General Terms and Conditions

General Terms and Conditions of DICO Drinks GmbH for Business Customers (Revised: 11/2024)

Note: this English version is translated from the original German version

1. Scope; General; Governing Law; Place of Performance and Venue

1.1 All business relations between DICO Drinks GmbH, Porschestrasse 4, 41836 Hückelhoven (Germany), hereinafter referred to as “DICO”, and any of its commercial customers, i.e. any customer who is an entrepreneur within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”), a legal entity under public law, or a special fund under public law, hereinafter referred to as “Customer”, are governed exclusively by the following general terms and conditions (“GTCS”); DICO does not recognise any terms and conditions of Customer that conflict with or are otherwise inconsistent with these GTCS or the law unless DICO has expressly consented to their application in writing. DICO’s silence regarding terms and conditions of Customer does not constitute DICO’s recognition thereof or consent thereto. These GTCS also apply in the event that DICO, being aware of terms and conditions of Customer that conflict with or are inconsistent with these GTCS, unconditionally accepts Customer’s performance or unconditionally provides its own performance. These GTCS will also take precedence over any terms and conditions of Customer in cases where such terms and conditions stipulate that DICO’s order acceptance constitutes DICO’s unconditional acceptance of Customer’s terms and conditions or if DICO delivers even after Customer has referred to the effectiveness of its own terms and conditions, except where DICO has expressly waived its GTCS.

1.2 Unless otherwise agreed, the place of performance for all delivery obligations of DICO and for all payment obligations and other contractual obligations of both parties is DICO’s registered office referred to in Section 1.1 of these GTCS.

1.3 Customer is not entitled to transfer any of its claims, rights and obligations without DICO’s consent. DICO is entitled to transfer its claims, rights and obligations to third parties. The foregoing is without prejudice to the provisions of section 354a of the German Commercial Code (Handelsgesetzbuch – “HGB”).

1.4 If Customer is a merchant within the meaning of the HGB, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes – including without limitation international disputes – arising directly or indirectly from the contractual relationship is DICO’s registered office referred to in Section 1.1 of these GTCS. However, DICO is also entitled to bring legal action against Customer at Customer’s registered office. Any overriding statutory provisions, including without limitation regarding exclusive jurisdiction, remain unaffected.

1.5 These GTCS and all legal relationships between DICO and Customer are governed by the substantive law of the Federal Republic of Germany without giving effect to conflict of laws provisions and international uniform law, including without limitation the UN Sales Convention.

1.6 Unless otherwise expressly agreed in writing (at least in text form, e.g. by e-mail), DICO does not, whether explicitly or implicitly, grant Customer any licenses and/or rights of use and/or transfer to Customer any patents, rights of use, trademarks, designs, or other intellectual property rights.

1.7 (i) Should any provision of these GTCS and/or of any other contract between DICO and Customer be or become invalid/void or unenforceable in whole or in part for reasons of the provisions relating to the law of general terms and conditions pursuant to sections 305 to 310 BGB, the legal provisions apply. (ii) Should any of the present or future provisions of these GTCS or of any other contract between DICO and Customer be or become invalid/void or unenforceable in whole or in part for reasons other than the provisions relating to the law of general terms and conditions pursuant to sections 305 to 310 BGB, the validity of the remaining provisions is not affected thereby unless the performance of these GTCS and/or of any other contract between DICO and Customer – including taking into consideration the provisions herein below – would constitute unreasonable hardship for one of the parties. The same applies if after signing of a contract a gap arises that needs to be filled. (iii) DICO and Customer shall replace any provision that is invalid / void / unenforceable or fill any gap that has to be closed for reasons other than the provisions relating to the law of general terms and conditions pursuant to sections 305 to 310 BGB with a valid provision that corresponds in its legal and economic content to the invalid / void / unenforceable provision and the overall purpose of the relevant contract. Section 139 BGB (partial invalidity) is expressly excluded, including in the sense of regulation of the burden of proof.

2. Offer; Offering Documents; Customer-specific Provisions

2.1 Unless otherwise stated in the agreements / confirmations / offer between DICO and Customer, DICO’s offers are subject to change without notice and without engagement. This applies also in the event that DICO has provided Customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or records – including in electronic format – in respect of which DICO reserves property rights and copyrights. Customer is not entitled to disclose any of the above to third parties except with DICO’s express written consent.

