TRION Battery GmbH: General Terms and Conditions of Sale - Business Customers

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1. Scope, Legal Form

These General Terms and Conditions of Sale (T&C) apply to all our business relationships with our customers (“Buyer”). The T&Cs apply only if the Buyer is a Business Customer (§ 14 BGB), a legal entity under public law or a special fund under public law.

The T&Cs apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§§433, 650 BGB). Unless otherwise agreed, the T&Cs in the version valid at the time of the Buyer’s order, or at least the last version communicated to the Buyer in text form, shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.

Our T&Cs apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer shall only become part of the contract if we have expressly agreed to their validity. This requirement for consent applies in all cases, including if we refer to the Buyer’s general terms and conditions during the order process and we do not expressly object.

Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information in our order confirmation take precedence over the T&Cs.

Legally relevant declarations and notifications of the Buyer with respect to the contract (e.g. setting deadlines, notice of defects, withdrawal or reduction) must be submitted in writing. Written form in the sense of these T&Cs includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and the requirement of further proof, in particular in the case of doubts about the legitimacy of the declarant, remain unaffected.

References to the applicability of statutory provisions are for clarification only. Even without such clarification, statutory provisions shall apply unless directly modified or expressly excluded in these T&Cs.

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2.Conclusion of Contract

Our offers are non-binding and subject to change. This also applies if we provide the Buyer with catalogues, technical documentation (e.g., drawings, plans, calculations, costings, references to DIN standards), other product descriptions, or documents – including in electronic form – over which we reserve ownership and copyright.

The Buyer’s order of the Goods constitutes a binding contractual offer. Unless otherwise indicated in the order, we are entitled to accept this contractual offer within 14 days of receipt.

Acceptance may be declared either in writing (e.g., by order confirmation) or by delivery of the Goods to the Buyer.

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3. Delivery Period and Delay

The delivery period is agreed individually or specified by us when accepting the order. If no such specification is given, the delivery period shall be approximately 3 weeks from the conclusion of the contract.

If we are unable to meet binding delivery deadlines for reasons beyond our control (unavailability of performance), we will inform the Buyer immediately and provide the expected new delivery period. If performance is still unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer will be reimbursed immediately. Unavailability of performance includes, for example, delayed self-supply by suppliers, disruptions in the supply chain due to force majeure, or if we are not obliged to supply the Goods in individual cases.

The date of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, a reminder from the Buyer is required.

The Buyer’s rights under §8 of these T&Cs and our statutory rights, particularly in the event of exclusion of performance obligations (e.g., due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

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4. Delivery, Transfer of risk, Acceptance, Default of Acceptance

Delivery is EXW (Ex Works, Incoterms 2020), which is also the place of performance for delivery and any subsequent performance. At the Buyer’s request and expense, the Goods will be shipped to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular the transport company, shipping method, packaging).

The risk of accidental loss and accidental deterioration of the Goods passes to the Buyer at the latest upon handover. In the case of a sale by dispatch, however, the risk of accidental loss and deterioration of the Goods, as well as the risk of delay, passes to the Buyer as soon as the Goods are delivered to the carrier, freight forwarder, or other person or institution designated to carry out the shipment. Where acceptance is agreed, this shall be decisive for the transfer of risk. Otherwise, the statutory provisions of contract law apply mutatis mutandis to acceptance. Handover or acceptance shall also be deemed to have taken place if the Buyer is in default of acceptance.

If the Buyer is in default of acceptance, fails to cooperate, or delays our delivery for reasons attributable to the Buyer, we are entitled to claim compensation for the resulting damage including additional expenses (e.g., storage costs). For this purpose, we charge a lump-sum compensation of 0.5% of the agreed price per calendar week, up to a maximum of 5%, or in the case of final non-acceptance up to a maximum of 10% of the agreed price, starting with the delivery period or – in the absence of a delivery period – with notification of readiness for dispatch of the Goods.

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Proof of greater damage and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the lump sum, however, is offset against further monetary claims. The Buyer is permitted to prove that no damage or only significantly less damage has occurred than the above lump sum.

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5. Prices and Payment Terms

Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract apply, EXW, plus statutory value-added tax.

In the case of a sale by dispatch (§4 Para. 1), the Buyer bears the transport costs EXW and the costs of any transport insurance requested by the Buyer. Unless we invoice the actual transport costs incurred in individual cases, a flat-rate transport charge (excluding transport insurance) of EUR 25.00 is deemed agreed. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer.

