouse, which is also the place of fulfilment for the delivery and any subsequent fulfilment. At the request and expense of the buyer, the goods will be dispatched to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.

(2) The Buyer shall ensure that its premises are at all times safe for the Seller's vehicles and for the Seller's employees or agents carrying out the delivery and that the Buyer provides sufficient and adequate storage space for each delivery. The Buyer shall provide such equipment and labour as may be necessary for the delivery of the Goods to the storage area and shall give the Seller all assistance in making the delivery. The Seller reserves the right to refuse to allow its drivers and hauliers to enter any premises nominated by the Buyer if, in the opinion of the driver or haulier, the conditions of the premises present a danger to the vehicles, the Goods or to persons or property.

(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by despatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person otherwise appointed to carry out the despatch. If the buyer is in default of acceptance, this shall be deemed equivalent to handover.

(4) If the Buyer is in default of acceptance, fails to co-operate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).

(5) The Seller reserves the right to fulfil its obligations through agents or authorised dealers or to subcontract all or part of its obligations.

(6) The Buyer is prohibited from directly selling the Products, including through online platforms, in territories outside of Germany that are within the EEA or Switzerland and have been allocated by the Seller exclusively to other distributors or resellers, or exclusively designated for the Buyer’s direct sale operations.

(7) The Buyer is strictly prohibited from selling the Products, whether direct or indirect, including through online platforms, in territories outside of the EEA and Switzerland.

§ 5 Delivery time, delivery delays, partial deliveries

(1) Deadlines and dates for deliveries and services promised by the seller are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. If despatch has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport, unless expressly stated otherwise by us.

(2) The Seller may - without prejudice to its rights arising from the Buyer's default - demand from the Buyer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Buyer fails to fulfil its contractual obligations to the Seller.

(3) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, official measures or the failure of suppliers to deliver or to deliver correctly or on time despite a congruent hedging transaction concluded by the Seller) for which the Seller is not responsible. If such events make delivery or performance significantly more difficult or impossible for the Seller and the hindrance is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the Buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the Seller.

(4) Where it is agreed that the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and the Seller's failure to make a particular delivery or any claim by the Buyer in respect of a particular delivery shall not entitle the Buyer to refuse to accept further deliveries or to treat the contract as a whole as repudiated unless expressly agreed otherwise.

(5) Even without an express agreement on partial deliveries, the Seller is entitled to deliver the goods in one or more consignments, provided this is reasonable for the Buyer in the respective case and nothing else has been expressly agreed.

(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, the Seller's liability for damages shall be limited in accordance with§ 11 of these General Terms and Conditions.

§ 6 Prices and terms of payment

(1) Unless otherwise agreed in individual cases, our current prices at the time the contract is concluded shall apply, plus statutory VAT and any other taxes, customs duties or government levies on the goods. For orders with a net order value of less than €200, a minimum quantity surcharge of €25.00 will be levied. This surcharge serves to cover the additional costs of processing smaller orders. Please note that this surcharge will be added to the total amount and is non-refundable

(2) The purchase price is due and payable within 10 days of invoicing and delivery or acceptance of the goods. Participants in the direct debit procedure receive a 14-day 2% discount. However, we are authorised at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation with the order confirmation at the latest.

(3) The buyer shall be in default upon expiry of the above payment deadline. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim against merchants for commercial maturity interest remains unaffected.

(4) The purchaser shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed.

(5) If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardised by the Buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract.

§ 7 Online sales

(1) Buyer is not permitted to sell the Goods purchased from Seller on third party online marketplaces (including but not limited to Amazon) unless Seller gives its express prior written consent to do so. The Buyer shall also use its best endeavours to ensure that its customers do not engage in such sales and the Buyer hereby undertakes to instruct the relevant customer to cease such sales immediately upon becoming aware of such sales.

(2) The seller is authorised to sell the goods online himself.

§ 8 Retention of title

(1) Until full payment of all current and future claims of the seller arising from the purchase contract and an ongoing business relationship (secured claims), the seller retains title to the goods sold.

(2) Until title to the Goods has passed to the Buyer, the Buyer shall (i) hold the Goods on trust as bailee for the Seller; (ii) store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily recognisable as the property of the Seller; (iii) not to destroy, deface or obscure any marking or packaging of the Goods; and (iv) to maintain the Goods in satisfactory condition and (v) to insure them in favour of the Seller at their full price against all risks to the reasonable satisfaction of the Seller. Upon request, the Buyer shall promptly produce to the Seller a valid policy of insurance and provide the Seller with all reasonable information relating to the Goods.

(3) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must inform the Seller immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties have access to the goods belonging to the Seller (e.g. seizures).