2.2 Customer’s purchase order is deemed to be a binding offer to contract which DICO has three weeks to accept.

2.3 The offer to contract is deemed accepted when DICO provides an order confirmation and/or invoice to Customer, or at the latest upon delivery of the goods.

2.4 Immediately after conclusion of the contract, DICO and Customer shall – unless this has already been done prior to conclusion of the contract – agree on product data sheets specifying in greater detail the services and products to be delivered by DICO.

2.5 Immediately after conclusion of the contract, DICO and Customer shall – unless this has already been done prior to and included in the conclusion of the contract – agree on and define so-called customer-specific orders / materials and supplies to be provided by Customer (e.g. cans plus lids and tabs, tray cartons, beverage to be filled, ingredients, pallets, shipping materials, auxiliary and production materials).

2.6 Already before conclusion of the contract, Customer shall inform DICO in writing if: (a) the goods to be delivered must be fit not only for normal use or if Customer assumes that such goods are fit for a specific purpose; (b) the goods will be used in unusual circumstances or exposed to particular stresses; (c) the goods will be used under conditions which pose a particular risk to health or safety; (d) the goods are to be used outside Germany or are to be delivered to Customer’s buyers located outside Germany; (e) in the event of improper performance, damage may typically occur in an amount that exceeds the compensation payable for our performance. Unless expressly agreed otherwise, the goods must only comply with regulations which govern their use in Germany.

3. Delivery and Passage of Risk

3.1 If DICO has entered into a congruent covering transaction (kongruentes Deckungsgeschäft), DICO’s deliveries are subject to timely and full delivery by DICO’s own suppliers. In addition, DICO’s provision of production capacities is subject to correct and timely delivery by Customer of any supplies to be provided by Customer as well as subject to timely commissioning of contract filling services and timely transmission of production plans by Customer. If DICO is unable to perform any contract filling operations for reasons beyond DICO’s reasonable control (e.g. lack of materials to be supplied by Customer), DICO shall notify Customer thereof without undue delay. In such a case, Customer is not entitled to any liquidated damages, damages, reimbursement of expenses, or indemnification under the contract.

3.2 The scope of DICO’s obligation to deliver, the delivery dates, and the owed quality of the goods in terms of type and quantity shall result exclusively from the contractual agreements made between the contracting parties and from the applicable legal provisions. DICO’s deliveries are subject to a standard tolerance of +/-10% of the order quantity / call-off quantity.

3.3 Any delivery dates or deadlines which are agreed bindingly or non-bindingly on a case-by-case basis or which may be indicated by DICO upon acceptance of the purchase order in the order acknowledgement are valid from and/or commence upon the order acknowledgement only if all technical and commercial questions related to the delivery have been conclusively clarified, provided that DICO is not responsible for the failure to clarify. Fulfilment of DICO’s obligation to deliver requires the timely and proper performance of all obligations Customer may have. DICO reserve the defence of non-performance of the contract.

3.4 Rolling Forecast: If DICO and Customer have agreed on a specific number of contract filling operations which Customer can call off, DICO warrants that it will meet Customer’s call-off requirements provided that Customer provides the agreed supplies and makes available the production plans in a timely manner. DICO shall perform the contract filling services in line with Customer’s needs and in accordance with Customer’s monthly production plans. Customer shall provide DICO with an annual forecast for the following year, broken down on a monthly basis, no later than on 1 November of the preceding year. Then, on the first day of each month, Customer shall provide further forecasts in advance for the following 13 weeks. The production plan for the first 6 weeks of the rolling forecast is binding, while the figures for the following weeks are forecasts. The production plans must include a list of the quantities of each of the beverages to be filled as well as a weekly breakdown. The agreed minimum filling quantity per filling operation must be observed. If the binding production plans deviate from the annual forecast by more than 5%, DICO has 14 calendar days to object to Customer’s planning. The parties shall then agree on a binding plan. If no agreement can be reached within two weeks, the annual forecast for the disputed weeks will be considered binding in case of doubt.

DICO shall notify Customer of any planned production stoppages at least four weeks in advance. Such production stoppages have no impact on committed capacities.

3.5 For DICO to be deemed in default of delivery as defined by the law, a reminder from Customer (at least in text form, e.g. by e-mail) is required in any case.