The purchase price is due and payable within 14 days from invoicing and delivery or acceptance of the Goods. However, we are entitled, even within an ongoing business relationship, to make delivery in whole or in part only against advance payment.

Upon expiry of the payment period, the Buyer is in default. The purchase price shall bear interest during the default period at the statutory default interest rate applicable at the time. We reserve the right to claim further damages for default. Our claim to commercial default interest (§353 HGB) remains unaffected.

The Buyer shall only have rights of set-off or retention to the extent that their claim is legally established or undisputed. In the event of defects in delivery, the Buyer’s counter-rights, particularly under §7 Para. 6 Sentence 2 of these T&Cs, remain unaffected.

If, after conclusion of the contract, it becomes apparent (e.g., by an application to open insolvency proceedings) that our claim to the purchase price is endangered by the Buyer’s lack of ability to perform, we are entitled under statutory provisions to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (§321 BGB). In contracts for the manufacture of non-fungible goods (custom-made products), we may declare withdrawal immediately; statutory provisions on dispensability of a deadline remain unaffected.

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6.Retention of Title

Until full payment of all present and future claims arising from the purchase contract and ongoing business relationship (secured claims), we retain ownership of the sold Goods.

Goods subject to retention of title may not be pledged to third parties or transferred as security before full payment of the secured claims. The Buyer must notify us immediately in writing if an application for insolvency proceedings is filed or if third parties (e.g., seizures) access the Goods belonging to us.

In the event of breach of contract by the Buyer, particularly non-payment of the due purchase price, we are entitled to withdraw from the contract or/and demand return of the Goods based on retention of title. The demand for return does not simultaneously constitute withdrawal from the contract; we are entitled to demand return of the Goods only and reserve the right to withdraw. If the Buyer does not pay the due purchase price, we may only assert these rights if we have unsuccessfully set the Buyer a reasonable deadline for payment or such deadline is unnecessary under statutory provisions.

The Buyer is, until revoked as per below (c), authorized to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
1. The retention of title extends to the products resulting from processing, mixing, or combining our Goods at their full value, whereby we are deemed the manufacturer. If, in the case of processing, mixing, or combining with third-party Goods, third-party ownership rights persist, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined Goods. Otherwise, the same applies to the resulting product as to the Goods delivered under retention of title.
2. The Buyer hereby assigns to us, as security, the claims against third parties arising from resale of the Goods or the product, in full or in the amount of our possible co-ownership share as per the above paragraph. We accept the assignment. The Buyer’s obligations stated in Para. 2 also apply to the assigned claims.
3. The Buyer remains authorized, alongside us, to collect the claims. We undertake not to collect the claims as long as the Buyer meets their payment obligations to us, there is no defect in their ability to perform, and we do not assert the retention of title by exercising a right as per Para. 3. If this is the case, however, we can demand that the Buyer disclose the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. Furthermore, in this case, we are entitled to revoke the Buyer’s authority to further resell and process the Goods subject to retention of title.
4. If the realizable value of the securities exceeds our claims by more than 10%, we shall, at the Buyer’s request, release securities of our choice.

7. Buyer's Claims for Defects

The Buyer’s rights regarding material and legal defects (including incorrect and short delivery as well as improper assembly/installation or defective instructions) are governed by statutory provisions, unless otherwise specified below. Statutory provisions on consumer sales (§§474 ff. BGB) and the Buyer’s rights from separately granted guarantees, particularly manufacturer’s warranties, remain unaffected.

The basis of our liability for defects is primarily the agreement made on the quality and intended use of the Goods (including accessories and instructions). Agreements on quality within this meaning include all product descriptions and manufacturer’s statements that are the subject of the individual contract or that were publicly disclosed by us (particularly in catalogues or on our website) at the time of conclusion of the contract. Where quality has not been agreed, statutory regulations determine whether a defect exists (§434 Para. 3 BGB). Public statements by the manufacturer or their agents, particularly in advertising or on the product label, take precedence over statements by other third parties.

For Goods with digital elements or other digital content, we only owe provision and, where applicable, updating of the digital content if expressly agreed as part of a quality agreement under Para. 2.

