General Terms and Conditions for Deliveries and Services of the ATLAS GmbH

(as of 03/23)

1. General provisions

1.1. All deliveries and services -present and future – including offers, consultations and other ancillary services (hereinafter jointly referred to as “deliveries”) shall be made exclusively on the basis of these General Terms and Conditions and our order confirmation. We do not recognize any terms and conditions that are contrary to or deviate from these General Terms and Conditions or from statutory provisions unless we have expressly agreed to their validity in writing. This shall also apply if we have not expressly objected to them or if we have carried out deliveries without reservation.

1.2. The assignment of the Purchaser’s claims against us is excluded.

1.3. We may accept a contract offer of the Customer within two (2) weeks after its submission. Our silence shall not constitute the conclusion of a contract. If our order confirmation is received by the customer late, the customer shall inform us thereof without un-due delay. If a confirmation letter from the Purchaser deviates from our order confirmation, the Purchaser shall specifi-cally highlight the changes as such.

1.4. Technical and operational data on weight, dimensions, other performance and consumption data in our bro-chures, drawings and publications are for general information only, unless referred to in our order confirma-tion; even in this case, however, this does not constitute a guarantee.

1.5. Neither a handwritten signature nor an electronic signature shall be required to comply with the written form, unless expressly stipulated otherwise in these General Terms and Conditions. Notifications by fax or e-mail shall be deemed to have been made in writing in the same way as other text forms.

2. Prices, Payment

2.1. Unless otherwise stated in our order confirmation, our prices shall be “FCA (Incoterms 2020)” as shown in the address specified in the order confirmation, excluding packaging, freight, insurance and other ancillary costs (storage, third-party inspection). Payments owed to us shall be made in EURO, unless otherwise agreed. Travel time will be charged as working time.

Instead of the additional charge for packaging costs, we may also demand the return of the packaging – sub-ject to the charging of user fees and deposits. Otherwise, the INCOTERMS shall apply in the version valid at the time of conclusion of the contract.

2.2. The agreed prices shall be subject to value added tax (VAT) at the respective statutory rate, which shall be shown separately on the invoice. For down payments and other payments to be made by the customer prior to the effectuation of our deliv-eries, for which the VAT liability arises for us at the time of receipt, we shall issue separate invoices with separate disclosure of the VAT. The value added tax shall be due for payment with the amount invoiced in each case. In the case of deliveries abroad, all taxes, customs duties and other public charges to be paid by us abroad shall be reimbursed by the customer.

2.3. Our claim for payment shall be due net (without deduction) immediately upon receipt of the invoice, unless otherwise stated in our order confirmation. Bank charges and expenses shall be borne by the customer. Invoices are sent electronically. In case of postal invoice dispatch ATLAS reserves the right to charge a fee.

2.4. The Purchaser shall only be entitled to a right of set-off insofar as the counterclaims are undisputed or have been finally determined by a court of law. The customer shall not be entitled to assert a right of retention if the counterclaim is not based on the same legal relationship.

2.5. We shall only accept discountable and properly taxed bills of exchange on account of payment if this has been expressly agreed. In case of acceptance of bills of exchange or checks, the debt shall only be dis-charged upon redemption. Discount charges and all costs incurred in connection with the redemption of the bill of exchange or check shall be borne by the customer.

2.6. In the event of default in payment or if our claims are jeopardized by a significant deterioration in the cre-ditworthiness of the customer, we shall be entitled to call in our claims or demand collateral, irrespective of the term of any bills of exchange. In such a case, we shall also be entitled to make any outstanding deliveries only against advance payment or against provision of adequate security.

2.7. Prices are subject to occasional fluctuations. We reserve the right to change our prices accordingly. This shall apply in the event that our price-forming factors, such as cost increases for raw materials/auxiliary materials and operating materials, other material costs as well as energy, operating and service costs, have increased in the period between conclusion of the contract and the delivery date. An adjustment shall be made with simultaneous consideration of cost reductions which have occurred in the same period. In the event of a price increase in accordance with sentence 1, we shall explain the nature and amount of the cost increases and reductions on request.