3.6 Customer’s rights under Section 7 (Liability) of these GTCS and DICO’s statutory rights, including without limitation in the event of relief from the obligation to perform (e.g. due to impossibility or impracticability of performance and/or subsequent performance), are not affected by the above provisions.

3.7 DICO is entitled to make partial deliveries insofar as this is reasonable for Customer to accept.

3.8 Unless otherwise stated, delivery is “ex works” (in accordance with Incoterms® 2020). The risk passes to Customer as soon as the goods have been handed over to Customer. At Customer’s request, goods are shipped to a different destination at Customer’s expense (“sale by dispatch” within the meaning of the BGB). Unless otherwise agreed, DICO is entitled to choose the shipping method (including without limitation carrier, shipment route, packaging). In that case, the risk passes to Customer as soon as the goods have been handed over to the carrier and/or have been dispatched from DICO’s works. The risk passes to Customer upon notification that the goods are ready for shipment.
3.9 If DICO carries out the transport of the goods itself, the transport risk passes to Customer as soon as the goods have arrived at Customer’s warehouse/point of sale.

3.10 DICO’s delivery vehicle is loaded and unloaded at Customer’s premises immediately after arrival.

3.11 If DICO provides services to Customer under a contract for work and services, acceptance of DICO’s services is confirmed by Customer in text form (e.g. by e-mail) or by Customer actually commencing to use the goods or services provided. Customer undertakes to confirm acceptance of the work if the work is free from material defects. Customer is not entitled to refuse acceptance in cases where there are only minor defects. If Customer fails to confirm acceptance notwithstanding its obligation to do so, DICO is entitled to set Customer a deadline of ten (10) working days to confirm acceptance. After fruitless expiry of the deadline, acceptance is deemed to have occurred unless Customer notifies DICO of any material defects in writing with a statement of reasons. Unless partial acceptance is unreasonable for Customer, DICO has the right to demand and Customer has the duty to declare partial acceptance of discrete parts of the performance. The provisions on acceptance apply mutatis mutandis to partial acceptance.

3.12 If Customer defaults on acceptance, the risk of accidental loss or accidental deterioration of the goods passes to Customer at that point in time. If formal acceptance is required, the risk passes to Customer after a reasonable period of time has expired following receipt of the notice of completion.

3.13 If Customer is in default with respect to call-off, acceptance, or collection of the goods or if Customer is responsible for a delay, DICO is entitled to withdraw from the contract with respect to the quantity concerned.

4. Prices; Terms of Payment; Security; Default in Payment; Offsetting

4.1 The agreed prices are net, i.e. plus VAT at the prevailing rate and minus any discounts and bonuses agreed with Customer. Except as expressly agreed otherwise, all prices are “ex works” (EXW in accordance with Incoterms® 2020) to the delivery address specified in the contract document (i.e. usually DICO’s order acknowledgement; or, in case of binding offers, DICO’s offer) or, if no delivery address is specified in the contract document, EXW Porschestrasse 8–10, 41836 Hückelhoven, Incoterms® 2020, and excluding packaging, freight, taxes, levies, deposits, and customs.

4.2 The following provisions on price adjustments apply if DICO’s goods and services are to be provided at least four months after conclusion of the contract. DICO is entitled to adjust the prices payable under the contract at its reasonable discretion based on the development of cost elements with relevance for its price calculation. The relevant dates for calculating changes in cost elements are the date of the offer on which the relevant contract is based and the date on which the relevant cost elements under the relevant contract are actually purchased. An increase in price may be considered or a price reduction may be required, for example, if the costs for the procurement of aluminium or sugar increase or decrease, as the case may be. Increases in any one cost component, such as procurement costs of aluminium, may only contribute to a price increase to the extent that they are not offset by a decrease in other areas, such as the sugar costs. In the event of a reduction of costs, e.g. sugar costs, DICO shall reduce its prices insofar as such cost reductions are not offset in whole or in part by increases in other areas. In exercising its reasonable discretion, DICO shall choose the date of a price change in such a way that cost reductions are not implemented using standards that are less favourable for Customer than those used for cost increases, i.e. cost reductions must have at least the same effect on prices as cost increases. Price changes shall be based exclusively on changes in cost elements. Increases in calculated profit as a result of a price increase are excluded. DICO shall notify Customer of a price change immediately after becoming aware of a price change that is of relevance for Customer. In the event of a price change, Customer is entitled to demand proof of the change in cost elements from DICO. DICO shall then demonstrate the cost elements to Customer by means of supplier confirmations or invoices as of the corresponding dates. In the event of a price increase of more than 10% compared to the previous total price, Customer has the right to terminate the relevant contract. Notice of termination must be given at least in text form (e.g. e-mail) and must be received by DICO no later than 5 calendar days after notification of the price change.

