General terms of delivery

These general terms of delivery (“ALB”) apply to all deliveries and services between Havel metal foam GmbH (“HMF”) and the Customer. They apply exclusively to entrepreneurs, legal entities under public law or special funds under public law. This English version is a courtesy translation; the German version is binding.

Updated: October 5, 2026

1. Scope, form

1.1 These general terms of delivery (“ALB”) apply to all deliveries and services between Havel metal foam GmbH (“HMF”) and the customer (“Customer”). The ALB apply exclusively to entrepreneurs (Unternehmer), legal entities under public law or special funds under public law.

1.2 The ALB apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether HMF manufactures the Goods itself or purchases them from suppliers (Sections 433, 650 of the German Civil Code (BGB)). Unless otherwise agreed, the ALB in the version valid at the time of the Customer’s order, or in any event in the version last communicated to the Customer in text form, also apply as a framework agreement to similar future contracts, without HMF having to refer to them again in each individual case.
1.3 The ALB apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Customer become part of the contract only if and to the extent that HMF has expressly consented to their application. This requirement of consent applies in every case, for example also where the Customer refers to its general terms and conditions in the course of the order and HMF does not expressly object to this.
1.4 Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in HMF’s order confirmation take precedence over the AVB. In case of doubt, trade terms are to be interpreted in accordance with the Incoterms® published by the International Chamber of Commerce in Paris (ICC) in the version valid at the time the contract is concluded.
1.5 Legally relevant declarations and notices by the Customer with regard to the contract (e.g. setting of deadlines, notice of defects, withdrawal or price reduction) must be made in writing. Writing within the meaning of these ALB includes written form and text form (e.g. letter, e-mail, fax). Statutory form requirements and further evidence, in particular where there are doubts about the authority of the person making the declaration, remain unaffected.
1.6 References to the application of statutory provisions are for clarification only. Even without such a clarification, the statutory provisions therefore apply unless they are directly amended or expressly excluded in these ALB.

2. Conclusion of contract

2.1 Offers by HMF are subject to change and non-binding.

2.2 The Customer’s order is deemed a binding offer to conclude a contract. Unless the order states otherwise, HMF is entitled to accept this offer within 14 days of its receipt by HMF.
2.3 Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the Goods to the Customer.
2.4 Drawings, illustrations, dimensions, weights, other descriptions of the products or interpretations by HMF of load data provided by the Customer are binding only if this is expressly agreed in writing. Details of the quality of the products derive exclusively and conclusively from the specification that forms part of the order confirmation (“Specification”). HMF reserves the right to adjust the scope of delivery and/or the Specification where this results after order confirmation from necessary deviations for technical reasons, and to adjust the prices accordingly, in each case to the extent that this is reasonable for the Customer.
2.5 HMF holds the sole property rights and copyrights to the Specification and to other documents of HMF (e.g. calculations, drawings, cost estimates). These Specifications and other documents may be made accessible to third parties only with the prior consent of HMF. If no contract is concluded with HMF, the Customer shall return the Specifications and documents without undue delay at HMF’s request. Sentences 1 and 2 apply accordingly to documents of the Customer; HMF may, however, make these accessible to those third parties to whom HMF has permissibly assigned activities in connection with the products.
2.6 The Customer acquires no rights whatsoever to any tools or manufacturing concepts required for the manufacture and/or delivery of the products. This does not apply to the extent that the Customer proves that it developed, manufactured or procured such tools or manufacturing concepts itself.

3. Deliveries and transfer of risk

3.1 Deliveries are made ex works Brandenburg an der Havel (EXW Incoterms® 2020), unless the parties have agreed otherwise.

3.2 Partial deliveries are permitted to the extent that they are reasonable for the Customer.
3.3 Even where delivery is carriage paid, the risk passes to the Customer as follows: (a) for delivery of products without erection or assembly, when they have been dispatched or collected; (b) for delivery of products with erection or assembly, on the day of taking over in own works or, if so agreed, after a successful trial run.
3.4 If dispatch, delivery, the start or performance of erection or assembly, taking over in own works or the trial run is delayed for reasons for which the Customer is responsible, or if the Customer is in default of acceptance for other reasons, the risk passes to the Customer.
3.5 If readiness of the delivery item for loading or acceptance of the services is delayed for reasons for which the Customer is responsible, or if the Customer breaches other duties to cooperate, HMF is entitled to demand compensation for the damage it incurs as a result, including any additional expenses. Without prejudice to further claims, HMF may, after a reasonable grace period has expired without result, otherwise dispose of the delivery item, in particular store the delivery item at the Customer’s risk and expense and/or supply the Customer within a reasonably extended period.