3. Delivery, Appointed Times, Obstacles to performance

3.1. Agreements shall only become binding upon our written confirmation (“Order Confirmation” or “Order Con-firmation”) and the return of the Order Confirmation countersigned by the Purchaser.

3.2. Unless otherwise stated in our order confirmation, the Customer shall be obliged to collect the delivery item within three (3) days after we have notified the Customer that the delivery item is ready for shipment, un-less this period is unreasonable for the Customer in the individual case.

3.3.The agreed delivery dates shall only apply on condition that all details of the order have been clarified in good time, in particular that all documents and approvals to be obtained by the Purchaser have been pro-vided, the possible release of drawings and the punctual receipt of any agreed down payment as well as the punctual provision of any agreed security for payment. A further prerequisite is the timely provision of preliminary construction and assembly services on the part of the customer, in particular the provision of electricity, gas, water and necessary auxiliary personnel free of charge for us.

3.4. The agreed dates for delivery shall be deemed to have been met upon notification of readiness for dispatch if the delivery items cannot be dispatched on time through no fault of our own.

3.5. If we are prevented from fulfilling our obligations due to the occurrence of unforeseen events which affect us or our suppliers or subcontractors and which we could not avert even with reasonable care in the circum-stances of the case, e.g. war, civil unrest, forces of nature, accidents, labour disputes, arbitrary acts by public authorities or politicians, other operational disruptions and delays in the delivery of essential operating ma-terials or primary materials, the dates shall be postponed by the duration of the hindrance and a reasonable start-up time, but at least by fourteen (14) calendar days. If the performance of our obligations becomes impossible or unreasonable for us due to the impediment, we may withdraw from the contract; the Purchaser shall have the same right if acceptance is unreasonable for him due to the delay or if the impediment lasts longer than three months.


4. Delay in Delivery, Delay in Acceptance

4.1. In the event of a delay in delivery, our liability shall be governed by the statutory provisions under the fol-lowing conditions: We shall not be liable for loss of profit, damages due to business interruption and other indirect damages. A defective delivery shall not be deemed to be a delayed delivery. In other respects, we shall be liable in the event of a delayed delivery up to a maximum of 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. The limitations according to this clause 4.1 shall not apply in case of intentional or grossly negligent conduct on our part or any other mandatory liability according to clause 10.5. Notwithstanding the other legal requirements, the customer may only withdraw from the contract if we are responsible for the delay in delivery. A change in the burden of proof is not associated with the above provisions.

4.2. If the customer culpably defaults on acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damages incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If a delivery is delayed by more than seven (7) days from our notification of readiness for dispatch at the re-quest of the Purchaser or for other reasons for which the Purchaser is responsible, we may thereafter charge the Purchaser storage costs for each month or part thereof in the amount of 0.5% of the purchase price of the delivery item concerned up to a maximum of 5% of the value of the delivery item. Only that part of a delivery which is affected by the delay shall be decisive.

4.3. Any further rights of the Purchaser arising from a delay in delivery, in particular claims for damages and re-imbursement of expenses, shall be excluded to the extent set forth in Clause 10.


5. Acceptance

5.1. If an acceptance has been agreed upon, it must be carried out immediately after the notification of readi-ness for the acceptance.

5.2. If special performance features of the delivery item have been agreed or if we request this, the Purchaser shall be obliged to accept the delivery item within one (1) week. This shall also apply with regard to self-contained partial deliveries and / or services.

5.3. If the acceptance is not carried out in time or not completely through no fault of our own, the acceptance shall be deemed to have taken place. Any costs caused by the Purchaser’s default in acceptance, such as insurance costs, shall be borne by the Purchaser.

