Terms and Conditions

Contents

  • § 1 Scope of application
  • § 2 General Information
  • § 3 Delivery
  • § 4 Prices, delivery costs
  • § 5 Retention of title
  • § 6 Payment deadline and payment terms
  • § 7 Receivables
  • § 8 Notice of defects obligation and guarantee
  • § 9 Liability
  • § 10 Copyright
  • § 11 Non-disclosure and data protection
  • § 12 Compliance
  • § 13 Place of performance and place of jurisdiction
  • § 14 Final provisions

§ 1 Scope of application

From 31 July 2021, these General Terms and Conditions (‘T&Cs’) apply to all sales and/or deliveries by ItemLab GmbH, Hans-Böckler-Straße 62a, 40764 Langenfeld, Germany, and any affiliated companies within the meaning of § 15 et seq. of the Stock Corporation Act (Aktiengesetz, AktG) to companies within the meaning of § 14 of the German Civil Code (Bundesgesetzbuch,BGB). ItemLab GmbH and its affiliated companies within the meaning of §§ 15 et seq. of the AktG are hereinafter referred to as ‘Seller’. Buying companies and/or companies to be supplied in Germany, in the European Union (‘EU’) or in third countries outside the EU are hereinafter referred to as‘Customer’. The various ItemLab® trademarks belong to the companies in the ItemLab Group. Buyers have high expectations whenit comes to these trademarks. As such, only original sealed ItemLab product packaging should be sold to the consumer.

§ 2 General Information

2.1 These General Terms and Conditions only apply to companies within the meaning of §§ 14 and 310 (1) of the BGB and to legal persons under public law(hereinafter referred to as ‘Customers’). By placing the order and/or by ordering, the Customer agrees in full to the following General Terms and Conditions of ItemLab GmbH, Hans-Böckler-Straße 62a, 40764 Langenfeld, Germany, in their respectively valid version. Deviatingor conflicting conditions or general terms and conditions of the Customer are not accepted unless there is a separate written agreement from ItemLab GmbH that accepts other conditions. Such a written acceptance agreement between the Customer and ItemLab GmbH shall always be limited to12 months. After this date, the acceptance agreement must be renewed for it to be valid.

2.2 The presentation and advertisement of items in the online shop of ItemLab GmbH does not constitute a binding offer to conclude a purchase agreement. By placing anorder in the online shop by clicking on the ‘Complete order’ button, the Customer is making a legally binding order. The Customer is bound to the order for a periodof four (4) weeks after placing the order. ItemLab GmbH shall confirm the order placed through the online shopto the Customer by e-mail. The e-mail does not containany binding acceptance of the order unless this is givenin addition to the confirmation of receipt. All offers, regardless of whether they are made by phone, fax, online, by e-mail or in any other form, are only binding for ItemLab GmbH if they have been confirmed by a written order confirmation, the ordered goods are issued for delivery and/or the Customer has been issued an invoice.

2.3 ItemLab GmbH’s offering is exclusively for commercial Customers or entrepreneurs within the meaning of § 1 of the German Commercial Code (Handelsgesetzbuch,HGB) or § 14 of the BGB. The Customer has the option of creating its own user account and therefore registering as an official Customer in ItemLab GmbH’s trading system. A valid trading licence/excerpt from the commercial register is required to register as a Customer. Consumers are excluded from ItemLab GmbH’s offering. A consumer is any natural person who enters into a legal transaction for purposes which are predominantly neither commercial nor relate to self-employment.

2.4 The data required to create a user account must be complete and truthful. The Customer is responsible for monitoring and entering any subsequent changes to personal data and/or any other relevant business data.

2.5 The password chosen by the Customer must be kept secret under all circumstances and never shared with third parties. Failure to comply with the aforementioned obligation entitles ItemLab GmbH to close the current Customer account and to cancel or reverse any outstanding and/or complete orders.

§ 3 Delivery

3.1 Delivery is at the risk and cost of the Customer. As soon as ItemLab GmbH has passed the goods over to a transport company, the risk, including the risk of accidental deterioration, transfers to the Customer. This also applies to partial deliveries. ItemLab GmbH is only liablefor negligence if it or its agents are guilty of intent or gross negligence. Delivery is made to the delivery address given by the Customer. If no special agreements are in place, ItemLab GmbH is free to choose the delivery method.

3.2 If ItemLab GmbH bears risk up to the destination for the goods as a result of separate written agreements, risk transfers to the Customer no later than handover at the first loading point at the destination.