4.3 The invoice amount for the deliveries is due without deduction immediately upon receipt of the delivery and a verifiable invoice and payable within 14 day of the invoice date. If claims are to be collected by way of direct debit or direct debit authorisation, Customer shall ensure that sufficient funds are available in Customer’s account.

4.4 Invoices are issued and transmitted electronically.

4.5 Once the deadline stated in Section 4.3 hereof or a separately agreed deadline for payment has expired, Customer is in default without a separate reminder being required. In the event of default or extension of time Customer shall pay interest, calculated at the statutory rate, on the amount owed. DICO reserves the right to claim further damages for default.

4.6 If Customer is in default of payment or if DICO becomes aware of circumstances that are likely to significantly reduce Customer’s creditworthiness (including without limitation cessation of payments, composition, insolvency), DICO is entitled to withhold outstanding deliveries or make them dependent on advance payment or provision of security and/or to withdraw from the agreement after setting a deadline (section 321 BGB). Furthermore, DICO is entitled to demand that goods not yet paid for be immediately released to DICO at Customer’s expense.

4.7 Customer is entitled to set off claims against DICO only to the extent that Customer’s claims are undisputed or have been finally determined by a court of law. Customer’s counterclaims remain unaffected in the event of defective or damaged shipments. Customer is entitled to exercise a right of retention only insofar as Customer’s counterclaim is based on the same contractual relationship. The same applies to rebates, discount, bonuses, etc. granted to Customer by DICO.

5. Subcontractors

DICO is permitted to use subcontractors for providing services. Use of subcontractors does not release DICO from its sole obligation vis-à-vis Contractor to perform the contract. Customer has the right to object against the use of subcontractors if good cause exists for such objection attributable to the subcontractor. This does not apply where DICO uses affiliated companies within the meaning of sections 15 et seq. of the German Stock Corporation Act ((Aktiengesetz – “AktG”).

6. Principles of Liability for Defects; Best Before Date; Quick Test; Warranties of DICO

6.1 Unless otherwise provided in these GTCS, the determination of whether a defect exists in the goods/services (hereinafter collectively referred to as “goods”) must be made in accordance with the applicable legal provisions. The specifications set forth in the contract document (as a rule, DICO’s order acknowledgement or, in the case of binding offers, DICO’s offer) or in subsequently agreed product data sheets, together with the quality agreements (Beschaffenheitsvereinbarungen) contained in these GTCS, conclusively set forth the agreed qualities. A defect in the goods is not deemed to exist if malfunctions or deviations are due to materials provided or suppliers designated or designs or other instructions stipulated by Customer and if DICO did not have actual knowledge of the malfunctions or deviations.

6.2 The determined best-before date (also referred to as “BBD”) always refers only to beverage produced or canned by DICO but not to the combination of beverage and can, since beverages attack the materials of the can to varying degrees. To determine the shelf life of the canned beverage, i.e. the combination of beverage and can, the parties will carry out a so-called “quick test”. This quick text is used to determine, with binding effect on the parties, how long the beverage remains/can remain in the can without leaking or the can being damaged by the beverage.

6.3 The goods are deemed to have a defect in title only if they are not free of rights enforceable in Germany at the time of the transfer of risk. However, if the goods are not free of rights enforceable in Germany at the time of transfer of risk and if this is due to Customer’s instructions, then, notwithstanding anything to the contrary in this regulation, there is no defect in title.

6.4 Claims based on defects cannot be asserted insofar as usability for the contractually intended purpose is not precluded, or in the case of natural wear and tear, such as damage arising, after transfer of risk, from faulty or negligent handling; use of unsuitable supplies; chemical, electrochemical or electrical influences (unless attributable to DICO); unsuitable and/or improper use, excessive strain; faulty construction work; incorrect assembly by Customer or third parties (who are not DICO’s vicarious agents), unsuitable foundation soil; or due to external influences not provided for under the contract. Insofar as inexpert repairs or modifications are carried out by Customer or by third parties (who are not DICO’s vicarious agents), no claims based on defects can be made for such repairs or modifications and for any consequences resulting therefrom.

