General Terms and Conditions of Sale

Nele Kosmetik GmbH

Ziegeleistraße 3

91338 Igensdorf

§ 1 Scope, Form

(1) These General Terms and Conditions of Sale (GTC) apply to all business relationships of NELE Kosmetik GmbH with its customers (“Buyer”). The GTC only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law within the meaning of § 310 para. 1 BGB.

(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), regardless of whether NELE Kosmetik GmbH manufactures the Goods itself or purchases them from suppliers (§§ 433, 650 BGB). The GTC also apply to contracts for the purchase and/or delivery of Goods in which the Buyer provides all or part of the materials or raw materials (e.g., filling of pens, where the bulk and the pen sleeves are provided by the Seller) (“mixed contract”). Unless otherwise agreed, the GTC in the version valid at the time of the Buyer’s order or, in any case, in the version last communicated to him in text form, shall also apply as a framework agreement for similar future contracts, without NELE Kosmetik GmbH having to refer to them again in each individual case.

(3) The GTC of NELE Kosmetik GmbH apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that NELE Kosmetik GmbH has expressly agreed to their validity in writing. This requirement of consent applies in every case, for example, even if NELE Kosmetik GmbH carries out the delivery to the Buyer without reservation while being aware of the Buyer’s GTC.

(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements, and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or a written confirmation from NELE Kosmetik GmbH is authoritative for the content of such agreements.

(5) Legally relevant declarations and notices by the Buyer in relation to the contract (e.g., setting of deadlines, notice of defects, withdrawal, or reduction) must be submitted in writing, i.e., in written or text form (e.g., letter, email, fax). Statutory formal requirements and further evidence, especially in case of doubts about the legitimacy of the declarant, remain unaffected unless otherwise specified below.

(6) The performance of legal acts by a third party for the Buyer requires specific proof of authorization, unless NELE Kosmetik GmbH has obtained knowledge of this otherwise or expressly waives it. The burden of proof for this lies with the Buyer. When unilateral legal acts are performed by a third party, authorization must in any case be proven by presenting a power of attorney document within the meaning of § 174 sentence 1 BGB. In the event that authorization is not proven in the above sense, the legal act shall be deemed rejected by NELE Kosmetik GmbH without delay, unless NELE Kosmetik GmbH was informed of the authorization by the Buyer.

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

§ 2 Conclusion of Contract, Cancellation

(1) Offers from NELE Kosmetik GmbH are subject to change and non-binding. This also applies if NELE Kosmetik GmbH has provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, analyses, costings, references to DIN standards), other product descriptions, or documents – also in electronic form – to which NELE Kosmetik GmbH reserves ownership and copyrights.

(2) The ordering of Goods by the Buyer is considered a binding contractual offer. Unless otherwise stated in the order, NELE Kosmetik GmbH is entitled to accept this contractual offer within four weeks after its receipt.

(3) Acceptance can be declared in writing (e.g., by order confirmation).

(4) If the Buyer cancels the contract after its conclusion, NELE Kosmetik GmbH will charge the Buyer a flat fee of 10% of the net purchase price. Proof of higher damages and the statutory claims of NELE Kosmetik GmbH remain unaffected; however, the flat fee shall be offset against further monetary claims. The Buyer is permitted to prove that NELE Kosmetik GmbH has suffered no damage at all or only significantly less damage than the aforementioned flat fee.

§ 3 Delivery Period and Delay in Delivery

(1) The delivery period is agreed individually or specified by NELE Kosmetik GmbH upon acceptance of the order.

(2) If NELE Kosmetik GmbH cannot meet binding delivery periods for reasons for which NELE Kosmetik GmbH is not responsible (non-availability of performance), NELE Kosmetik GmbH will inform the Buyer of this immediately and at the same time communicate the expected new delivery period. If the performance is also not available within the new delivery period, NELE Kosmetik GmbH is entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer will be refunded immediately by NELE Kosmetik GmbH. A case of non-availability of performance in this sense includes, in particular, the failure of NELE Kosmetik GmbH’s suppliers to deliver on time if NELE Kosmetik GmbH has concluded a congruent hedging transaction, neither NELE Kosmetik GmbH nor its supplier is at fault, or NELE Kosmetik GmbH is not obliged to procure in the individual case.

(3) The occurrence of a delay in delivery by NELE Kosmetik GmbH is determined according to statutory regulations. Deviating from this, however, a reminder by the Buyer is required in any case. If NELE Kosmetik GmbH falls into arrears with delivery, the Buyer may demand flat-rate compensation for the damage caused by the delay. The flat-rate compensation for damages is 0.5% of the net price (delivery value) for each completed calendar week of delay, but no more than 5% of the delivery value of the Goods delivered late. NELE Kosmetik GmbH reserves the right to prove that the Buyer has suffered no damage at all or only significantly less damage than the aforementioned flat fee.

(4) Any further damage caused by delay is not to be compensated by NELE Kosmetik GmbH. The rights of the Buyer according to § 8 of these GTC and the statutory rights of NELE Kosmetik GmbH, especially in the event of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or supplementary performance), remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance, Palette Exchange

(1) Delivery is ex works, which is also the place of performance for the delivery and any supplementary performance. At the request and expense of the Buyer, the Goods will be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, NELE Kosmetik GmbH is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.