3.3 Delivery is subject to timely and correct self-delivery:if ItemLab GmbH is unable to perform as required, ItemLab GmbH shall be released from performance even if it has concluded a congruent hedging transaction with the Customer. This only applies if ItemLab GmbH has not culpably caused this circumstance and there is no temporary impediment to performance on the part of a sub-supplier. In such a case, the Customer will benotified of this immediately. Consideration alreadymade by the Customer shall be refunded immediately. Further Customer claims against ItemLab GmbH areexcluded.

3.4 Information concerning delivery times is generally non-binding. The period of performance is extended if unforeseen obstacles beyond our control arise, e.g. operational disruptions, strikes, natural disasters, delivery embargoes, delays in the delivery of essential materials, insofar as such obstacles demonstrably have a significant impact on the delivery of the object of performance and we are not responsible for them. This also applies if these circumstances arise for sub-suppliers. The period of performance is extended in accordance with the period of such measures andobstacles. We are also not responsible for the aforementioned circumstances if they arise during an existing delay.

3.5 Partial deliveries are permitted within the set delivery period provided that there are no disadvantages for use by the Customer.

3.6 Unless the Customer has agreed a fixed delivery date with ItemLab GmbH, it is obliged to accept ItemLab GmbH deliveries on all days of the week; for partial deliveries, there may be several deliveries in a week.

3.7 Any claims for compensation damages against ItemLab GmbH for non-performance or a delay are excluded, unless there is intent or gross negligence. Delivery delays by ItemLab GmbH are determined based on legal provisions. However, in any case, a written reminder is required from the Customer.

§ 4 Prices, delivery costs

4.1 Unless otherwise explicitly indicated, all prices are net prices plus statutory VAT plus any packaging and delivery costs and fees.

4.2 The current packaging and delivery prices of ItemLab GmbH apply to net goods values of EUR 100.00 or more. For deliveries where the net goods value is less than EUR 100.00, an additional processing fee per delivery of EUR10.00 will be charged plus VAT. Delivery to Germany is free if the net goods value is EUR 150 or more. ItemLab GmbH reserves the right to choose the delivery method– package delivery, grouped delivery or direct delivery – depending on the net weight of the delivery.

4.3 Discounts require a separate written agreement with the Seller.

4.4 Price changes within the scope of a purchase agreement are permitted if there are more than 4 weeks between conclusion of Contract and the agreed delivery date. If wages, cost of materials, exchange rates or market prices increase within this period, ItemLab GmbH is entitled to reasonably increase the price in accordance with the cost increases. The Customer is only entitled to withdraw if the price increase does not simply exceed the increase in the general cost of living between orderand delivery to an insignificant extent.

4.5 By placing the order, the Customer is committing to the immediate acceptance of the ordered goods. ItemLab GmbH is entitled to deliver and invoice for ordered goods immediately after receipt of the Customer’s order. The same applies to goods that could not be delivered at the time of ordering (pre-orders). ItemLab GmbH is entitled to deliver pre-ordered goods to the Customer and invoice for them immediately after their arrival at the business premises of ItemLab GmbH. Pre-ordered goods must be fully accepted by the Customer within 14 calendar days of the goods becoming available, otherwise ItemLab GmbH reserves the right to cancel the order without replacement or to make price changes and discount cuts and to invoice for any processing and storage costs incurred. The same applies to direct deliveries from ItemLab GmbH suppliers to theCustomer.

4.6 For items marked as ‘pre-order’, the respective manufacturer reserves the right to not sell the item(s) at all or to sell them with changes to the information previously given (e.g. dimensions, release date) and to produce a number of them that differs from the pre-order quantity stated. All information provided by ItemLab GmbH regarding items marked as ‘pre-or der’ is based oninformation given by the manufacturer and is therefore non-binding. With respect to items marked ‘pre-order’,by clicking on the ‘Complete order’ button, the Customer is making a legally binding order by implication of the suspensive condition pursuant to § 158 (1) of the BGB that the item(s) marked as ‘pre-order’will be produced and delivered at an undefined point in the future, with conscious acceptance of any deviation from the information provided in the ItemLab online shop regarding the nature, quality, condition and quantity. The Customer was hereby expressly informed about the aforementioned circumstances. The Customer is also aware that the aforementioned deviations do not constitute defects.

§ 5 Retention of title

5.1 The goods remain the property of ItemLab GmbH until full payment of the purchase price and all claims against the Customer, including any accessory claims. If there is a permanent business relationship with the Customer, the retention of title also extends to other receivables that exist on the part of ItemLab GmbH. The same applies with respect to any future receivables on the part of ItemLab GmbH from the existing business relationship or the business relationship derived from this Contract.