6.5 Customer’s claims for damages and/or compensation for wasted expenditures are subject to the provisions in Section 7 of these GTCS and in all other respects are excluded.

6.6 Any warranty or representation, whether in terms of DICO’s enhanced responsibility or resulting from DICO’s acceptance of a specific obligation to assume liability, is deemed to have been made only if the terms “warranty” or “representation” are expressly used.

6.7 Customer shall inspect delivered goods for defects without undue delay and shall notify DICO in writing of any apparent defects within a period of seven (7) working days from delivery and/or acceptance and of any hidden defects within seven (7) working days from becoming aware of such defect; otherwise, warranty claims for defects not reported at all or not reported properly will be excluded (sections 377, 381 of the German Commercial Code, ”HGB”). In such a case, the goods are deemed to have been approved.

6.8 In the event of a defect, DICO is entitled to provide subsequent performance which, at DICO’s option, may be carried out either by rectifying the defect or by supplying a new item that is free from defects. If subsequent performance is impossible or disproportionate, DICO is entitled to refuse such subsequent performance. In such a case, a reasonable reduction in price is to be agreed; or, in case of a material defect and/or breach of duty, Customer is entitled to withdraw from the contract in accordance with the legal provisions. DICO is entitled to make the owed subsequent performance conditional on Customer’s payment of the compensation due to DICO. However, Customer is entitled to withhold a reasonable portion of the compensation in an amount that is proportionate to the defect.

6.9 DICO is entitled to recover from Customer any costs incurred by DICO as a result of an unjustified request to remedy a defect (including without limitation costs of examination and/or transportation), unless the lack of defectiveness was not recognisable to Customer.

6.10 In the event of defects in components provided by third-party vendors which defects DICO cannot remedy for licence reasons or practical reasons, DICO shall, at its option, assert its warranty claims against the relevant vendors and/or suppliers for the benefit of Customer or shall assign such warranty claims to Customer. Subject to the other requirements being satisfied and subject to the provisions of these GTCS, in case of such defects no warranty claims against DICO shall arise until the judicial enforcement of such claims (at a court of first instance) against the vendor and supplier has failed or has no prospect of success, e.g. by reason of insolvency. DICO shall reimburse any litigation expenses incurred by Customer which cannot be recovered from third parties if a defect does in fact exist. While the legal dispute is ongoing, the limitation period for the relevant warranty claims of Customer against DICO is suspended.

6.11 Customer’s claims based on defects become time-barred one year from the statutory start of the limitation period. This is without prejudice to the interruption provisions of sections 327u and 445b(2) BGB (Recourse in the Supply Chain). The above-mentioned period does not apply to claims in acc. with section 438(1) no. 1 BGB (rights in rem); if the goods are an item that is used for a building in accordance with its typical mode of use and causes the defectiveness of the building (building material), cf. section 438(1) no. 2 BGB; claims of Customer under the Product Liability Act; claims of Customer based on intentional and/or grossly negligent breach of contract by DICO; claims for injury to life, limb or health; if DICO has fraudulently concealed a defect; if DICO has assumed a procurement risk or a warranty for the quality of the goods; claims in accordance with section 478 BGB.

6.12 Limitation periods do not recommence for the same defect occurring after subsequent performance.

7. Further Liability

7.1 Unless otherwise provided in the following paragraphs, DICO is liable for damages and expenses, in addition to the other provisions of these GTCS, in accordance with the statutory provisions. However, the following paragraphs do not apply in the following cases in which the statutory provisions remain unaffected: (a) in the case of entrepreneurial recourse in accordance with section 478 BGB, provided that DICO has entered into a contract with Customer for the sale of a newly manufactured movable item and the last contract in the supply chain is a consumer goods purchase contract for the same item (section 474); (b) in the case of claims for reimbursement of expenses incurred for the purpose of subsequent performance in accordance with section 439(2), (3), or (6) sentence 2 BGB, if DICO has entered into a contract with Customer for a newly manufactured item; (c) in the event of recourse of the seller in accordance with section 445a BGB; (d) in the event of recourse of the trader relating to digital products in accordance with section 327u BGB.