(2) The risk of accidental loss and accidental deterioration of the Goods passes to the Buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay passes upon delivery of the Goods to the forwarder, the carrier, or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance. Handover or acceptance is deemed to have taken place if the Buyer is in default of acceptance.

(3) If the Buyer is in default of acceptance, fails to perform an act of cooperation, or if the delivery by NELE Kosmetik GmbH is delayed for other reasons for which the Buyer is responsible, NELE Kosmetik GmbH is entitled to demand compensation for the resulting damage including additional expenses (e.g., storage costs). For this, NELE Kosmetik GmbH calculates a flat-rate compensation of 0.5% of the net price (delivery value) for each completed calendar week of delay, but no more than 5% of the delivery value of the Goods, starting with the delivery period or – in the absence of a delivery period – with the notification of readiness for shipment of the Goods. If the damage consists of storage costs for NELE Kosmetik GmbH, the flat-rate compensation is at least €5.00 per palette for each completed calendar week of delay. Proof of higher damages and the statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) of NELE Kosmetik GmbH remain unaffected; however, the flat fee shall be offset against further monetary claims. The Buyer is permitted to prove that NELE Kosmetik GmbH has suffered no damage at all or only significantly less damage than the aforementioned flat fee. Storage costs after the transfer of risk shall be borne by the Buyer.

(4) The acts of cooperation mentioned in para. 3 concern, in the case of mixed contracts, in particular the contractually agreed provision of materials or raw materials. If no time for provision is contractually determined, the Buyer must provide the required materials or raw materials immediately.

(5) If, in individual cases, collection of the Goods by the Buyer at the registered office of NELE Kosmetik GmbH is agreed, this must take place – unless otherwise specified – during opening hours. The same applies to any acts of cooperation by the Buyer if these are to take place at the registered office of NELE Kosmetik GmbH. The opening hours of NELE Kosmetik GmbH are Mon. – Thu.: 08:00 AM – 04:00 PM and Fri.: 08:00 AM – 12:00 PM, subject to changes announced on the website (company holidays, public holidays, etc.).

(6) NELE Kosmetik GmbH and the Buyer agree on the validity of the so-called “Bonn Palette Exchange” clause for the delivery of Goods on so-called Euro-palettes. For deliveries by NELE Kosmetik GmbH, the Buyer must hand over the same number of equivalent or higher-quality Euro-palettes to the forwarder/carrier at the place of delivery. The criterion for this is the EPAL quality classification as of 11/2021 (in descending order: New; Class A; Class B; Class C). If no palette exchange takes place at the time of delivery or only to a lesser extent in terms of quantity or quality, the delivered palettes are considered purchased and will be invoiced to the Buyer. The prices determined monthly by “Palettenreport.de” for the respective palette class will be applied.

§ 5 Prices and Payment Terms

(1) Unless otherwise agreed in individual cases, the current prices of NELE Kosmetik GmbH at the time of the conclusion of the contract apply, ex works, plus statutory VAT.

(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the Buyer bears the transport costs from the factory and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer.

(3) Payment of the purchase price is made by advance payment or according to a separate agreement. NELE Kosmetik GmbH reserves the right to carry out deliveries – also within the framework of an ongoing business relationship – in whole or in part only against advance payment. NELE Kosmetik GmbH shall declare a corresponding reservation at the latest with the order confirmation.

(4) Upon expiry of the aforementioned payment period, the Buyer is in default. The purchase price is to be subject to interest during the period of default at the applicable statutory default interest rate. NELE Kosmetik GmbH reserves the right to assert further damage caused by delay. Vis-à-vis merchants, the claim of NELE Kosmetik GmbH to the commercial maturity interest (§ 353 HGB) remains unaffected.

(5) The Buyer is only entitled to offsetting or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the counter-rights of the Buyer, in particular according to § 7 para. 6 sentence 2 of these GTC, remain unaffected.

(6) If it becomes apparent after the conclusion of the contract (e.g., by an application for the opening of insolvency proceedings) that the claim of NELE Kosmetik GmbH to the purchase price is jeopardized by the Buyer’s lack of ability to perform, NELE Kosmetik GmbH is entitled to refuse performance according to statutory regulations and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made items), NELE Kosmetik GmbH can declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.

§ 6 Retention of Title

(1) NELE Kosmetik GmbH retains title to the Goods sold until full payment of all its current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

(2) The Goods subject to retention of title may neither be pledged to third parties nor transferred by way of security before full payment of the secured claims. The Buyer must notify NELE Kosmetik GmbH immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties access (e.g., seizures) the Goods belonging to it.

(3) In the event of behavior by the Buyer in breach of contract, in particular non-payment of the due purchase price, NELE Kosmetik GmbH is entitled to withdraw from the contract according to statutory regulations and/or to demand the return of the Goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; rather, NELE Kosmetik GmbH is entitled to merely demand the return of the Goods and reserve the right of withdrawal. If the Buyer does not pay the due purchase price, NELE Kosmetik GmbH may only assert these rights if it has previously set the Buyer a reasonable deadline for payment without success or if such a setting of a deadline is dispensable according to statutory regulations.

