GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
of Smartscale NewCo Europe GmbH,
Im Höning 5, 63820 Elsenfeld, Germany

I. SCOPE OF APPLICATION

These GTC apply in their respective version to all contracts concluded between the buyer and us for the delivery of goods. They shall also apply to all future business relations, even if they are not expressly agreed again. Deviating, conflicting or supplementary terms and conditions of the buyer shall only become part of the contract if we accept them in writing. The following terms and conditions of sale shall also apply if we execute the buyer's order without reservation in the knowledge of conflicting or deviating terms and conditions of the buyer.

II. OFFER AND CONCLUSION OF CONTRACT

1. Our offers are subject to change and non-binding, unless we have expressly designated them as binding.
2. An order placed by the buyer shall be deemed a binding offer to conclude a purchase contract. We can accept this offer within two weeks by sending an order confirmation or by sending the ordered products within the same period.
3. The contract concluded with us conclusively reflects all agreements between us and the buyer. All product descriptions, documents or technical specifications shall only constitute quality features if they are expressly designated as such in the contract. Irrespective of this, customary deviations and changes due to legal regulations are permissible and in particular do not constitute a change or addition to the contract if the usability for the contractually intended purpose is not impaired.

III. TERMS OF PAYMENT

1. Our prices are ex works without packaging and without other costs, unless otherwise specified in the dealer agreement or the order confirmation, plus statutory value added tax. This will be shown separately on the invoice.
2. Our invoices are due for payment without deduction immediately upon receipt, unless special conditions have been agreed with the buyer. In the case of new customers, we reserve the right to ship against advance payment. In addition, in justified cases we will check the creditworthiness of the buyer at, e.g. by obtaining a Schufa report or other assessment. A payment is only deemed to have been made when we can dispose of the amount. In the case of payments by check, payment shall only be deemed to have been made when the check has been cashed.
3. The buyer is only entitled to offset or exercise a right of retention if the counterclaims have been legally established, recognized by us or are undisputed.
4. We may demand advance payments or the provision of security if, after conclusion of the contract, facts become known which call into question the reliability of the buyer, in particular his ability to pay. We are entitled to withdraw from the contract if the buyer has made false statements about his creditworthiness or if the creditworthiness is not given according to objective information. Claims for compensation by the buyer arising from this coaster braking are excluded.
   
5. If, as agreed, the performance takes place more than four months after conclusion of the contract and our sales prices have changed in the meantime due to external circumstances, we may demand the adjusted list price without the buyer being entitled to withdraw from the contract. External circumstances are price changes for raw materials, supplier products, energy and transportation costs, supply bottlenecks, legal requirements and other comparable circumstances.
   

IV. DELIVERY AND PERFORMANCE TIME

1. Delivery dates or deadlines are generally non-binding, unless they have been agreed as binding or the binding nature of the delivery results from the circumstances. The delivery dates and deadlines specified by us shall in any case be postponed if clarification is required with the Buyer or if the Buyer fails to fulfill its obligations properly and on time.
2. If the underlying purchase contract is a fixed-date transaction within the meaning of § 286 para. 2 no. 1 BGB or § 376 HGB, we shall be liable in accordance with the statutory provisions in the event of a delay in delivery for which we are responsible. If there is no fixed-date transaction, the buyer may request us to deliver within a period of at least four weeks after a non-binding delivery date or such a period has been exceeded. After expiry of this period, we shall be in default if we are responsible for the delay in delivery. Our liability shall be limited in each case to the foreseeable, typically occurring damage, unless the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible. Section VII. 3 shall apply accordingly.
3. Any further liability for a delay in delivery for which we are responsible is excluded.
4. We are entitled to make partial deliveries and render partial services insofar as this is reasonable for the customer.
   
5. If the buyer is in default of acceptance, we shall be entitled to demand compensation for the resulting damage and any additional expenses. The same shall apply if the Buyer culpably breaches its obligations to cooperate. The risk of accidental deterioration and accidental loss shall pass to the Buyer upon the occurrence of default of acceptance or debtor's delay.
   