5.4. The effect of an acceptance shall in any case occur when the delivery item is put into operation.

5.5. The Purchaser shall create the conditions necessary for the performance of an acceptance test. With the exception of our personnel costs, the purchaser shall bear all costs associated with the acceptance.

6. Transfer of Risk, Shipment

6.1. Delivery shall be made at the risk and expense of the Purchaser. The risk of accidental loss and accidental deterioration shall pass to the Purchaser upon handover to the forwarder or carrier, but no later than upon leaving our works, even in the case of carriage-paid delivery and even if partial deliveries are made.

6.2. The INCOTERMS in the version valid at the time of conclusion of the contract shall apply to the interpretation of the commercial clauses.

6.3. Unless otherwise agreed, the means and route of transport shall be at our discretion. The same shall apply to the selection of the forwarding agent or carrier.

6.4. Partial, excess or short deliveries shall be permissible insofar as they are reasonable for the Purchaser taking into account customary tolerances. The same shall apply to early deliveries.

6.5. Delivery items that have been reported ready for shipment must be called off immediately, otherwise we shall be entitled to store them at the expense and risk of the Purchaser. The Purchaser may not refuse shipment or acceptance of deliveries due to insignificant defects.

7. Retention of title

7.1. The transfer of risk shall be governed by Clause 6.1.

7.2. Notwithstanding the contractual provisions on the passing of risk, ownership of the delivery item (reserved goods) shall not pass to the Purchaser until full and unconditional payment of the entire price and all other existing or future claims against the Purchaser arising in the course of the ongoing business relationship.

7.3. The Purchaser shall be entitled to use the Retained Goods in the ordinary course of business and to sell them to a third party, provided that the sale is made in the ordinary course of business.

7.4. Before payment of the full price of the goods subject to retention of title applies:

7.4.1. If the customer takes custody of the reserved goods on our behalf;

7.4.2. the Purchaser shall be obligated to sell the Retained Goods in accordance with the following provisions

(a) properly secure and store separately from other property of the customer and third parties

(b) sufficiently insure the goods at its own expense against theft, breakage, fire, water and other usual damage at replacement value and provide us with evidence of this upon request; the customer hereby authorizes us to pursue all claims for compensation arising from these insurances

(c) to be maintained in complete and proper condition free from defects;

7.4.3. the Purchaser shall be obliged not to cover or remove any markings affixed to the Retained Goods and, up-on request, to cause a notice to be included in its business documents and – if possible – to affix a notice to the Retained Goods stating that they continue to be our property;

7.4.4. we or third parties commissioned by us shall be entitled to inspect business documents of the purchaser during normal business hours as well as to gain access to the reserved goods in order to make sure that the above-mentioned notices have been included in the business documents and that corresponding notices have been attached to the reserved goods and have not been damaged. We shall be entitled to withdraw from the contract in the event of a material breach of the above obligations of the Purchaser set out in Clause 7.4 and without prejudice to further existing remedies.

7.5. The right of possession and the right of resale pursuant to the above provision of Clause 7.3 shall automati-cally expire in the event of the opening of insolvency proceedings against the assets of the Purchaser, the justified filing of an application for the opening of insolvency proceedings or the rejection of a corresponding application for lack of assets, any other material deterioration of assets or the imminent discontinuation of the business operations of the Purchaser.

7.6. Insofar as the purchase price for the delivery item has not yet been paid in full, we shall furthermore be en-titled to obtain access to the reserved goods ourselves or through third parties commissioned by us at any time during business hours in order to convince ourselves of the proper condition of the delivery item or to take possession of the delivery item in the event that the purchaser’s right of possession ceases and to re-move it from the respective location.

7.7. We shall in any case remain entitled to claim payment of the purchase price from the Purchaser.

7.8. The Purchaser shall not be entitled to resell the subject matter of the contract to third parties in our name or on our behalf and thereby to establish third party claims against us.

7.9. If the customer pledges, assigns or otherwise realizes the delivery item, for which the purchase price has not yet been paid to us in full, as security for claims existing against him, all our existing payment claims against the customer shall become due for payment immediately.