4. Delivery dates and delay

4.1 The start of the delivery time stated by HMF requires all technical questions to have been clarified.

4.2 Delivery dates stated by HMF are binding only if HMF has expressly designated or confirmed them as binding.
4.3 If HMF cannot meet binding delivery periods for reasons for which HMF is not responsible (non-availability of performance), HMF will inform the Customer of this without undue delay and at the same time communicate the expected new delivery period. If performance is not available within the new delivery period either, HMF is entitled to withdraw from the contract in whole or in part; HMF will refund any consideration already rendered by the Customer without undue delay. Non-availability of performance exists, for example, where HMF’s own suppliers fail to deliver to HMF on time although HMF has concluded a congruent covering transaction, in the event of other disruptions in the supply chain, for instance due to force majeure, or where HMF is not obliged to procure in the individual case.
4.4 Compliance with delivery dates requires the Customer to comply with the agreed terms of payment and other obligations. If these are not fulfilled on time, the delivery dates are extended appropriately. This does not apply if HMF is responsible for the delay.
4.5 If failure to meet delivery dates is due to force majeure (Clause 10 below), the delivery dates are extended in accordance with Clause 10.10.3.
4.6 Whether HMF is in default of delivery is determined by the statutory provisions. In any event, however, a reminder from the Customer is required. If HMF is in default of delivery, the Customer may demand lump-sum compensation for its damage caused by the delay. The lump sum amounts to 0.5% of the net price (delivery value) for each completed calendar week of delay, but in total no more than 3% of the delivery value of the Goods delivered late. HMF reserves the right to prove that the Customer has suffered no damage at all or only significantly less damage than the above lump sum.
4.7 Both claims for damages by the Customer due to delay in delivery and claims for damages in lieu of performance that exceed the limits in Clause 6 are excluded in all cases of delayed delivery, even after expiry of any deadline for delivery set for HMF. This does not apply where liability is incurred in cases of intent, gross negligence or injury to life, body or health.
4.8 Within the framework of the statutory provisions, the Customer may withdraw from the contract only to the extent that HMF is responsible for the delay in delivery. The above provisions do not change the burden of proof to the detriment of the Customer.
4.9 At HMF’s request, the Customer is obliged to declare within a reasonable period whether it is withdrawing from the contract because of the delay in delivery or is insisting on delivery.
4.10 The term claims for damages also includes claims for reimbursement of futile expenses.

5. Prices and terms of payment

5.1 Unless HMF’s order confirmation states otherwise, prices apply ex works (Clause 3.3.1).

5.2 In addition, there are the costs of packaging, freight and customs (to the extent that the Customer does not already bear these under Clause 3) and the statutory value added tax applicable at the time of delivery. HMF will insure the products for transport at the Customer’s expense only at the Customer’s express request. If HMF has undertaken the erection or assembly of the products and nothing else has been agreed, the Customer bears, in addition to the agreed remuneration, all necessary incidental costs such as travel and transport costs and allowances (Auslösungen).
5.3 For contracts with an agreed delivery time of more than 4 months, HMF reserves the right to increase its prices in line with cost changes that occur after this point in time, in particular due to collective wage agreements or changes in the material prices of HMF’s upstream suppliers. In the same way and to the same extent, HMF is obliged to reduce the price in the event of cost reductions. Cost increases and cost reductions are offset against each other. HMF will notify the Customer in writing of a corresponding change in price at least four weeks in advance. The Customer then has a right of termination or withdrawal as of the date on which this price change takes effect.
5.4 If it becomes apparent after conclusion of the contract (e.g. through an application to open insolvency proceedings) that HMF’s claim to the price under Clauses 5.1 to 5.3 is jeopardized by the Customer’s lack of ability to pay, HMF is entitled under the statutory provisions to refuse performance and, where applicable after setting a deadline, to withdraw from the contract (Section 321 BGB). In the case of contracts for custom-made items, HMF may also declare withdrawal immediately; the statutory provisions on when setting a deadline is dispensable remain unaffected.
5.5 HMF’s invoices are due for payment without deduction within 28 calendar days of invoicing. Deduction of a cash discount is permitted only if expressly and specially agreed. Shorter payment periods under the law, under any separate agreement between the parties or under these ALB remain unaffected.
5.6 If the Customer is in default of acceptance, the purchase price becomes due upon receipt of the notification that the Goods are ready for dispatch. When default of acceptance occurs, the risk of accidental deterioration and accidental loss passes to the Customer.
5.7 The Customer may set off against HMF’s claims only with claims that are undisputed, expressly acknowledged by HMF or established by final and non-appealable judgment.
5.8 If the Customer is in default of payment, the statutory provisions apply.