(4) Until revoked according to (c) below, the Buyer is 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 apply additionally.

(a) The retention of title extends to the products resulting from the processing, mixing, or combining of its Goods at their full value, whereby NELE Kosmetik GmbH is considered the manufacturer. If, in the case of processing, mixing, or combining with goods of third parties, their right of ownership remains, NELE Kosmetik GmbH acquires co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. In all other respects, the same applies to the resulting product as to the Goods delivered under retention of title.

(b) The Buyer hereby assigns to NELE Kosmetik GmbH as security all claims against third parties arising from the resale of the Goods or the product, either in total or in the amount of its possible co-ownership share according to the preceding paragraph. NELE Kosmetik GmbH accepts the assignment. The obligations of the Buyer mentioned in para. 2 also apply in view of the assigned claims.

(c) The Buyer remains authorized to collect the claim alongside NELE Kosmetik GmbH. NELE Kosmetik GmbH undertakes not to collect the claim as long as the Buyer meets his payment obligations to it, there is no deficiency in his ability to perform, and NELE Kosmetik GmbH does not assert the retention of title by exercising a right according to para. 3. If this is the case, however, NELE Kosmetik GmbH can demand that the Buyer informs it of the assigned claims and their debtors, provides all information required for collection, hands over the associated documents, and notifies the debtors (third parties) of the assignment. Furthermore, in this case, NELE Kosmetik GmbH is entitled to revoke the Buyer’s authority to further resell and process the Goods subject to retention of title.

(d) If the realizable value of the securities exceeds the claims of NELE Kosmetik GmbH by more than 10%, it will release securities of its choice at the Buyer’s request.

§ 7 Claims for Defects by the Buyer, Cooperation Obligations of the Buyer

(1) The statutory provisions apply to the rights of the Buyer in the event of material and legal defects (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the statutory special provisions for final delivery of the unprocessed Goods to a consumer remain unaffected, even if the consumer has processed them further (supplier recourse according to §§ 478 BGB). Claims from supplier recourse are excluded if the defective Goods were further processed by the Buyer or another entrepreneur, e.g., by installation into another product.

(2) Within a tolerance of 10% of the total order quantity, production-related over- or under-deliveries by NELE Kosmetik GmbH are permissible. The total price changes proportionally according to their scope. Within this tolerance, claims for damages by the Buyer against NELE Kosmetik GmbH are excluded.

(3) The basis of NELE Kosmetik GmbH’s liability for defects is primarily the agreement reached on the quality of the Goods. All product descriptions and manufacturer specifications that are the subject of the individual contract or were made public by NELE Kosmetik GmbH (in particular in catalogs or on its website) at the time the contract was concluded are considered an agreement on the quality of the Goods.

(4) Insofar as the quality has not been agreed upon, it is to be assessed according to the statutory regulation whether a defect exists or not (§ 434 para. 1 sentence 2 and 3 BGB). However, it assumes no liability for public statements by the manufacturer or other third parties (e.g., advertising statements) to which the Buyer has not pointed out to NELE Kosmetik GmbH as being decisive for his purchase.

(5) NELE Kosmetik GmbH is generally not liable for defects that the Buyer knows or is grossly negligent in not knowing at the time the contract is concluded (§ 442 BGB). Furthermore, the Buyer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of materials and other Goods intended for installation or other further processing, an inspection must in any case take place immediately before processing. If a defect appears during delivery, inspection, or at any later point in time, NELE Kosmetik GmbH must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within five working days of delivery, and defects not recognizable during inspection within the same period from discovery. If the Buyer fails to carry out the proper inspection and/or notification of defects, the liability of NELE Kosmetik GmbH for the defect not reported, or not reported on time or properly, is excluded according to statutory regulations. NELE Kosmetik GmbH is not liable – subject to special individual contractual agreements – for damage due to incorrect use, storage, or modification of the Goods by the Buyer or third parties, unless these are vicarious agents of NELE Kosmetik GmbH.

(6) If the delivered item is defective, NELE Kosmetik GmbH can first choose whether it provides supplementary performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement delivery). The right of NELE Kosmetik GmbH to refuse supplementary performance under the statutory requirements remains unaffected.

(7) NELE Kosmetik GmbH is entitled to make the owed supplementary performance dependent on the Buyer paying the due purchase price. However, the Buyer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.

(8) The Buyer must give NELE Kosmetik GmbH the time and opportunity required for the owed supplementary performance, in particular to hand over the rejected Goods for testing purposes. In the case of replacement delivery, the Buyer must return the defective item to NELE Kosmetik GmbH according to statutory regulations.

(9) The expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor, and material costs, shall be borne or reimbursed by NELE Kosmetik GmbH in accordance with the statutory regulation if a defect actually exists. Otherwise, NELE Kosmetik GmbH can demand reimbursement from the Buyer for the costs arising from the unjustified request for defect rectification (in particular testing and transport costs), unless the lack of defectiveness was not recognizable to the Buyer.