7.2 In accordance with legal provisions on fault-based liability, DICO is liable for damages and expenses incurred by Customer – on whatever legal grounds – in the event of intent and gross negligence as well as in the event of negligence (a) for damage and expenses resulting from injury to life, limb or health, (b) for damage and expenses resulting from a not insignificant breach of a material contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and upon the fulfilment of which the other party has regularly relied and may rely); in such case, however, DICO’s liability is limited to the foreseeable, typical damage. Furthermore, indirect damage and consequential damage is only subject to compensation to the extent that such damage is typically to be expected if the goods and/or services are used as intended, in particular if it is the result of defects in the goods and/or services.

7.3 Unless otherwise agreed, claims for loss of profits are excluded.

7.4 If DICO is in default of delivery in accordance with the statutory provisions and the provisions of these GTCS, DICO shall be liable for damages and expenses incurred by Customer for each full week of default up to a maximum of 0.5% of the agreed net price of the goods not delivered or delivered late, however not exceeding a total of 5% of the agreed net price of the goods not delivered or delivered late.

7.5 Any liability for damages beyond the scope of liability provided for herein above is excluded regardless of the legal nature of the claim asserted. This applies, without limitation, with regard to damage claims arising from a violation of a pre-contractual obligation (culpa in contrahendo) or from other breach of duty or with regard to tortious claims for property damage pursuant to section 823 BGB. The same applies if, instead of a claim for damages, Customer demands reimbursement of expenditure incurred in vain.

7.6 The above limitations of liability do not apply to the extent that DICO has fraudulently concealed a defect, in the event of intent and gross negligence, for damage and expenses resulting from injury to life, limb or health, and if DICO has assumed a procurement risk or a warranty for the quality of the goods as well as for claims under the Product Liability Act.

7.7 If statutory provisions stipulate a lesser degree of liability for DICO, such statutory provisions take precedence over the provisions of these GTCS.

7.8 Where DICO’s liability for damages is excluded or limited, such exclusion or limitation applies also to the personal liability for damages of persons for whose fault DICO is responsible under statutory provisions (including without limitation DICO’s employees, representatives and vicarious agents).

8. Pallets

Euro pallets are the property of DICO. When picking up goods, Customer can either exchange such pallets for undamaged pallets owned by Customer or purchase them for the agreed fee.

9. Force Majeure

9.1 In the event of force majeure or other events beyond the control of the respective party, such as natural disasters, disruptions in the supply of energy and raw materials, lawful or unlawful acts of public authorities, strikes, riots, armed or terrorist conflicts, epidemics or pandemics that have unforeseeable consequences for the provision of services, the affected party will be released from its performance obligations for the duration of the disruption and to the extent that party is affected. This does not lead to automatic termination of the contract. The parties shall notify each other immediately, at least in text form, of such an event and its termination and shall adjust their obligations to the changed circumstances in good faith.

9.2 The affected party shall use its best efforts to remedy or limit the effects of the event to the greatest extent possible. As long as one party is unable to perform its contractual obligations, the other party is released from its obligation to provide its own consideration.

9.3 If one party is not or no longer able to perform its contractual obligations properly as a result of such events and if the force majeure event is not merely temporary in nature, the other party is entitled to terminate the contract. The parties agree that an obstacle to performance within the meaning defined above is not merely temporary in nature if it lasts longer than 3 months.

9.4 For the avoidance of doubt, the parties agree that any cyberattack and cyberattacks on the virtual machines also constitute a force majeure event unless the affected party has failed to comply with state-of-the-art security standards or the vulnerability exploited was already generally known and was not remedied despite the possibility of doing (e.g. by installing an available update).

9.5 The parties agree that a force majeure event within the meaning of this section also exists if a supplier or subcontractor engaged by the affected party is affected by a force majeure event.

10. Take-or-Pay Obligation

10.1 Customer shall call off 100% of the production capacities agreed with DICO (“Take-or-Pay Obligation”), the determining factor in each case being the total of all contract fillings guaranteed by DICO within the contractually agreed period (see also Section 3.4 herein above).

10.2 Customer shall pay an amount equal to 50% of the agreed compensation for each contract filling operation for agreed production capacities that Customer falls short of the Take-or-Pay Obligation. (Regulation of the obligation to pay consideration).

10.3 The limitation of the Take-or-Pay amount to 50% of the agreed compensation for each contract filling operation does not apply if DICO can demonstrate that the reason for the shortfall lies in engaging a third party to carry out contract filling services. In that case, the full compensation will be due.