6. Retention of title

6.1 The products delivered by HMF under the contract with the Customer (“Reserved Goods”) remain the property of HMF until all claims to which HMF is entitled against the Customer arising from the business relationship have been fulfilled. If the value of all security interests to which HMF is entitled exceeds the amount of all secured claims by more than 20%, HMF will release a corresponding part of the security interest at the Customer’s request.

6.2 While the retention of title subsists, the Customer is prohibited from pledging the Reserved Goods or transferring them by way of security, and resale is permitted only in the ordinary course of business.
6.3 If the Customer resells Reserved Goods, it hereby assigns to HMF by way of security its future claims arising from the resale against its own customers, with all ancillary rights, including any balance claims, without any further special declarations being required. If the Reserved Goods are resold together with other items without an individual price having been agreed for the Reserved Goods, the Customer assigns to HMF that part of the total price claim which corresponds to the price of the Reserved Goods invoiced by the supplier. This assignment applies irrespective of whether the Reserved Goods have been resold without or after processing.
6.4 The Customer is permitted to process the Reserved Goods or to mix or combine them with other items. The parties hereby agree that, in the event of combination or mixing with other items not belonging to HMF, HMF is entitled to co-ownership of the new item in the proportion that results from the ratio of the value of the combined or mixed Reserved Goods to the value of the other goods at the time of combination or mixing. To this extent, the new item created by the combination or mixing is deemed Reserved Goods. The provisions on the assignment of claims in Clause 6.3 also apply to the new item. The assignment, however, applies only up to the amount that corresponds to the value, invoiced by HMF, of the original Reserved Goods as defined in Clause 6.1 in the new item.
6.5 Until revocation by HMF in accordance with the following sentence, the Customer is authorized to collect assigned claims arising from the resale of the Reserved Goods. Where there is good cause (in particular default of payment, suspension of payments, opening of insolvency proceedings or justified indications of over-indebtedness or impending insolvency of the Customer), HMF is entitled to revoke the Customer’s authorization to collect and, after prior notice and observing a reasonable period, to disclose the assignment by way of security and to realize the assigned claims itself.
6.6 If Reserved Goods are attached or seized by third parties or are otherwise affected by dispositions of third parties of any kind, the Customer will notify HMF without undue delay and, if HMF credibly demonstrates a legitimate interest, will without undue delay provide HMF with the information and hand over the documents that HMF needs to assert its own rights against the third party.

7. Liability for material defects and defects of title

7.1 The products must be free from material defects and defects of title (“Defects”). The products are free from Defects if, at the time the risk passes, they have the agreed quality (Specification) and meet the objective requirements and the assembly requirements of Section 434 BGB. Where the parties have agreed on the quality (Specification), the question of whether the deliveries meet the objective requirements is determined exclusively by this agreement on quality. Sentence 2 does not apply to the extent that the last contract in the supply chain is a consumer goods purchase.