5.2 The Customer is obliged to keep the reserved goods for ItemLab GmbH at its own expense and to treat them with care. It must sufficiently insure the goods delivered under retention of title, particularly against fire and theft. The Customer hereby assigns to ItemLab GmbH its claims for compensation against insurance in the amount of the receivable, which the Customer is owed from an insurance company or another party obliged to provide compensation as a result of a claim concerning the goods handed over to it under retention of title. The Seller accepts this assignment.

5.3 The Customer is entitled to sell the goods delivered to it within the scope of proper business management but not to pledge or assign them as collateral security. The Customer hereby assigns to ItemLab GmbH any receivables resulting from this sale, including interestand accessory claims, against its customers, and ItemLab GmbH accepts this assignment. The Customer is obligated to provide ItemLab GmbH with information aboutsuch receivables at any time and to provide the necessary documents, particularly invoice copies if it no longer meets its repayment obligations, and particularly if the Customer defaults on its payment obligations.

5.4 In the event of conduct that does not conform with the Contract, with particular reference to default in payment, ItemLab GmbH is entitled to withdraw from the Contract and to demand the re served goods after the unsuccessful expiry of a reasonable deadline set for the Customer. Legal provisions concerning the dispensability of a deadline remain unaffected.

§ 6 Payment deadline and payment terms

6.1 ItemLab GmbH invoices are due immediately and in full unless otherwise agreed in writing.

6.2 If the Customer defaults on payment of the purchase price, the sum of the purchase price during the default shall be subject to interest of nine per cent more than the respective base interest rate pursuant to § 247 of the German Civil Code. If ItemLab GmbH demonstrably incurred greater damage caused by delay, ItemLab GmbH is entitled to assert this.

6.3 If the Customer pays ItemLab GmbH during the default in payment, amounts are first offset against the costs incurred by ItemLab GmbH due to the delay in payment (e.g. reminder fee, warning costs, lawyer’s fees, etc.), then against interest due as a result of the late payment and finally against the outstanding payment claims. The receivable owed for the longest period of time is paid first.

6.4 The Customer is only entitled to set-off rights if its counterclaims have been established by law, are undisputed or have been accepted by ItemLab GmbH. The same applies to rights of retention of the Customer.

6.5 The assignment of claims that are owed to ItemLab GmbH from the business relationship with the Customer is permitted. The assignment of claims that are owed to the Customer from the business relationship with ItemLab GmbH is excluded.

6.6 If ItemLab GmbH is obliged to make an advance payment from a mutual contract, it can refuse the service to which it is obliged if it becomes apparent after conclusion of Contract that its claim to consideration is jeopardised by the Customer's lack of performance. In the event of a significant deterioration of the investment and the threat of insolvency, ItemLab GmbH shall only be entitled to make further deliveries against advance payment or to demand the provision of suitable collateral security.

§ 7 Receivables

7.1 ItemLab GmbH is entitled to assign the claims from the business relationship with the Customer after they aredue.

7.2 If the Customer defaults on a payment obligation, all remaining receivables from other contracts shall become due for payment immediately.

§ 8 Notice of defects obligation and guarantee

8.1 The statutory examination and notice of defects obligations pursuant to § 377 of the HGB applies. This also applies to non-business people who are self-employed in the market.

8.2 If the examination and notice of defects obligations pursuant to § 377 of the HGB are infringed, the acquired goods/services are considered to be approved in view of the respective defect and ItemLab GmbH’s liability for the defect not reported (on time) is excluded.

8.3 If goods are shipped using a carrier, a forwarding agent, by rail, ship or air, the Customer must notify the carrier, forwarding agent or delivering party of any loss or externally visible damage to the transported goods on receipt, and must take other measures to secure any claims for compensation for damages against this party. The Customer must have damage to packaging confirmed in writing on acceptance of the goods from the transport company

8.4 Defects or damages resulting from culpable or improper handling or improper installation as well as the use of unsuitable accessories or the alteration of original parts by the Customer or a third party not contracted by ItemLab GmbH are also excluded from the guarantee.

8.5 Natural wear and tear is excluded from the guarantee.

8.6 The Customer’s claims for defects become time-barred in 12 months; the limitation begins on delivery of the item, pursuant to § 438 (2) of the BGB. The statutory limitation periods for recourse claims remain unaffected under § 478 of the BGB.