10.4 The Take-or-Pay compensation plus any value added tax is subject to the terms of payment set forth in these GTCS. The parties understand that no value added tax is payable on the Take-or-Pay compensation. If, contrary to the parties’ expectations, payments are in fact subject to VAT, DICO will provide Customer with invoices corrected for VAT that meet the legal requirements and allow Customer to deduct input VAT. Customer shall settle the VAT amount immediately upon receipt of the invoices corrected for VAT.

10.5 Further compensation claims and rights of DICO are excluded with regard to the compensation owed.

10.6 If it becomes foreseeable to Customer that it will require less than the notified number of contract fillings, Customer shall inform DICO thereof and DICO shall use its best efforts to sell the capacities not required by Customer elsewhere. DICO is not under an obligation to achieve a certain result.

10.7 Customer’s Take-or-Pay Obligations are reduced to the extent that DICO sells the capacities not required by Customer elsewhere. In addition, Customer is entitled to prove that DICO has incurred further chargeable benefits as a result of the non-call-off which are to be taken into account.

10.8 The foregoing is without prejudice to DICO’s statutory obligation to mitigate damage (section 254 of the German Civil Code).

11. Customer-specific Materials; Customer’s Supplies; Storage

11.1 DICO shall store Customer-specific materials and materials to be supplied by Customer pursuant to Section 2.5 (“Customer’s Supplies”) herein above in accordance with the following provisions. The parties shall agree on the maximum storage capacity. DICO shall notify Customer in a timely manner before the maximum storage capacity is reached.

11.2 Customer’s Supplies are only given to DICO on loan for the purpose of the contract filling service and remain the Customer’s property. Customer shall provide Customer’s Supplies to DICO free of charge and shall deliver Customer’s Supplies DDP (Incoterms® 2020) to DICO’s place of business.

11.3 However, DICO shall procure Customer-specific materials in its own name and for its own account. Unless otherwise agreed, the costs for procurement of Customer-specific materials are deemed satisfied by payment of the amount due for the contract filling or the Take-or-Pay fee.

11.4 DICO is entitled to use Customer’s Supplies exclusively for contract filling carried out on behalf of Customer. More specifically, Customer’s Supplies must not be sold, rented, transferred by way of security, pledged or otherwise passed on to third parties or used for deliveries to third parties without Customer’s express consent.

11.5 The parties acknowledge and agree that Customer’s Supplies cannot be “converted” into the product on a 1:1 basis by means of production. Therefore, the parties agree that Customer shall accept, without objection, any customary tolerance in respect of a potential production loss for each lot of Customer’s Supplies. DICO shall use its best endeavours to minimise the production loss as far as possible.

11.6 Customer shall accept back from DICO any materials and Customer’s Supplies that have not been used up. In such a case, DICO shall send Customer a request for acceptance stating the quantities of non-used-up materials and Customer’s Supplies. DICO shall make the non-used-up materials and Customer’s Supplies ready for collecting ex works/EXW (Incoterms® 2020) at DICO’s place of business and Customer shall collect such materials and Customer’s Supplies within two weeks of the request. After expiry of the deadline, Customer will be charged for storage in accordance with the following provisions.

11.7 DICO shall provide Euro pallet spaces (EP spaces) as storage space for the storage of the agreed Customer’s Supplies, of the materials procured by DICO and of the filled goods. The parties shall enter into a separate agreement regarding the size of the storage area for Customer’s Supplies. The amount due for the storage area for Customer’s Supplies and for materials procured by DICO is deemed satisfied by payment for the contract filling services for up to 14 calendar days after a request to collect Customer’s Supplies/materials not used up upon termination of the contract and with regard to the filled goods for a period of 14 calendar days after the respective production and notification of readiness for collection.

11.8 If continued storage at DICO’s is used beyond the agreed storage area or storage period, Customer will be charged by DICO for such storage. The amount due is €4.00 net for each additional EP space per week or commenced week.

11.9 DICO shall keep a record of the inventory levels of Customer’s Supplies, materials and goods and shall inform Customer thereof.