(10) In urgent cases, e.g., in the event of a threat to operational safety or to avert disproportionate damage, the Buyer has the right to eliminate the defect himself and to demand reimbursement from NELE Kosmetik GmbH for the objectively necessary expenses. NELE Kosmetik GmbH must be notified immediately, if possible beforehand, of such self-remedy. The right of self-remedy does not exist if NELE Kosmetik GmbH would be entitled to refuse a corresponding supplementary performance according to statutory regulations.

(11) If the supplementary performance has failed or a reasonable deadline to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to statutory regulations, the Buyer can withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.

(12) Claims of the Buyer for damages or reimbursement of futile expenses also exist in the case of defects only in accordance with § 8 of these GTC and are otherwise excluded.

(13) The Buyer is – as already mentioned in § 3 items (4) to (6) – obliged to perform acts of cooperation. In the case of a mixed contract, this includes, in addition to the timely and contractually compliant provision of materials and raw materials as well as the required formulation specifications, the obligation to inform NELE Kosmetik GmbH immediately of any deviation from what was contractually agreed or from the first provision batch (e.g., changes to the bulk mass). NELE Kosmetik GmbH is not obliged to inspect the materials and raw materials received itself. Furthermore, NELE Kosmetik GmbH is not obliged to ensure the compatibility of bulk and packaging materials. The Buyer’s cooperation obligations in a mixed contract also include ensuring that delivered materials and raw materials are delivered properly. Improper delivery (wrong packaging, oversized containers, etc.) leads to a claim for damages regarding the additional effort of NELE Kosmetik GmbH.

(14) NELE Kosmetik GmbH can reject a deviation of the materials and raw materials made by the Buyer after the conclusion of the contract and demand delivery of what was originally agreed. NELE Kosmetik GmbH is not responsible for a defect in the work produced by it if the Buyer has made changes to the provided materials and raw materials without informing NELE Kosmetik GmbH or if NELE Kosmetik GmbH has rejected the deviating delivery. This does not apply if the defect did not occur directly or indirectly due to the deviation. The burden of proof for this lies with the Buyer.

(15) Any obligation to give notice of defects within the meaning of § 377 HGB of NELE Kosmetik GmbH is limited to defects that become apparent during the incoming goods inspection under external assessment including the delivery documents (e.g., transport damage, incorrect and short delivery).

§ 8 Other Liability

(1) Unless otherwise stated in these GTC including the following provisions, NELE Kosmetik GmbH is liable in the event of a breach of contractual and non-contractual obligations according to statutory regulations.

(2) NELE Kosmetik GmbH is liable for damages – regardless of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, NELE Kosmetik GmbH is liable, subject to statutory limitations of liability (e.g., care in own affairs; insignificant breach of duty), only

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

b) for damages resulting from the breach of an essential contractual obligation (obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely); in this case, however, the liability of NELE Kosmetik GmbH is limited to the compensation of the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from para. 2 also apply to third parties as well as in the event of breaches of duty by persons (also in their favor) whose fault NELE Kosmetik GmbH is responsible for according to statutory regulations. They do not apply insofar as a defect was fraudulently concealed or a guarantee for the quality of the Goods was assumed and for claims of the Buyer under the Product Liability Act.

(4) Due to a breach of duty that does not consist of a defect, the Buyer can only withdraw or terminate if NELE Kosmetik GmbH is responsible for the breach of duty. A free right of termination for the Buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.

§ 9 Limitation Period

(1) Deviating from § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.

(2) The aforementioned 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 individual cases. Claims for damages by the Buyer according to § 8 para. 2 sentence 1 and sentence 2

(a) as well as under the Product Liability Act shall expire exclusively according to the statutory limitation periods.

§ 10 Choice of Law and Jurisdiction

(1) The law of the Federal Republic of Germany applies to these GTC and the contractual relationship between NELE Kosmetik GmbH and the Buyer, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) 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 Nuremberg (Bavaria, Germany). The same applies if the Buyer is an entrepreneur within the meaning of § 14 BGB. However, NELE Kosmetik GmbH is in all cases also entitled to bring an action at the place of performance of the delivery obligation according to these GTC or a prior individual agreement or at the general place of jurisdiction of the Buyer. Overriding statutory provisions, in particular regarding exclusive jurisdictions, remain unaffected.

General Terms and Conditions of Purchase

Nele Kosmetik GmbH

Ziegeleistraße 3

91338 Igensdorf

§ 1 General Scope, Formal Requirements

(1) These General Terms and Conditions of Purchase (GCP) apply to all business relationships of NELE Kosmetik GmbH with its business partners and suppliers (“Seller”). The GCP only apply if the Seller is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law within the meaning of § 310 para. 1 BGB.

(2) The GCP apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), regardless of whether the Seller manufactures the Goods himself or purchases them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GCP in the version valid at the time of the Buyer’s order or, in any case, in the version last communicated to him in text form, shall also apply as a framework agreement for similar future contracts, without NELE Kosmetik GTC having to refer to them again in each individual case.

(3) These GCP apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Seller shall only become part of the contract if and to the extent that NELE Kosmetik GmbH has expressly agreed to their validity in writing. This requirement of consent applies in every case, for example, even if NELE Kosmetik GmbH accepts the Seller’s deliveries without reservation while being aware of the Seller’s general terms and conditions.