7.2 If the products have Defects at the time the risk passes, HMF is liable as follows: 7.2.1 HMF provides subsequent performance, at its own choice, by remedying the Defect or by delivering a new item free from Defects (“Subsequent Performance”). 7.2.2 HMF must be given the opportunity for Subsequent Performance within a reasonable time. If HMF is refused this, HMF is released from liability for Defects. 7.2.3 If Subsequent Performance fails twice, or if a second attempt at Subsequent Performance is unreasonable for the Customer, the Customer is entitled to reduce the price or to withdraw from the contract.
7.2.4 There are no claims for Defects in the case of only an insignificant deviation from the agreed quality, only an insignificant impairment of usability, or damage arising after the transfer of risk as a result of faulty or negligent operation or handling, excessive stress, or external influences not assumed under the contract. If the Customer carries out improper modifications or repair work, there are no claims for Defects for these or for the consequences arising from them.
7.2.5 Defects in part of the delivery do not entitle the Customer to reject the entire delivery, unless the partial delivery is of no interest to the Customer.
7.2.6 Claims by the Customer for the expenses required for the purpose of Subsequent Performance, in particular travel, labor and material costs, are excluded to the extent that the expenses increase because the products were subsequently taken to a place other than the place of performance.
7.2.7 The Customer has recourse claims against HMF only to the extent that the Customer has not made any agreements with its own purchaser that go beyond the statutory claims for defects. Clauses 7.2.4 to 7.2.6 apply accordingly to the scope of the recourse claim.
7.3 The Customer is entitled to claims under this Clause 7 only if it complies with its duties to inspect and to give notice of defects under Section 377 of the German Commercial Code (HGB). To this end, the Customer must inspect the products without undue delay after receipt for conformity with the contract and for any transport damage. The Customer must notify HMF of Defects without undue delay (“Notice of Defects”). The Notice of Defects must contain the article designation, the serial number or the delivery note number, the delivery date, the number of the invoice or order confirmation and a description of the Defect; for visible Defects, the Notice of Defects should include photos of the Defect.
7.4 The Buyer’s claims for a Defect become time-barred within 12 months, beginning with the transfer of risk. This does not apply to the extent that the law prescribes longer periods under Sections 438(1) no. 2 (buildings and items for buildings), 478, 479 (supplier recourse) and 634a(1) no. 2 BGB (construction defects), nor in cases of injury to life, body or health, of an intentional or grossly negligent breach of duty by us, or of fraudulent concealment of a Defect. The statutory provisions on suspension of expiry, suspension or recommencement of limitation periods remain unaffected.
7.5 Claims for damages (as defined in Clause 4.4.10) for a Defect are excluded. This does not apply in the case of fraudulent concealment of a Defect, non-compliance with a quality guarantee, injury to life, body or health, or an intentional or grossly negligent breach of duty on the part of HMF. Claims of the Customer for a Defect that go beyond or differ from those governed in this Clause 7 are excluded.
7.6 The above provisions do not change the burden of proof to the detriment of the Customer.

8. Industrial property rights, copyrights, defects of title

8.1 If use of the delivery item leads to the infringement of industrial property rights, such as patents, or copyrights of third parties, HMF will, at its own expense, in principle procure for the Customer the right to continued use or modify the delivery item in a manner reasonable for the Customer such that the infringement of property rights no longer exists. If this is not possible on economically reasonable terms or within a reasonable period, the Customer is entitled to withdraw from the contract. Under the stated conditions, HMF also has a right to withdraw from the contract. In addition, in the event of fault, HMF will indemnify the Customer against undisputed claims, or claims established by final and non-appealable judgment, of the holders of the property rights concerned.

8.2 Subject to § 9, the obligations of HMF stated in § 8.1 are conclusive for the case of an infringement of property rights or copyrights. They exist only if the Customer informs HMF without undue delay of asserted infringements of property rights or copyrights, the Customer supports HMF to a reasonable extent in defending against the asserted claims or enables HMF to carry out the modification measures under § 8.1, HMF retains all defensive measures including out-of-court settlements, the defect of title is not based on an instruction of the Customer or on the fact that the infringement arises only from the Customer combining the delivery item with products or deliveries outside HMF’s scope of delivery, and the infringement was not caused by the Customer modifying the delivery item without authorization or using it in a manner not in accordance with the contract.
8.3 HMF does not warrant that the end products manufactured using the delivery item are free from property rights of third parties, including the manufacturing process used for this.

9. Other claims for damages

9.1 Unless otherwise provided in these ALB, claims for damages (as defined in Clause 4.10) by the Customer, on whatever legal grounds, are excluded; this applies in particular to claims for damages for breach of obligations arising from the obligation relationship and from tort. The exclusion of liability does not apply to the extent that HMF is liable as follows: under the German Product Liability Act (Produkthaftungsgesetz); in the case of intent; in the case of gross negligence of owners, legal representatives or executive employees; in the case of fraudulent intent; in the case of non-compliance with a guarantee given; for culpable injury to life, body or health; or for culpable breach of material contractual obligations. The claim for damages for breach of material contractual obligations is, however, limited to the foreseeable damage typical of the contract, unless another of the cases listed above applies.

9.2 If, as agreed, HMF takes over the storage or stocking of products or other items, HMF is liable for the stored products or other items only to the extent of the care it customarily exercises in its own affairs (Section 277 BGB).
9.3 The above provisions do not change the burden of proof to the detriment of the Customer.

10. Force majeure

10.1 Force majeure means extraordinary events or circumstances that prevent a party from fulfilling its obligations under the contract, provided that such an extraordinary event or circumstance is beyond the control of that party, that party could not have avoided or overcome such an extraordinary event or circumstance, and such an extraordinary event or circumstance is not substantially attributable to the other party.