(4) In the event of breach of contract by the Buyer, in particular non-payment of the purchase price due, the Seller shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods does not at the same time include a declaration of cancellation; rather, the seller is entitled to demand only the return of the goods and to reserve the right to cancel the contract. If the buyer does not pay the purchase price due, the seller may only assert these rights if he has previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.

(5) The Buyer irrevocably authorises the Seller, its agents and employees to enter any premises where the goods are or may be stored at any time to inspect them or, if the Buyer's right to possession has lapsed, to recover them. If the seller is unable to determine whether any goods are the goods for which the buyer's right to possession has lapsed, the buyer shall be deemed to have sold all goods purchased from the seller to the buyer in the order in which they were invoiced.

(6) Until revocation in accordance with c) below, the Buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

a) The retention of title shall extend to the full value of the products created by processing, mixing or combining the sold goods, whereby the seller shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, the seller 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 as to the goods delivered under retention of title.

b) The Buyer hereby assigns to the Seller by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of any co-ownership share of the Seller in accordance with the above paragraph. The Seller accepts the assignment. The obligations of the Buyer stated in § 8(3)shall also apply in consideration of the assigned claims.
c) The buyer remains authorised to collect the claim alongside the seller. The Seller undertakes not to collect the claim as long as the Buyer fulfils his payment obligations to the Seller, there is no deficiency in his ability to pay and the Seller does not assert the retention of title by exercising a right in accordance with § 8(4) . If this is the case, however, the Seller may demand that the Buyer informs him of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, the Seller shall also be entitled to revoke the Buyer's authorisation to resell and process the goods subject to retention of title.

d) If the realisable value of the securities exceeds the Seller's claims by more than 10%, the Seller shall release securities of the Seller's choice at the Buyer's request.

(7) Upon termination of the contract for any reason whatsoever, the rights of the seller contained in this condition shall remain in force.

§ 9 Intellectual property

The Buyer acknowledges that all intellectual property rights (including but not limited to patents, copyrights, rights in trade marks, utility models, designs etc.) subsisting in or in relation to the Goods shall vest in the Seller and that nothing in these Conditions shall be construed as constituting an assignment or licence in whole or in part of any such intellectual property rights. The Buyer will not seek to oppose or infringe any such intellectual property and will not assist any other party to do so.

§ 10 Claims for defects

(1) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery), unless otherwise specified below. In all cases, the statutory provisions on the sale of consumer goods (§§ 474 ff. BGB) and the rights of the Buyer arising from separately issued guarantees shall remain unaffected.

(2) In principle, we are not liable for defects that the buyer is aware of or is grossly negligent in not being aware of when the contract is concluded (§ 442 BGB). Furthermore, the Buyer's claims for defects presuppose that he has fulfilled his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within seven (7) working days of delivery and defects not recognisable during the inspection within the same period from discovery. If the Buyer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions.

(3) If the delivered item is defective, we may initially choose whether to provide subsequent fulfilment by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). If the type of subsequent fulfilment chosen by us is unreasonable for the buyer in the individual case, he may reject it. Our right to refuse subsequent fulfilment under the statutory conditions remains unaffected.

(4) We are entitled to make the subsequent fulfilment owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.

(5) The Buyer shall give us the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us at our request in accordance with the statutory provisions; however, the Buyer shall not be entitled to return the item.

(6) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions and these GTC if a defect actually exists. Otherwise, we may demand reimbursement from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect if the Buyer knew or could have recognised that there was in fact no defect.

(7) If a reasonable deadline to be set by the buyer for subsequent fulfilment has expired without success or is dispensable in accordance with the statutory provisions, the buyer 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, there is no right of cancellation.

(8) Claims by the buyer for reimbursement of expenses pursuant to Section 445a (1) BGB are excluded unless the last contract in the supply chain is a sale of consumer goods (Sections 478, 474 BGB).

(9) Claims of the buyer for damages or reimbursement of futile expenses (§ 284 BGB) shall only exist in accordance with the following§ 11 and§ 12 , even if the goods are defective.

§ 11 Other liability

(1) Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in the event of wilful intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), for

a) for damages resulting from injury to life, limb or health,

b) for damages arising from the breach of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from § 11(2)shall also apply to third parties and in the event of breaches of duty by persons (including in their favour) whose fault we are responsible for in accordance with statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act.

(4) The Buyer 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. A free right of cancellation of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

§ 12 Statute of limitations

(1) Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

(2) Special statutory provisions on the statute of limitations remain unaffected (in particular § 438 Para. 1 No. 1, Para. 3, §§ 444, 445b BGB).

(3) The above limitation periods under sales law also apply to contractual and non-contractual claims for damages by the buyer, unless the application of the regular statutory limitation period would lead to a shorter limitation period in individual cases. Claims for damages by the buyer in accordance with § 11(2)p. 1 and p. 2 a) (intent, gross negligence, injury to life, limb or health) and in accordance with the Product Liability Act shall lapse exclusively in accordance with the statutory limitation periods.