8.7 Point 8.1 does not apply to:
- claims for defects relating to work on a structure and/or work where success results in the manufacture or alteration of an item or in the provision of planning or monitoring services for this;
- defects in a structure and/or an item that has been used for a structure according to its normal use and this has caused it to be defective;
- cases where the defect was fraudulently concealed and this can be provenby theCustomer;
- or cases where ItemLab GmbH has accepted a guarantee for the condition of the item, performance or durability in writing and the defect falls under this guarantee. With the exception of the legally defined information, information concerning the features of the item and/or services, technical data and specifications is solely for the description of the respective item and/or performance. These are not to be regarded as a guaranteed features within the meaning of the German Civil Code. Guarantees are not given by ItemLab GmbH.

8.8 There is no material defect if the Customer is supplied with a quantity that is too low and/or higher value goods. In the case of a delivery where the quantity is too low, there is only a claim for subsequent delivery of the quantity missing.

8.9 Costs of supplementary performance that arise through the delivery of goods to somewhere other than the place of performance shall be borne by the Customer. Replaced parts become the property of ItemLab GmbH.

8.10 Supplementary performance will only be carried out if the Customer has previously paid the agreed fee less a deduction for the defect. The retained portion may not exceed three times the cost of correction

8.11 The repair shall not be deemed to have failed after the second unsuccessful attempt.

8.12 The Customer’s right to demand reduction, withdrawal, compensation for damages (instead of or in addition to performance) or compensation for wasted expenditure in addition to supplementary performance remains unaffected by the regulations above if a defect is found.

8.13 If the purchased goods are defective and he oGmbH is responsible for this, ItemLab GmbH is entitled to choose whether to remedy the defect or to replace the goods.

8.14 Defects or claims for compensation damages are limited to the value of the goods delivered or services provided.

§ 9 Liability

9.1 ItemLab GmbH is liable for intent and gross negligence in accordance with legal provisions for compensation for damages or compensation for wasted expenditure. ItemLab GmbH is also liable for damages resulting from injury to life, limb or health. With respect to slight negligence, ItemLab GmbH is only responsible in the event of a breach of an essential contractual duty (a duty where fulfilmentmainly facilitates the proper performance of the Contract and on the fulfilment of which the Customer relies and may rely). In the event of a slightly negligent breach of an essential contractual duty, ItemLab GmbH is at most liable to the extent of typically foreseeable damage. Liability for claims from product liability law remain unaffected.

9.2 Insofar as liability for slight negligence in the event of a breach of essential contractual obligations is considered under paragraph 1, the Parties assume that typically foreseeable damage shall, in the event of material damage, amount to a maximum of €100,000.00per damage event, and €250,000.00 in total, and shall, in the event of financial loss, not exceed a maximum of €100,000.00.

9.3 If ItemLab GmbH’s liability is excluded or limited, this shall also apply to the personal liability of its employees, representatives and agents.

9.4 ItemLab GmbH is not liable for damages that are based on circumstances that were unforeseeable at the timeof conclusion of Contract and which ItemLab GmbH can neither prevent nor remedy through reasonable measures (forcemajeure).

a. If such an unforeseeable event occurs, ItemLab GmbH will inform the Customer of this. The Parties will then vote on how to proceed.

b. If ItemLab GmbH is unable to meet its contractual obligations for more than 4 weeks, the Customer is entitled to terminate or withdraw from the individual agreement and/or order concerned without notice.

9.5 Customer claims for compensation for damages can only be asserted within one year of the start of the statutory limitation period. This limitation does not apply in the event of intent and gross negligence, injury to life, limb and health or in the event of liability under product liability law.

9.6 A reversal of the burden of proof is not linked to the aforementioned regulations.

§ 10 Copyright

Content and documents created by ItemLab GmbH may be protected by copyright pursuant to § 2 of the German Copyright Act (Urheberrechtsgesetz, UrhG) unless this concerns company-specific Customer data. In addition, such work must not be used for business and/or private purposes. In particular, making such content available or sharing it with unauthorised third parties is prohibited. Any commercial sharing is prohibited.

§ 11 Non-disclosure and data protection

11.1 Personal Customer data is only used for order processing. Here, it may be necessary for us to share data with other affiliated companies of the ItemLab GmbH Group within the meaning of §s 15 et seq. of the AktG or with service providers that support ItemLab GmbH with order processing.

11.2 ItemLab GmbH is obliged to not disclose information and documentation it receives through the business relationship with the Customer during the contractual term which are to be viewed as confidential and/or are marked as confidential, and to only use such information and documentation for contractual performance. This does not apply to information and documentation that was public knowledge or was already lawfully in its possession without the non-disclosure duty or that was sent by a third party after conclusion of this Agreement without a non-disclosureduty. Data that is not personal data is only shared with third parties within the ItemLab Group and for the purposes of collection and credit checks. Staff, temporary agents, subcontractors and freelancers are bound to confidentiality by ItemLab GmbH in accordance with the legal provisions.