7.10. In the event of a resale of the delivery item in the ordinary course of business to a third party in accordance with clause 7.3, the Purchaser shall assign the consideration received to us and hold it in safe custody for us and account for it accordingly. All consideration received in this sense (payments in cash or in kind as well as monies received from an in-surance company) must be

(a) held in trust for us by the Customer, as well as kept separate from other property or cash holdings of the Customer or third parties,

(b) may not be transferred to an overdrawn bank account in the case of cash payments,

(c) must remain identifiable as our money or property,

(d) in the case of movable property, properly stored, protected and insured.

7.11. If the value of the existing securities exceeds our secured claims by more than 10% in total, we shall be obliged to release securities of our choice to this extent at the request of the customer.

8. Liability for defects

We provide a warranty for defects in our deliveries in accordance with the following provisions:

8.1. There shall be no rights in respect of defects due to insignificant material defects.

8.2. The customer is obliged to carefully inspect the deliveries and must immediately notify us in writing of any material defects.

8.3. Insofar as deliveries are defective, we shall be entitled, at our discretion, to subsequent performance in the form of rectification of the defect or delivery of new items free of defects or replacements free of defects. If the subsequent performance fails, the customer shall be entitled – without prejudice to his other rights – to demand rescission of the contract or a reduction of the price at his discretion.

8.4. Claims for defects shall become time-barred twelve (12) months after the statutory commencement of the limitation period (limitation period). This shall not apply insofar as the law prescribes mandatory periods, inter alia in accordance with §§ 438 pa-ra. 1 no. 2, para.3 and 634a para. 1 no.2 of the German Civil Code (BGB); in the case of claims for damages, this shall also not apply in the case of inju-ry to life, limb or health, in the case of claims under the German Product Liability Act (Produkthaftung-sgesetz), in the case of breach of material contractual obligations and in the case of grossly negligent or in-tentional breach of duty. A new start of the liability for defects by a subsequent performance is excluded.

8.5. Claims of the Purchaser for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that expenses are increased be-cause the subject-matter of the Supplies has subsequently been brought to another location than the Pur-chaser’s branch office, unless doing so complies with the normal use of the Supplies.

8.6. At our request, the Purchaser shall declare within a reasonable period whether he withdraws from the con-tract due to a material defect or continues to insist on delivery.

8.7. We do not assume any liability for damages caused by the following reasons: Unsuitable or improper use, unauthorized and faulty assembly or commissioning by the purchaser or third parties, subsequent modifica-tion work by the purchaser or third parties, natural wear and tear, negligent or faulty handling, maintenance or servicing, violations of the operating instructions, unsuitable operating materials, chemical, electro-chemical or electrical influences for which we are not responsible, as well as extraordinary temperature or weather influences.

8.8. Claims for damages and reimbursement of expenses shall otherwise be governed by Clause 10. Further claims or claims other than those governed by this Clause 8. against us and our vicarious agents due to a ma-terial defect shall be excluded.

8.9. The Purchaser shall be obliged to forward the request for subsequent performance of its customer (end customer) to us. The basis for the processing of warranty claims of the purchaser’s customers shall be our warranty condi-tions in the respective valid version. With the complete fulfillment of the warranty claims of the purchaser’s customer by us based on our war-ranty conditions, the purchaser shall lose the right to assert recourse claims against us on the basis of its own statutory warranty obligation towards the customer.

9. Property rights and defects of title

9.1. Unless otherwise agreed, we shall only be obliged to provide the Supplies free from third parties’ industrial property rights and copyrights (hereinafter referred to as “IPR”) in the country of the place of delivery only. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Sup-plies made by us and used in conformity with the contract, we shall be liable to the Purchaser within the pe-riod specified in Clause 8.4 as follows: We shall, at our option, obtain a right of use or modify or replace the Supplies concerned in such a way that the IPR is not infringed. If this fails, the Purchaser shall be entitled – without prejudice to other rights – to the statutory rights of re-scission or reduction.

