General Terms and Conditions of Use

Version: May 28, 2024

1. General Provisions

Our deliveries and services are based on these conditions as well as any separate contractual agreements. Our conditions apply only if the purchaser is an entrepreneur, a legal entity under public law, or a special fund under public law.

Unless otherwise agreed, our conditions in the version valid at the time of the purchaser's order or, in any case, in the most recent version communicated to him 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 conditions apply exclusively. Deviating purchasing conditions of the purchaser shall not become part of the contract even if we accept an order. Deviations from our delivery and payment conditions are only valid if expressly agreed to by us in writing. This requirement for consent applies in any case, for example, even if the purchaser refers to their general terms and conditions within the scope of the order and we do not expressly object to this.

Individual agreements (e.g., framework delivery contracts, quality assurance agreements) and details in our order confirmation take precedence over our conditions. In case of doubt, trade terms shall be interpreted according to the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

Legally significant declarations and notifications by the purchaser in relation to the contract (e.g., setting deadlines, reporting defects, withdrawal, or reduction) must be made in writing. Written form within the meaning of our conditions includes written and text form (e.g., letter, email, fax). Statutory formal requirements and further evidence, especially in cases of doubt regarding the legitimacy of the declarant, remain unaffected.

References to the applicability of statutory provisions are for clarification purposes only. Therefore, the statutory provisions shall apply even without such clarification, iInsofar as they are not directly modified or expressly excluded in these conditions.

 2. Offers and Orders

All offers from Brain of Materials AG are subject to change and non-binding. This applies even if we have provided the purchaser with catalogs, technical documentation (e.g., images, calculations, cost estimates, data sheets, references to DIN standards), other product descriptions, or documents – even in electronic form – to which we reserve ownership and copyright. Orders placed with us are only considered accepted once we have confirmed them in writing. This also applies to amended orders. Contracts are concluded exclusively based on the following provisions; we hereby explicitly reject the applicability of any deviating conditions of the purchaser.

In the event of significant technical changes by our supplier and service provider or the introduction of an equivalent type under a different type designation, the modified goods shall be considered as ordered unless this is unreasonable for the purchaser.

3. Prices

Unless otherwise agreed, the prices of Brain of Materials AG are exclusive of packaging and delivery from the factory/warehouse in Germany.

If the agreed prices are based on our list prices and delivery is to take place more than four months after the conclusion of the contract, our list prices valid at the time of delivery shall apply – minus any agreed percentage or fixed discount.

4. Delivery Time, Delivery Delay, and Delivery Obligation

The delivery time is determined by the agreements between the contracting parties. Compliance with the delivery time by Brain of Materials AG presupposes that all commercial and technical questions between the contracting parties have been clarified and the purchaser has fulfilled all obligations incumbent upon him, such as making a down payment. If this is not the case, the delivery time shall be extended accordingly. This does not apply if Brain of Materials AG is responsible for the delay.

Compliance with the delivery deadline is subject to correct and timely delivery to us. Brain of Materials AG will inform the purchaser of any foreseeable delays as soon as possible. The delivery period is deemed met if the delivery item has left the factory or warehouse of Brain of Materials AG before its expiration or if readiness for shipment has been reported.

If the shipment of the delivery item is delayed for reasons attributable to the purchaser, the costs incurred due to the delay will be charged to him, starting one month after notification of readiness for shipment or acceptance.

If the non-compliance with the delivery time is due to force majeure, labor disputes, or other events beyond the supplier's control, the delivery time shall be extended accordingly. The supplier will inform the purchaser of the beginning and end of such circumstances as soon as possible.

The anticipated delivery date will be communicated when the order confirmation is issued. The mere passing of this date without delivery does not constitute a delay. After the expiration of a reasonable grace period, the purchaser may withdraw from the contract in the event of a delay if the delivery item has not left the factory/warehouse of Brain of Materials AG by the end of the period or if the goods have not been reported as ready for shipment (debt to dispatch) to the purchaser by the end of the period.

If Brain of Materials AG cannot meet expected delivery deadlines for reasons beyond its control (unavailability of the service), Brain of Materials AG will inform the purchaser immediately and at the same time communicate the anticipated new delivery deadline. Unavailability of the service might occur, for example, in case of late delivery by our suppliers, if Brain of Materials AG has concluded a congruent hedging transaction, or due to other disruptions in the supply chain such as force majeure or if we are not obliged to procure in individual cases (e.g., material provision of raw materials). If the service remains unavailable within the new delivery period, Brain of Materials AG is entitled to withdraw from the contract in whole or in part; any consideration already provided by the purchaser will be refunded immediately.