§ 13 Compliance: environmental, social and governance standards

(1) General clauses:
a) The contracting parties acknowledge their joint intention to minimise their impact on the environment and climate change when fulfilling their obligations under the contractual relationship and these GTC.
b) The Buyer undertakes to conduct its business with due care, in an efficient and environmentally sound manner and in accordance with applicable laws, including applicable environmental laws, standards and guidelines, and to ensure that all its activities are carried out in accordance therewith.
c) The parties shall consider the ongoing environmental and climate impacts of contract fulfilment and plan to mitigate these impacts where appropriate and record all decisions in writing.
d) Subject to these GTC and applicable laws, Seller may/shall share environmental data, best practices and industry expertise with Buyer to minimise environmental and climate change impacts.
e) The Buyer shall ensure that each of its subcontractors is bound in writing to terms and conditions equivalent in all respects to those set out in this § 13
f) Inspection Clause and Audit. Buyer agrees that Seller or its authorised representative may, from time to time during the term of this Agreement, upon reasonable notice, inspect and audit Buyer's records to assess Buyer's compliance with this§ 13 . Buyer shall provide Seller with any assistance that Seller reasonably requests for the purpose of inspecting and auditing Buyer's records in accordance with this§ 13 .

(2) Cancellation rights:
a) If the Buyer's environmental practices or negative environmental impacts may bring the Seller's reputation into disrepute because they conflict with the Seller's respective environmental policy objectives, this shall be deemed a material breach of this§ 13 and shall entitle the Seller to terminate the contract.
b) If the Buyer persistently and substantially acts in a manner which, in the opinion of the Seller, justifies the assumption that the Buyer's business operations or other behaviour are incompatible with good environmental practice and policy, this shall be deemed a material breach of these GTC and shall entitle the Seller to terminate the contract.

§ 14 Combating bribery and modern slavery

(1) Each party shall at all times in pre-contractual negotiations and in the exercise of its rights or performance of its obligations under these GTC ensure that it complies with all applicable laws, statutes, regulations and codes relating to anti-bribery and corruption, including, without limitation, the Bribery Act 2010 ("Anti-Bribery Laws"), and that it will not commit (or procure the commission of) any offence against any Anti-Bribery Law or do anything which would cause another party to commit an offence under any Anti-Bribery Law.

(2) The Buyer confirms that there is no slavery, servitude, forced or compulsory labour or human trafficking in its business or supply chain and it will comply with the Modern Slavery Act 2015 and will not do anything that would constitute an offence or cause the Seller to commit an offence under that Act.

(3) Any breach of this§ 14 by the Buyer shall be deemed a material breach of these GTC and shall entitle the Seller to terminate the contract for cause with immediate effect.

§ 15 Data protection

The contracting parties guarantee that they will comply at all times with the data protection regulations applicable to them, in particular the General Data Protection Regulation (GDPR), and undertake to continue to do so. All data processing is also carried out in accordance with the seller's privacy policy, which can be found at https://www.nelsons.com/de-de/footer/datenschutzerklaerung/.

§ 16 Storage and resale regulations

(1) When storing, displaying and selling the goods delivered to it, the Buyer shall observe the Seller's instructions and comply with all statutory or official requirements for the storage and use of the goods.

(2) The Buyer indemnifies the Seller against any liability for loss or damage which may arise as a result of any breach of this condition by the Buyer

§ 17 Confidentiality

The contract and its subject matter are confidential and may not be disclosed or used for any unauthorised purpose.

§ 18 Written form

(1) Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting of deadlines, notification of defects, cancellation or reduction) must be made in writing. Written form within the meaning of these GTC includes written and text form (e.g. letter, e-mail, fax).

(2) Additions and amendments to the agreements made, including these GTC, must be made in writing to be effective. With the exception of managing directors or authorised signatories, the Seller's employees are not entitled to make verbal agreements that deviate from the written agreement. Telecommunication, in particular by fax or e-mail, is sufficient to fulfil the written form requirement.

§ 19 Waiver

A waiver by the seller of rights arising from a breach of contract by the buyer is not to be regarded as a waiver of rights arising from another contractual provision or as a waiver of rights arising from a subsequent breach of contract.

§ 20 Final provisions

(1) These GTC and the contractual relationship between Nelsons GmbH and the purchaser shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Hamburg. However, in all cases we shall also be entitled to bring an action at the place of fulfilment of the delivery obligation in accordance with these GTC or an overriding individual agreement or at the Buyer's general place of jurisdiction. Mandatory statutory provisions on exclusive jurisdiction remain unaffected.

(3) The invalidity of individual provisions of these GTC shall not affect the validity of the remaining provisions. Insofar as the contract or these GTC 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 GTC if they had been aware of the loophole.