9.2. Our obligation to pay damages and reimbursement of expenses shall be governed by Section 10.

9.3. The aforementioned obligations shall only exist insofar as the Purchaser immediately notifies us in writing of the claims asserted by the third party and neither acknowledges an infringement of any rights nor signifi-cantly impairs our defense options in any other way. If the Purchaser ceases to use the purchased goods in order to mitigate damages or for other reasons, it shall be obliged to point out to the third party that no acknowledgement of an infringement of an IPR is im-plied thereby.

9.4. Claims of the purchaser are excluded insofar as he is responsible for the infringement of the property right or insofar as the infringement of the property right has arisen due to special specifications of the purchaser. In such a case, the purchaser shall indemnify us against all claims of third parties based on an infringement of property rights which are asserted against us.

9.5. In all other respects, the provisions of Clause 8. shall apply accordingly to infringements of property rights. In the event of other defects of title, the provisions for defects of quality pursuant to Clause 8. shall apply accordingly.

9.6. We reserve the property rights and copyrights to cost estimates, drawings and other documents; they may only be made accessible to third parties with our consent.

10. Other claims for damages

10.1. We shall be liable for damages and reimbursement of expenses solely based on the statutory provisions, subject to the following conditions. This shall apply to claims for damages in addition to performance and in lieu of performance, irrespective of the legal grounds – in particular due to defects, breach of duties arising from the contractual obligation and tort – and also for the reimbursement of futile expenses. However, the provisions on delay in delivery (clause 4) shall take precedence.

10.2. Liability shall exist for intentional and grossly negligent conduct, whereby in the case of gross negligence lia-bility shall be limited to compensation for the foreseeable damage typical for the contract.

10.3. Furthermore, no liability shall be assumed for damage caused by the delivery item to legal assets of the Pur-chaser or third parties, e.g. damage to other items, loss of profit and financing costs, as well as indirect dam-age, e.g. as a result of operational downtime.

10.4. The limitation of liability in terms of time shall be governed by the liability for defects (Section 8.3.).

10.5. The above limitations of clause 10. shall not apply in the event of liability under the Product Liability Act or in-jury to life, limb or health or any other mandatory liability. Furthermore, they shall not apply to a culpable breach of an essential contractual obligation; in this respect, liability shall be limited to compensation for the foreseeable damage typical of the contract. Essential contractual obligations are in particular those which are required to achieve the purpose of the contract or the fulfillment of which only makes the proper execution of the contract possible and on the ob-servance of which the customer may rely.

10.6. The above provisions do not imply a change in the burden of proof.

10.7. Insofar as our liability is limited, this shall also apply to the corresponding personal liability of our employees, vicarious agents and representatives.

11. Place of performance, partial invalidity

11.1. The place of performance for our deliveries shall be the place of the supplying plant. If we are also to provide services (e.g. assembly), the place of performance shall be the place where the services are to be provided. For the purchaser’s payment obligation, the place of performance shall be the place of payment specified in our invoice.

11.2. The invalidity or partial invalidity of individual provisions shall not affect the validity of the remaining provi-sions and the contract as a whole. An invalid or partially invalid provision shall be replaced by a valid provision which comes as close as possible to the economic purpose of the invalid or partially invalid provision. The same shall apply to loopholes.

12. Jurisdiction, Applicable Law

12.1. The place of jurisdiction for all legal disputes, also for bill of exchange and check proceedings, shall be Ol-denburg, if the customer is a merchant, a legal entity under public law or a special fund under public law. This place of jurisdiction shall also apply if the customer does not have a general place of jurisdiction in Ger-many, moves his place of residence or habitual abode out of Germany after conclusion of the contract or if his place of residence or habitual abode is not known at the time the action is brought.

12.2. The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between us and the Buyer, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention/CISG) of 1 April 1980..



Atlas street 6

27777 Ganderkesee