We are not liable for defects known to the Buyer at the time the contract was concluded or were unknown due to gross negligence (§442 BGB). Furthermore, the Buyer’s defect claims require that they have met their statutory inspection and notification duties (§§377, 381 HGB). For building materials and other Goods intended for installation or further processing, inspection must in any case take place immediately before processing. If a defect appears at delivery, inspection, or later, we must be notified immediately in writing. In any case, obvious defects must be reported within 6 working days of delivery, and non-apparent defects within the same period after discovery. If the buyer fails to carry out the proper inspection and/or report defects, our liability for defects that are not reported or not reported in a timely or proper manner is excluded in accordance with the statutory provisions. For Goods intended for installation, this applies even if the defect only became apparent after processing; in this case, the Buyer has no claims for reimbursement of related costs (“removal and installation costs”).

If the delivered item is defective, we may initially choose whether to remedy the defect (repair) or supply a defect-free item (replacement). Our right to refuse subsequent performance under statutory conditions remains unaffected.

We may make subsequent performance conditional upon the Buyer paying the due purchase price. The Buyer, however, may withhold a reasonable portion of the purchase price relative to the defect.

The Buyer must give us the time and opportunity required for subsequent performance, particularly by handing over the disputed Goods for inspection. In the case of replacement delivery, the Buyer must return the defective item to us in accordance with statutory provisions at our request; however, the Buyer has no right of return. Subsequent performance does not include removal or deinstallation of the defective item nor installation of a defect-free item, unless we were originally obliged to do so; the Buyer’s possible claims for reimbursement of related costs (“removal and installation costs”) remain unaffected.

We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, in accordance with the statutory provisions and these T&Cs, if a defect actually exists. Otherwise, we shall be entitled to 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 recognized that no defect actually existed.

If a reasonable period set by the buyer for subsequent performance has expired without success or is not required under statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price in accordance with statutory provisions. However, there is no right of withdrawal in the case of an insignificant defect.

The Buyer’s claims for reimbursement of expenses under §445a Para. 1 BGB are excluded unless the last contract in the supply chain is a consumer sale (§§478, 474 BGB) or a consumer contract for the provision of digital products (§§445c Sentence 2, 327 Para. 5, 327u BGB). The Buyer’s claims for damages or reimbursement of futile expenses (§284 BGB) also exist in the case of defects only in accordance with §§8 and 9 below.

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8. Other Liability

Unless otherwise specified in these T&Cs, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.

We are liable for damages – regardless of the legal basis – under fault-based liability for intent and gross negligence. In cases of simple negligence, we are liable – subject to statutory limitations of liability (e.g., care in own affairs, insignificant breach of duty) – only
1. for damages resulting from injury to life, body, or health,
2. for damages resulting from breach of a material contractual obligation (an obligation whose fulfilment enables proper performance of the contract in the first place and on which the contractual partner regularly relies and may rely); in this case, our liability is limited to compensation for foreseeable, typically occurring damages.

The liability limitations under Para. 2 also apply to third parties and in cases of breaches by persons whose fault we are responsible for under statutory provisions. They do not apply where a defect was fraudulently concealed, a guarantee of quality of the Goods was assumed, or for the Buyer’s claims under the Product Liability Act.

Due to a breach of duty not consisting of a defect, the Buyer may only withdraw or terminate if we are responsible for the breach of duty. The Buyer’s free termination right (especially under §§650, 648 BGB) is excluded. Otherwise, statutory requirements and legal consequences apply.

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9. Limitation Period

Contrary to §438 Para. 1 No. 3 BGB, the general limitation period for claims for material and legal defects is one year from delivery. Where acceptance is agreed, the limitation period begins with acceptance.

Statutory special regulations on limitation (particularly §438 Para. 1 No. 1, Para. 3, §§444, 445b BGB) remain unaffected.

The above limitation periods of sales law also apply to contractual and non-contractual claims for damages by the Buyer based on a defect in the Goods, unless the application of the regular statutory limitation period (§§195, 199 BGB) would lead to a shorter limitation period in the individual case. The Buyer’s claims for damages under §8 Para. 2 Sentence 1 and Sentence 2 (a) as well as under the Product Liability Act are subject solely to statutory limitation periods.

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10. Choice of Law and Jurisdiction

These T&Cs and the contractual relationship between us and the Buyer are governed by the law of the Federal Republic of Germany, excluding international unified law, in particular the UN Convention on Contracts for the International Sale of Goods.

If the Buyer is a merchant within the meaning of the Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our business headquarters in Fraunhoferstraße 3, 25524 Itzehoe. The same applies if the Buyer is an entrepreneur within the meaning of §14 BGB. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation under these T&Cs or a prior individual agreement or at the Buyer’s general place of jurisdiction. Statutory provisions, particularly regarding exclusive jurisdictions, remain unaffected.