The purchaser may withdraw from the contract without setting a deadline if it becomes definitively impossible for Brain of Materials AG to perform the entire service before the transfer of risk. The purchaser may also withdraw from the contract if the execution of part of the delivery becomes impossible for an order and he has a legitimate interest in rejecting the partial delivery. If this is not the case, the purchaser must pay the contract price attributable to the partial delivery. The same applies in the event of incapacity on the part of Brain of Materials AG.

If impossibility or incapacity occurs during the acceptance delay or if the purchaser is solely or predominantly responsible for these circumstances, he remains obliged to provide consideration.

5. Payment Terms

Payments are to be made within 14 days from the invoice date without deduction, unless otherwise expressly stated in the order confirmation or agreed upon in writing.

Bills of exchange and checks are only accepted by special written agreement and on an ex gratia basis. Any costs incurred in this respect shall be borne by the user of the bill of exchange/check. The purchaser has the right to withhold payments or offset them with counterclaims only to the extent that his counterclaims are undisputed or legally established.

If, after the conclusion of the contract, it becomes apparent (e.g., through a petition to open insolvency proceedings) that the claims of Brain of Materials AG for the purchase price are endangered due to the purchaser's lack of performance, we are entitled, according to 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 items), Brain of Materials AG may declare withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.

6. Transfer of Risk

The risk passes to the purchaser when the delivery item has left the factory/warehouse of Brain of Materials AG, even if partial deliveries are made or if Brain of Materials AG has taken on other services, such as shipping costs or delivery. If the shipment is delayed or does not occur due to circumstances not attributable to Brain of Materials AG, the risk passes to the purchaser from the day of notification of readiness for shipment. Brain of Materials AG is obliged to take out insurance at the purchaser's expense if the purchaser requests this in writing.

7. Retention of Title

We retain ownership of the sold goods until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) has been made.

The goods subject to retention of title must neither be pledged to third parties nor transferred as security before the secured claims have been fully paid. The purchaser must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or insofar as third parties (e.g., seizures) access the goods belonging to us.

In case of conduct by the purchaser that is contrary to the contract, particularly in the event of non-payment of the due purchase price, we are entitled to withdraw from the contract according to legal provisions and/or demand the return of the goods based on the retention of title. The demand for the return of the goods does not simultaneously imply the declaration of withdrawal; rather, we are entitled to demand only the return of the goods and reserve the right to withdraw. If the purchaser does not pay the due purchase price, we may assert these rights only if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable according to legal provisions.

The purchaser is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business until revoked in accordance with (c) below. In this case, the following additional provisions apply:

(a) The retention of title extends to the full value of the products resulting from the processing, mixing, or combination of our goods, with Brain of Materials AG being considered the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their ownership rights remain, we shall acquire co-ownership in the ratio of 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.

(b) The purchaser hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product, either in total or in the amount of our possible co-ownership share according to the preceding paragraph. We accept the assignment. The obligations of the purchaser mentioned in paragraph 2 also apply concerning the assigned claims.

(c) The purchaser remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, there is no deficiency in his performance ability, and we do not assert the retention of title by exercising a right according to paragraph 3 above. However, if this is the case, we can demand that the purchaser informs us of the assigned claims and their debtors, provides all necessary information for collection, hands over the relevant documents, and notifies the debtors (third parties) of the assignment. Furthermore, in this case, we are entitled to revoke the purchaser's authority to further sell and process the goods subject to retention of title.

(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the purchaser's request.

8. Duty to Notify Defects / Complaints

The purchaser is obligated to promptly inspect the received goods for defects and their condition upon arrival. Any obvious as well as hidden defects must be promptly reported to Brain of Materials AG in writing. The deadline for reporting hidden defects begins with the purchaser's awareness. The purchaser's knowledge includes that of agents and representatives.

Complaints regarding the gross weight must be raised no later than three business days after the yarn arrives at the destination. Defect complaints regarding the yarn (material defects) can only be raised within two weeks after arrival at the destination, and only if processing of the yarn has not yet begun. Hidden defects must be reported promptly upon discovery. If the defect complaint is not made within the deadline, the goods are considered approved.

Minor, technically unavoidable deviations in the quality, color, or equipment of the delivered yarn do not constitute material defects. This also applies to commercially customary deviations. No liability is assumed for defects in goods made from the yarn that arise from improper processing and handling of the yarn. Yarns may change their technical properties (aging) over the storage period. In this case, the buyer must be informed by the supplier. Technical changes due to aging are therefore not considered defects.