11.3 As a controller pursuant to Article 4 (7) of the General Data Protection Regulation (GDPR), ItemLab is entitled to process all data required to fulfil the Contract. To do so, ItemLab GmbH may use an IT system that ensures data protection through an authorisation concept and corresponding technical access restrictions. It is solely responsible for processing data and this is carried out in its own name and free of instructions, in compliance with the current legal provisions with respect to data protection.

11.4 The Customer shall treat all information that it receives from ItemLab GmbH in connection with the cooperation with ItemLab GmbH as confidential, with particular reference to its deliveries and the sending of advertising and marketing material, and will not disclose it to a third party without the prior written consent of ItemLab GmbH. This does not apply if the facts in questionare known to the public or if their disclosure is required by law or has been ordered by a court in a legally valid way.

11.5 Press releases and other disclosures relating to the cooperation of the Parties require the prior written consent of ItemLab GmbH.

11.6 The aforementioned obligations also continue to apply after the end of the business relationship.

§ 12 Compliance

12.1 The Customer is obliged to take all steps required to ensure that it and/or its employees observe the respectively applicable laws when carrying out activities and that they do not commit any criminal offences. The Customer confirms that neither it nor its employees have accepted or have offered to take bribes in connection with the conclusion or execution of this Contract and will neither accept nor offer them in the future. The Customer is obliged to refrain from any conduct that could result in criminal liability on grounds of fraud or breach of trust, bankruptcy, criminal offences relating to competition, or benefits or bribes of persons or third parties it employs.

12.2 Furthermore, the Customer is obliged to comply with the provisions of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG). This particularly includes not discriminating against other persons on grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity. The Customer must guarantee that its employees and subcontractors are equally bound to this.

12.3 By accepting these T&Cs, the Customer acknowledges the ILO Core Labour Standards (‘Declaration on Fundamental Principles and Rights at Work’).

12.4 The Customer is obliged to comply with the statutory provisions of the German Minimum Wage Law (Mindestlohngesetz, MiLoG). Should third parties assert a claim against the Customer for breach of these regulations, the Customer shall indemnify ItemLab GmbH against all claims upon first request if the breach is based on a breach of its obligations under the MiLoG.

12.5 This Contract and all individual orders may be extraordinarily terminated by either Party for good cause. Good cause is also where ItemLab GmbH has reasonable suspicion that the Customer or an agent of the Customer or an employee entrusted by the Customer or its agent is connected with associations, organisations or other groups that follow or use goals and means that constitute criminal or unconstitutional acts or a breach of rights or interests of ItemLab GmbH, or where this can be expected with a reasonable degree of probability, and as a result, ItemLab GmbH cannot beexpected to continue to adhere to the Contract and any individual orders/orders.

§ 13 Place of performance and place of jurisdiction

13.1 The place of performance for all services arising from the business relationship with ItemLab GmbH is the registered office: Hans-Böckler-Straße 62a, 40764 Langenfeld, Germany.

13.2 Düsseldorf (Germany) shall be the agreed exclusive place of jurisdiction for any claims arising from or as a result of this Contract between the Customer and ItemLab GmbH.

13.3 In terms of them entering into force and in all their effects, all legal transactions are exclusively governed by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and standards that refer to other legal systems is hereby excluded.

§ 14 Final provisions

14.1 Should individual provisions of these T&Cs be or become invalid or unenforceable in whole or in part, the validity of the rest of these T&Cs shall not be affected. In this case, ItemLab GmbH and the Customer are obliged to replace the invalid or unenforceable provision with a valid or enforceable provision that best approximates the legal and economic content or the ineffective/invalid/unenforceable provision and the purpose of the Contract. The same shall apply if the Contract contains a loophole that must be closed after the Contract has been concluded.

14.2 The transfer of Customer duties and rights from the Contract concluded with ItemLab GmbH to third parties requires the written consent of ItemLab GmbH’s management to be valid. Please do not hesitate to contact us if you have any questions about our General Terms and Conditions. Please contact us by e-mail: info@itemlab.com.

14.3 There are no verbal subsidiary agreements. No further agreements have been made outside of this Contract. Amendments or additions to these T&Cs must be made in writing or text form to be valid. This also applies to a waiver of this written form requirement.

14.4 Other language versions of this notice are for convenience only. As such, only the German version is authoritative.

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