(4) Individual agreements made with the Seller in individual cases (including collateral agreements, supplements, and amendments) shall in any case take precedence over these GCP. Subject to proof to the contrary, a written contract or written confirmation from NELE Kosmetik GmbH is authoritative for the content of such agreements.

(5) Legally relevant declarations and notices by the Seller in relation to the contract (e.g., setting of deadlines, reminder, withdrawal) must be submitted in writing, i.e., in written or text form (e.g., letter, email, fax). Statutory formal requirements and further evidence, especially in case of doubts about the legitimacy of the declarant, remain unaffected unless otherwise specified below.

(6) The performance of legal acts by a third party for the Seller requires specific proof of authorization, unless NELE Kosmetik GmbH has obtained knowledge of this otherwise or expressly waives it. The burden of proof for this lies with the Seller. When unilateral legal acts are performed by a third party, authorization must in any case be proven by presenting a power of attorney document within the meaning of § 174 sentence 1 BGB. In the event that authorization is not proven in the above sense, the legal act shall be deemed rejected by NELE Kosmetik GmbH without delay, unless NELE Kosmetik GmbH was informed of the authorization by the Seller.

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

§ 2 Conclusion of Contract

(1) An order from NELE Kosmetik GmbH is considered binding at the earliest upon written submission or confirmation. The Seller must point out obvious errors (e.g., typing and calculation errors) and incompleteness of the order, including the order documents, to NELE Kosmetik GmbH for the purpose of correction or completion before acceptance; otherwise, the contract is deemed not concluded.

(2) The Seller is required to confirm the order from NELE Kosmetik GmbH in writing within a period of three weeks (acceptance). A late acceptance is considered a new offer and requires acceptance by NELE Kosmetik GmbH.

§ 3 Delivery Time and Delay in Delivery

(1) The delivery time specified by NELE Kosmetik GmbH in the order is binding.

(2) The Seller is obliged to inform NELE Kosmetik GmbH immediately in writing if he is likely not to be able to meet agreed delivery times – for whatever reason.

(3) If the Seller does not perform his service or does not perform it within the agreed delivery time or if he falls into arrears, the rights of NELE Kosmetik GmbH – in particular to withdrawal and damages – are determined according to statutory regulations. The provisions in para. 4 remain unaffected.

(4) If the Seller is in default, NELE Kosmetik GmbH can – in addition to further statutory claims – demand flat-rate compensation for its damage caused by delay in the amount of 0.25% of the net price per completed calendar day, but in total no more than 5% of the net price of the Goods delivered late. NELE Kosmetik GmbH reserves the right to prove that a higher damage has occurred. The Seller reserves the right to prove that no damage at all or only a significantly lower damage has occurred.

(5) NELE Kosmetik GmbH is entitled to return deliveries made before or after the agreed date at the Seller’s expense or to charge corresponding storage costs. The acceptance of a late delivery/service does not constitute a waiver of the claims against the Seller to which NELE Kosmetik GmbH is entitled due to the delay.

(6) Labor disputes (strikes, lockouts), operational disruptions, as well as operational restrictions (also due to state or official orders) and similar cases that result in a reduction in the consumption of the ordered Goods shall release NELE Kosmetik GmbH from the obligation to accept/take delivery for the duration and to the extent of their effect. A default of acceptance by NELE Kosmetik GmbH does not occur in such a case.

§ 4 Performance, Delivery, Transfer of Risk, Default of Acceptance

(1) The Seller is not entitled to have the performance owed by him carried out by third parties (e.g., subcontractors) without the prior written consent of NELE Kosmetik GmbH. The Seller bears the procurement risk for his services, unless otherwise agreed in individual cases (e.g., limitation to stock).

(2) Delivery within Germany is “free house” to the place specified in the order. If the destination is not specified and nothing else is agreed, the delivery must be made to the registered office of NELE Kosmetik GmbH at Ziegeleistraße 3, 91338 Igensdorf. The respective destination is also the place of performance for the delivery and any supplementary performance (obligation to deliver).

(3) Delivery must take place during opening hours, unless NELE Kosmetik GmbH has agreed in writing to a delivery at another time. The opening hours of NELE Kosmetik GmbH are Mon. – Thu.: 08:00 AM – 04:00 PM and Fri.: 08:00 AM – 12:00 PM, subject to changes announced on the website (company holidays, public holidays, etc.).

(4) A delivery note stating the date (issue and dispatch), content of the delivery (article number and quantity) as well as the order identifier and batch number of NELE Kosmetik GmbH (date and number) must be enclosed with the delivery. If the delivery note is missing or incomplete, NELE Kosmetik GmbH is not responsible for the resulting delays in processing and payment. A corresponding dispatch notice with the same content must be sent to NELE Kosmetik GmbH separately from the delivery note.

(5) The risk of accidental loss and accidental deterioration of the goods passes to NELE Kosmetik GmbH upon handover at the place of performance. If acceptance is agreed upon, this determines the transfer of risk. The statutory provisions of the law on sales and contracts for work and materials also apply accordingly to acceptance. Handover or acceptance is deemed equivalent if NELE Kosmetik GmbH is in delay of acceptance.