If the buyer has prescribed specific raw materials, specific dyes, specific dyeing processes, or specific finishing processes without alternative options for processing the order, the seller is liable for errors resulting from defects in the raw material, the dye used, or the equipment, which were not detected despite proper incoming inspection, only to the extent that the fiber or dye supplier or the finisher provides a warranty. The seller agrees with the buyer when an order is covered by the aforementioned provisions. In case of damage, the seller assigns any warranty claims against upstream suppliers or finishers to the buyer.

If the purchaser fails to conduct proper inspection and/or report defects, or if the defects could have been identified upon proper inspection, the liability of Brain of Materials AG for the defect not or not timely or not properly reported is excluded according to legal provisions. This also applies to further processing, even if the defect becomes apparent after such processing due to the breach of these obligations; in this case, the purchaser particularly has no claims for reimbursement of corresponding costs ("removal and installation costs").

9. Claims for Defects / Material Defects

For material and legal defects in the delivery, Brain of Materials AG provides warranty as follows, excluding further claims – subject to Clause 10:

All goods that prove to be defective as a result of circumstances preceding the transfer of risk are to be repaired or replaced free of charge at the discretion of Brain of Materials AG. Such defects must be promptly reported to the supplier in writing. Replaced goods become the property of the supplier.

The purchaser must, after consultation with Brain of Materials AG, provide the necessary time and opportunity for all necessary repairs and replacements; otherwise, Brain of Materials AG is exempt from liability for the resulting consequences. Only in urgent cases to prevent disproportionately large damages, where Brain of Materials AG must be immediately notified, the purchaser has the right to remedy the defect themselves or through third parties and to demand reimbursement of the necessary expenses from Brain of Materials AG.

Brain of Materials AG bears the direct costs arising from the repair or replacement, including shipping, to the extent that the complaint proves to be justified.

The purchaser has the right to withdraw from the contract in accordance with statutory provisions if Brain of Materials AG – taking into account statutory exceptions – allows a reasonable deadline set for repair or replacement due to a material defect to pass fruitlessly. If only a minor defect exists, the purchaser is only entitled to a reduction of the contract price.

No warranty is provided, especially in the following cases:

Improper or inappropriate use by the purchaser or third parties, natural wear and tear, improper or negligent handling, chemical or physical influences – unless attributable to Brain of Materials AG in each case.

If the purchaser or a third party improperly carries out repairs, Brain of Materials AG is not liable for the resulting consequences.

10. Liability

Brain of Materials AG is liable for damages that have not arisen from the delivered goods themselves – for whatever legal reason – only:

(a) in case of intent,

(b) in case of gross negligence of the owner/principal or executive employees,

(c) in case of culpable injury to life, body, or health,

(d) in case of defects that have been fraudulently concealed or guaranteed to be absent,

(e) in case of defects in the delivered goods to the extent liability is provided for under the Product Liability Act for personal injury or property damage to privately used items,

(f) in case of defects in the delivered goods to the extent liability is provided for under the Product Liability Act for personal injury or property damage to privately used items.

Brain of Materials AG is also liable for culpable breach of material contractual obligations, even in the case of gross negligence of non-executive employees and in case of slight negligence, in the latter case limited to the foreseeable damage typical for the contract.

Further claims are excluded.

11. Statute of Limitations

All claims of the purchaser arising from deliveries and services – for whatever legal reason – shall be time-barred after 12 months. However, the statutory limitation periods apply to claims for damages under Section 10.

12. Applicable Law, Jurisdiction

The law of the Federal Republic of Germany shall apply to the conditions and the contractual relationship between Brain of Materials AG and the purchaser, excluding the provisions of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).

If the purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special public fund, or if it does not have a general place of jurisdiction in the Federal Republic of Germany, our place of business in Mönchengladbach shall be the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the purchaser is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases, we are also entitled to file suit at the place of performance of the delivery obligation according to our terms and conditions or a prior individual agreement, or at the general place of jurisdiction of the purchaser. Mandatory statutory provisions, particularly regarding exclusive jurisdictions, remain unaffected.

If any provision of these terms and conditions is or becomes invalid, this shall not affect the validity of the contract or the conditions in general. Brain of Materials AG and the purchaser undertake to replace the invalid clause with a valid one that comes closest to the intended purpose and economic effect of the invalid clause.