12. Confidentiality; Liquidated Damages

12.1 Subject to the following provisions, all information, facts, documents, data and/or knowledge, including without limitation technical and/or commercial information, design documents, specifications, drawings, samples, prototypes, test results, recipes and data of customers of the disclosing party and/or confidential know-how and trade secrets of the disclosing party, i.e. identifiable knowledge that is accessible to a limited group of people only, e.g. in the form of not publicly known information about manufacturing processes or audit results, as well as all information, facts, documents, data, knowledge, know-how and/or trade secrets from and/or about business partners of the disclosing party (e.g. customers, clients, suppliers, service providers, cooperation partners, trading partners, research and development partners) that the receiving party receives from the disclosing party in the course of their cooperation, whether in writing, in text form, electronically, orally, visually, or in any other form, is confidential. Confidential information also includes all and any copies made thereof as well as self-produced materials and summaries.

12.2 Confidential information may be used by the receiving party solely for the purpose of implementing the obligations arising from the cooperation.

12.3 The parties undertake to protect all disclosed confidential information from access by third parties and to store such information using at least the same degree of care with which they treat their own confidential information but no than the care that is customary in such cases. Confidential information must not be disclosed to third parties unless expressly permitted under these GTCS or a separate agreement. Confidential information may be disclosed to third parties only with the prior written consent of the disclosing party. If disclosure to such third parties is necessary, consent may not be unreasonably withheld.

12.4 Disclosure is permitted without the written consent of the disclosing party if the receiving party is required to disclose the information in response to an administrative or judicial order or mandatory legal requirements, provided that the receiving party informs the disclosing party, to the extent practicable and lawful, without undue delay and prior to such disclosure in order to give the disclosing party an opportunity to exercise its rights and/or take action to challenge the validity of such request or requirement, and the receiving party uses reasonable efforts to ensure that the confidential information is treated confidentially.

12.5 The parties agree that affiliated companies of DICO as defined in sections 15 et seq. of the German Stock Corporation Act (Aktiengesetz – “AktG”) and their affiliated companies in accordance with sections 15 et seq. AktG are not considered third parties in accordance with Section 11.4 herein above.

12.6 Any disclosure of confidential information of an affiliated company to the other party hereof is deemed to be a disclosure by that affiliated company to the receiving party.

12.7 Prior to the disclosure of confidential information by the receiving party to a third party, such third party must be bound to secrecy to the same extent as the parties hereto are bound by this agreement. When disclosing confidential information to its employees, the receiving party shall ensure that the confidential information received is made available only to those of its employees whose involvement is necessary to fulfil the obligations arising from the contractual relationship. The aforementioned employees must also be bound to confidentiality to the extent permitted by labour law, unless a general obligation of confidentiality has already been imposed as part of the employment relationship.

12.8 The obligation of confidentiality does not extend to information that:

• was already in the public domain at the time of its disclosure or fell into the public domain after its disclosure without breach of this contract;
• was already known to the receiving party at the time of its disclosure;
• was lawfully made available to the receiving party by a third party after its disclosure without restriction as to confidentiality or use; or
• has been developed by the receiving party independently and without reliance, directly or indirectly, on confidential information or in accordance with the exceptions set forth in this Section.

12.9 The receiving party shall, at the request of the disclosing party in writing (at least in text form), return or destroy all confidential information received to which no rights have been transferred under this agreement. However, the receiving party is entitled to retain confidential information or copies thereof, if:

• the law applicable to the receiving party mandatorily requires retention to comply with legal obligations; or
• backup copies of electronically exchanged confidential information are routinely created.

However, except where longer periods are required by law, confidential information may be retained for a maximum of ten (10) years from the termination of this agreement. The above right of retention does not give rise to any right of disclosure or transfer.

12.10 Any breach of the confidentiality obligation by the affiliated companies and/or employees and/or by a third party to whom the receiving party has disclosed confidential information will be deemed a breach of this agreement by the respective party.

12.11 For each instance of breach of this confidentiality obligation, Customer shall pay to DICO liquidated damages the amount of which will be determined by DICO at its reasonable discretion and, in the event of a dispute, reviewed by Mönchengladbach Local Court. The defence of continuation of the offence is excluded for intentional breaches of duty. In the event of ongoing breaches, each commenced week of infringement is deemed a separate breach. DICO is entitled to claim liquidated damages at any time, i.e. regardless of any preclusion period. DICO reserves the right to assert further claims. More specifically, DICO is entitled to assert further claims for damages in accordance with the applicable legal provisions. The liquidated damages are then offset against the total damage incurred.