10.2 Provided that the conditions stated in Clause 10.1 are met, force majeure may include, but is not limited to, extraordinary events or circumstances and natural disasters such as earthquake, flood, hurricane, typhoon, fire, invasion, war, government sanctions, terrorist activities, revolution, riot, epidemics or pandemics. For the avoidance of doubt: future lockdowns or other measures in connection with COVID-19 that prevent a party from performing the contract are also deemed an event of force majeure.
10.3 If a party is prevented or delayed by force majeure from fulfilling its obligations under the contract, that party must inform the other party of the extraordinary event or the extraordinary circumstances constituting the force majeure. Where possible, the notification should also state the expected duration of the impediment to performance. Following such a notification, the prevented party is released from fulfilling these obligations for the period during which it is prevented by the force majeure, and must notify the other party when it is no longer prevented by the force majeure. The parties will make all reasonable efforts to keep delays in the performance of the contract as a result of force majeure as small as possible.

11. Export control; reservation of performance

11.1 If the Buyer intends to export or transfer the delivery item to the Russian Federation, Belarus or a country or territory against which the United Nations, the European Union, the United States of America or the country in which HMF has its principal place of business (“HMF Country”) has imposed or put into force an embargo or other export or re-export restrictions, or to use it for such a country or territory, the Customer will notify HMF of this in writing before the contract between HMF and the Customer is concluded; the same applies to (i) the transit of the delivery item through a country or territory against which the United Nations, the European Union or the United States of America has imposed restrictions on the transit of goods, and/or (ii) if and to the extent that intellectual property rights or trade secrets, or the granting of rights to access or reuse material or information protected by intellectual property rights or as a trade secret (“IP Rights”), are sold, licensed or otherwise transferred, where the Customer intends to use these IP Rights for items intended directly or indirectly for sale, supply, transfer or export to the Russian Federation or for use in the Russian Federation, or (where sublicensing is permitted) to grant a sublicense for these IP Rights.

11.2 If the Customer forms such an intention after conclusion of the contract, such export, transfer, transit or use requires the prior written consent of HMF. Notwithstanding this, the Customer warrants that it (i) complies with the relevant export control regulations, including embargoes and other sanctions in force in the HMF Country, the European Union and the United Nations, and (ii) also complies with all other foreign export control provisions, including embargoes and sanctions, provided that the HMF Country, the European Union or the United Nations have enacted regulations, embargoes or sanctions comparable to those in the states concerned. If the Customer resells the delivery item, the Customer will (i) ensure by means of corresponding agreements that these obligations are passed on throughout the entire supply chain and up to the end customer with whom the delivery item remains, and (ii) monitor compliance in an appropriate manner.
11.3 In the event of a breach of Clause 11.1 and/or Clause 11.2, HMF is entitled to terminate the contract with immediate effect and to assert claims for damages.

12. Confidentiality

12.1 The parties will neither pass on to third parties nor use for purposes other than those of the contract, without the written consent of the other party, the documents, knowledge, information and other technical documentation received from the other party under the contract, irrespective of the form of transmission (“Confidential Information”). They must be protected against unauthorized inspection or use. Subject to further rights, a party may demand their return if the other party breaches these obligations.

12.2 The obligation under Clause 12.1 begins upon receipt of the Confidential Information and ends 36 months after the end of the contract.
12.3 The obligation under Clause 12.1 does not apply to Confidential Information that (1) is generally known, or that (2) was already known to the receiving party on receipt without the receiving party being bound to confidentiality, or that (3) is subsequently communicated by a third party entitled to pass it on, or (4) that is developed by the receiving party without use of the other party’s Confidential Information that must be kept secret.

13. Final provisions

13.1 The transfer of rights and obligations of the Customer to third parties is permitted only with the prior written consent of HMF.

13.2 The place of performance for all delivery obligations and for the other contractual obligations of both parties is HMF’s registered office. HMF is also entitled to carry out subsequent performance and rectification at the Customer’s registered office.
13.3 Should a provision of these ALB be or become invalid or unenforceable in whole or in part, this does not affect the validity of the remaining provisions.
13.4 These terms and conditions and the entire legal relationship between HMF and the Customer are governed by the law of the Federal Republic of Germany, excluding all references to other legal systems and international treaties. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) is excluded.
13.5 The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship or concerning the validity of these ALB is HMF’s registered office. HMF is also entitled to sue the Customer at the Customer’s registered office.