(6) The statutory provisions apply to the occurrence of NELE Kosmetik GmbH’s delay in acceptance. However, the Seller must expressly offer its performance even if a specific or determinable calendar time has been agreed for an act or cooperation by NELE Kosmetik GmbH (e.g., provision of materials). If NELE Kosmetik GmbH is in delay of acceptance, the Seller may claim compensation for its additional expenses in accordance with statutory provisions (§ 304 BGB). If the contract concerns non-fungible goods to be manufactured by the Seller (custom-made products), the Seller has further rights only if NELE Kosmetik GmbH has committed to cooperate and is responsible for the failure to cooperate.

(7) NELE Kosmetik GmbH does not enter into delay of acceptance if the Seller has offered its delivery outside the opening hours as defined in para. (3), unless otherwise agreed.

§ 5 Prices and Payment Terms

(1) The price stated in the order is binding. All prices include statutory value-added tax unless it is shown separately.

(2) Unless otherwise agreed in an individual case, the price includes all services and ancillary services of the Seller (e.g., assembly, installation) as well as all incidental costs (e.g., proper packaging, transport costs including any transport and liability insurance).

(3) Unless otherwise agreed in an individual case, the agreed price is due for payment within 30 calendar days from complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If NELE Kosmetik GmbH makes payment within 14 calendar days, the Seller grants NELE Kosmetik GmbH a 3% discount on the net invoice amount. In the case of bank transfer, payment is deemed timely if NELE Kosmetik GmbH’s transfer order is received by its bank before expiry of the payment deadline; NELE Kosmetik GmbH is not responsible for delays caused by the banks involved in the payment process.

(4) NELE Kosmetik GmbH does not owe interest on maturity. The statutory provisions apply to payment default.

(5) NELE Kosmetik GmbH is entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. NELE Kosmetik GmbH is particularly entitled to withhold due payments as long as it still has claims against the Seller arising from incomplete or defective performance.

(6) The Seller has a right of set-off or retention only on the basis of legally established or undisputed counterclaims.

§ 6 Confidentiality and Retention of Title

(1) NELE Kosmetik GmbH reserves ownership and copyright in formulations, filling instructions, manufacturing instructions, illustrations, drawings, calculations, execution instructions, product descriptions, analyses, and other documents. Such documents are to be used exclusively for the contractual performance and must be returned to NELE Kosmetik GmbH after completion of the contract. The documents must be kept confidential from third parties, including after termination of the contract. The confidentiality obligation expires only when and to the extent that the knowledge contained in the documents provided has become generally known.

(2) The above provision applies accordingly to substances and materials (e.g., raw materials, digital data, finished and semi-finished products) as well as to tools, templates, samples, and other items that NELE Kosmetik GmbH provides to the Seller for manufacturing. Such items must be stored separately at the Seller’s expense – as long as they are not being processed – and insured to a reasonable extent against destruction, loss, and theft.

(3) Processing, mixing, or combining (further processing) of provided items by the Seller is carried out on behalf of NELE Kosmetik GmbH. The same applies to further processing of the delivered goods by NELE Kosmetik GmbH, so that it is deemed the manufacturer and acquires ownership of the product at the latest upon further processing in accordance with statutory provisions.

(4) Transfer of ownership of the goods to NELE Kosmetik GmbH must take place unconditionally and regardless of payment of the price. However, if NELE Kosmetik GmbH accepts in an individual case the Seller’s offer of transfer of ownership conditional upon payment of the purchase price, the Seller’s retention of title expires at the latest upon payment of the purchase price for the delivered goods. NELE Kosmetik GmbH remains authorized in the ordinary course of business to resell the goods even before payment of the purchase price, with advance assignment of the resulting claims (alternatively, application of simple retention of title extended to resale). All other forms of retention of title are thereby excluded, in particular extended retention of title, forwarded retention of title, and retention of title extended to further processing.

§ 7 Defective Delivery

(1) NELE Kosmetik GmbH’s rights in the event of material defects and defects of title in the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating, or user instructions) and in the event of other breaches of duty by the Seller are governed by statutory provisions, unless otherwise specified below.

(2) In accordance with statutory provisions, the Seller is particularly liable for ensuring that the goods have the agreed quality at the time of transfer of risk to NELE Kosmetik GmbH. Product descriptions that are the subject of the respective contract – in particular through designation or reference in NELE Kosmetik GmbH’s order – or that are incorporated into the contract in the same manner as these GTC are deemed agreements on quality. It makes no difference whether the product description originates from NELE Kosmetik GmbH, the Seller, or the manufacturer. Any subsequent deviation from the agreed quality (e.g., change in composition; change in INCI designation) requires the written consent of NELE Kosmetik GmbH.

(3) In accordance with statutory provisions, short delivery also constitutes a defect. The agreed order quantity may be exceeded by a maximum of 5%. Short deliveries are not accepted. The values determined by NELE Kosmetik GmbH’s goods receipt inspection and quality control regarding the dimensions, quantity, and quality of the delivered items are decisive.

(4) The Seller warrants to NELE Kosmetik GmbH that the provisions of DIN EN ISO 22716 (Cosmetics – Good Manufacturing Practice (GMP) – Guidelines for Good Manufacturing Practice (ISO 22716)) in its currently valid version are complied with in its operations. In this context, NELE Kosmetik GmbH is entitled to verify compliance with the guidelines at the supplier’s premises at any time and to request corresponding evidence from the supplier confirming compliance with the “GMP provisions”.

(5) The Seller warrants to NELE Kosmetik GmbH that the provisions of REGULATION (EC) No. 1223/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 November 2009 on cosmetic products in its currently valid version are complied with in its operations. This applies in particular with regard to the valid limit values established therein and the exclusion of prohibited substances.

(6) With regard to the provisions regulated in § 7 para. (4) and (5), the Seller must provide NELE Kosmetik GmbH with a declaration of conformity upon delivery of the goods.

(7) NELE Kosmetik GmbH is not obligated to inspect the goods or make special inquiries about possible defects at the time of conclusion of the contract. Partially deviating from § 442 para. 1 sentence 2 BGB, NELE Kosmetik GmbH’s claims for defects therefore apply without restriction even if the defect remained unknown to NELE Kosmetik GmbH at the time of conclusion of the contract due to gross negligence.

(8) The statutory provisions (§§ 377, 381 HGB) apply to the commercial duty to inspect and give notice of defects, with the following provision: NELE Kosmetik GmbH’s duty to inspect under § 377 para. 1 BGB is limited to defects that are openly apparent during goods receipt inspection under external examination, including the delivery documents (e.g., transport damage, incorrect and short delivery). With regard to the Seller’s obligations pursuant to § 7 para. (4), in particular self-monitoring and quality assurance in accordance with GMP guidelines, there is no further duty to give notice of defects, as NELE Kosmetik GmbH may rely on the Seller’s obligation to comply with these GMP guidelines that the performance is manufactured, inspected, and delivered in the bindingly assured manner. This does not apply to the extent that NELE Kosmetik GmbH has actually identified a defect. The burden of proof lies with the Seller. NELE Kosmetik GmbH’s duty to give notice of defects discovered later within the meaning of § 377 para. 3 HGB remains unaffected.

(9) Within the scope of the duty to inspect described, NELE Kosmetik GmbH’s notice of defects is in any case deemed immediate and timely if it is sent within five working days from discovery or, in the case of obvious defects, from delivery. Payment of the purchase price made before identification of defects does not constitute acknowledgment that the goods are free from defects and have been delivered in accordance with regulations.

(10) Supplementary performance also includes the recreation of the bulk; NELE Kosmetik GmbH’s statutory claim for reimbursement of corresponding expenses remains unaffected. The Seller bears the expenses necessary for the purpose of inspection and supplementary performance even if it turns out that no defect actually existed. NELE Kosmetik GmbH’s liability for damages in the event of an unjustified request for remedy of defects remains unaffected; however, NELE Kosmetik GmbH is only liable in this respect if it recognized or failed to recognize through gross negligence that no defect existed.

(11) Without prejudice to NELE Kosmetik GmbH’s statutory rights and the provisions in para. 10: If the Seller fails to fulfill its obligation for supplementary performance – at NELE Kosmetik GmbH’s choice by remedying the defect (repair) or by delivering defect-free goods (replacement delivery) – within a reasonable period set by NELE Kosmetik GmbH, NELE Kosmetik GmbH may remedy the defect itself and demand reimbursement from the Seller for the necessary expenses or a corresponding advance payment. If supplementary performance by the Seller has failed or is unreasonable for NELE Kosmetik GmbH (e.g., due to particular urgency, endangerment of operational safety, or imminent occurrence of disproportionate damage), no deadline is required; NELE Kosmetik GmbH will inform the Seller of such circumstances without delay, if possible in advance.

(12) In all other respects, in the event of a material defect or defect of title, NELE Kosmetik GmbH is entitled to reduce the purchase price or withdraw from the contract in accordance with statutory provisions. Furthermore, NELE Kosmetik GmbH has a claim for damages and reimbursement of expenses in accordance with statutory provisions.

§ 8 Supplier Recourse

(1) NELE Kosmetik GmbH’s statutory recourse claims within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 BGB) are available to NELE Kosmetik GmbH without restriction in addition to claims for defects. NELE Kosmetik GmbH is particularly entitled to demand from the Seller precisely the type of supplementary performance (repair or replacement delivery) that it owes to its customer in the individual case. This does not limit NELE Kosmetik GmbH’s statutory right of choice (§ 439 para. 1 BGB).

(2) Before NELE Kosmetik GmbH acknowledges or fulfills a claim for defects asserted by its customer (including reimbursement of expenses pursuant to §§ 445a para. 1, 439 paras. 2 and 3 BGB), NELE Kosmetik GmbH will notify the Seller and request a written statement with a brief presentation of the facts. If a substantiated statement is not provided within a reasonable period and no amicable solution is reached, the claim for defects actually granted by NELE Kosmetik GmbH is deemed owed to its customer. In this case, the burden of proof to the contrary lies with the Seller.

(3) NELE Kosmetik GmbH’s claims from supplier recourse also apply if the defective goods have been further processed or assembled into another product by NELE Kosmetik GmbH or another entrepreneur, e.g., through assembly and filling.

§ 9 Product Liability

(1) If the Seller is responsible for product damage, it must indemnify NELE Kosmetik GmbH from third-party claims to the extent that the cause was set within its sphere of control and organization and it is itself liable in external relations.

(2) Within the scope of its indemnification obligation, the Seller must reimburse expenses pursuant to §§ 683, 670 BGB arising from or in connection with third-party claims, including recall actions carried out by NELE Kosmetik GmbH. NELE Kosmetik GmbH will inform the Seller – to the extent possible and reasonable – about the content and scope of recall measures and give it an opportunity to comment. Further statutory claims remain unaffected.

(3) The Seller must take out and maintain product liability insurance with a lump-sum coverage of at least EUR 3,000,000 per personal injury/property damage.

§ 10 Limitation

(1) The mutual claims of the contracting parties are subject to limitation in accordance with statutory provisions, unless otherwise specified below.

(2) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims for defects is 3 years from transfer of risk. If acceptance is agreed upon, the limitation period begins with acceptance. The 3-year limitation period also applies accordingly to claims arising from defects of title, whereby the statutory limitation period for third-party claims in rem (§ 438 para. 1 no. 1 BGB) remains unaffected; claims arising from defects of title furthermore do not become time-barred in any case as long as the third party can still assert the right against NELE Kosmetik GmbH – in particular due to lack of limitation.

(3) The limitation periods of sales law, including the above extension, apply – to the statutory extent – to all contractual claims for defects. To the extent that NELE Kosmetik GmbH also has non-contractual claims for damages due to a defect, the regular statutory limitation (§§ 195, 199 BGB) applies, unless application of the limitation periods of sales law leads to a longer limitation period in the individual case.

§ 11 Compliance

(1) The Seller undertakes, within the business relationship with NELE Kosmetik GmbH, neither in business dealings nor in dealings with public officials, to offer or grant, promote, or accept advantages that violate applicable anti-corruption regulations.

(2) The Seller undertakes, within the business relationship with NELE Kosmetik GmbH, not to enter into agreements or concerted practices with other companies that have as their object or effect the prevention, restriction, or distortion of competition in accordance with applicable antitrust law provisions.

(3) The Seller assures that it complies with the applicable laws regulating the general minimum wage and obliges subcontractors commissioned by it to the same extent. Upon request, the Seller provides evidence of compliance with the above assurance. In the event of a breach of the above assurance, the Seller indemnifies NELE Kosmetik GmbH from third-party claims and is obligated to reimburse fines imposed on NELE Kosmetik GmbH in this connection.

(4) The Seller will comply with the respective statutory regulations on dealing with employees, environmental protection, and occupational safety and will work to reduce adverse effects on people and the environment in its activities. For this purpose, the Seller will establish and further develop a management system in accordance with ISO 9001 within the scope of its possibilities. Furthermore, the Seller will observe the principles of the UN Global Compact Initiative, which essentially concern the protection of international human rights, the abolition of forced and child labor, the elimination of discrimination in recruitment and employment, and responsibility for the environment.

(5) The Seller warrants and assures that its deliveries comply with Regulation (EC) No. 1907/2006 on the Registration, Evaluation, Authorization and Restriction of Chemicals (“REACH Regulation”). In particular, the Seller warrants that the substances contained in the products it supplies have been pre-registered or, after expiry of the transitional periods, registered to the extent required under the provisions of the REACH Regulation, and that safety data sheets in accordance with the provisions of the 3rd Regulation or the information required pursuant to Art. 32 REACH Regulation are made available. If the Seller supplies articles within the meaning of Art. 3 REACH Regulation, it particularly also warrants that it fulfills its obligation to pass on certain information, especially with regard to SVHC (Art. 33 REACH Regulation). A Seller based outside the EU undertakes to fulfill the obligations existing under the REACH Regulation as an importer.

(6) In the event of suspicion of a breach of the obligations under § 11 paras. 1 to 5, the Seller must clarify possible breaches without delay and inform NELE Kosmetik GmbH about the clarification measures taken. If the suspicion proves to be justified, the Seller must inform NELE Kosmetik GmbH within a reasonable period about the internal company measures it has taken to prevent future breaches. If the Seller fails to fulfill these obligations within a reasonable period, NELE Kosmetik GmbH reserves the right to withdraw from contracts with it or terminate them with immediate effect.

(7) In the event of serious legal violations by the Seller and breaches of the provisions in § 11 paras. 1 to 5, NELE Kosmetik GmbH reserves the right to withdraw from existing contracts or terminate them without notice.

§ 12 Choice of Law and Jurisdiction

(1) The law of the Federal Republic of Germany applies to these GTC and the contractual relationship between NELE Kosmetik GmbH and the Seller, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the Seller 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 – including international – place of jurisdiction for all disputes arising from the contractual relationship is Nuremberg (Bavaria, Germany). The same applies if the Seller is an entrepreneur within the meaning of § 14 BGB. However, in all cases NELE Kosmetik GmbH is also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a priority individual agreement or at the Seller’s general place of jurisdiction. Priority statutory provisions, in particular regarding exclusive jurisdictions, remain unaffected.