V. GEFAHRÜBERGANG - VERSAND/VERPACKUNG

1. Loading and shipment shall take place uninsured at the risk of the buyer. We shall endeavor to take into account the wishes and interests of the buyer with regard to the type and route of shipment; any additional costs incurred as a result - even if carriage paid delivery has been agreed - shall be borne by the buyer. The risk of deterioration or accidental loss shall pass upon handover, in the case of sale by delivery to a place other than the place of performance, upon handover to the forwarding agent or other person commissioned with the shipment. This shall also apply if we have assumed the costs of shipment or carry out the shipment with our own vehicles.
2. The buyer is responsible for the disposal of the packaging.
3. If dispatch is delayed at the request or through the culpable action of the buyer, we shall store the goods at the expense and risk of the buyer. In this case, notification of readiness for shipment shall be deemed equivalent to shipment.
4. At the request and expense of the buyer, we will insure the delivery with transport insurance.

VI. WARRANTY

1. Claims for defects of the buyer shall only exist if the buyer has properly fulfilled his obligations to inspect and give notice of defects, including transport damage, in accordance with § 377 HGB (German Commercial Code).
2. We warrant that our delivery has the agreed quality (e.g. type, quantity, specifications, quality, functionality, compatibility, interoperability or other features agreed in the order process) at the time of transfer of risk and is suitable for the use assumed under the contract.
3. If there is a defect in the goods for which we are responsible, we shall, at our discretion, either remedy the defect (rectification) or deliver new goods (subsequent delivery) to within a reasonable period of time. In the event of rectification of the defect, we shall bear the necessary expenses insofar as these are not increased because the subject matter of the contract is located at a place other than the place of performance. If the subsequent performance fails despite two attempts, the buyer may either reduce the purchase price or withdraw from the contract if the defect is not insignificant. In the event of defects in software components, subsequent performance shall be limited to the provision of a new software version. The Buyer's right to assert claims for damages shall be governed by the provisions in Section VII. Normal wear and tear shall not justify any warranty claims. Furthermore, the warranty is excluded if the buyer does not carry out the software updates provided by us and the defect is based on this.
4. Buyer's warranty claims shall become time-barred one year after delivery of the goods to the Buyer, unless we have fraudulently concealed the defect. Our obligations under Section VI, Clause 5 and Section VI, Clause 6 remain unaffected by this.
5. Even without the otherwise required setting of a deadline, we shall be obliged to reimburse the Buyer for the expenses which the Buyer had to bear vis-à-vis his customers due to the defect of the new movable item sold in accordance with §§ 439 para. 2 or 3, 475 para. 4 and 6. In the event of a sale of consumer goods, we shall, at our discretion, continue to provide compensation by taking back the goods or reducing the purchase price if the goods are defective. The above claims are excluded if the buyer has not properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
   
6. The obligation in accordance with Section VI No. 4 is excluded if the defect is due to advertising statements or other contractual agreements that do not originate from us, or if the buyer has given a special warranty to the end consumer. The obligation is also excluded if the buyer himself was not obliged to exercise the warranty rights vis-à-vis the end consumer on the basis of the statutory regulations or did not make this complaint vis-à-vis a claim made against him. This shall also apply if the buyer has assumed warranties vis-à-vis the end consumer that go beyond the statutory scope.
   

VII. DAMAGES, EXCLUSION OF LIABILITY, FORCE MAJEURE

1. We shall be liable without limitation in accordance with the statutory provisions for intent and gross negligence, and for damage to life, body and health as well as for damage covered by liability under the Product Liability Act.
2. In the event of slight negligence, we shall be liable for the foreseeable, typically occurring damage in the event of a breach of a material contractual obligation (a material contractual obligation is an obligation that is necessary for the fulfillment of the contract and on the fulfillment of which each party may therefore rely). This limitation of liability shall not apply in the event of a breach of a warranty or warranted quality or in the event of fraudulent misrepresentation.
3. To the extent that we have given a guarantee of quality and/or durability with regard to the goods or parts thereof, we shall also be liable under this warranty. However, we shall only be liable for damage that is based on the lack of the guaranteed quality or durability but does not occur directly to the goods if the risk of such damage is clearly covered by the quality and durability warranty. Our liability, for whatever reason, due to a lack of compatibility of our delivery with other components used by the buyer is excluded, unless we have contractually agreed compatibility with these components.
4. To the extent that our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
5. Claims for damages by the buyer due to a defect shall become time-barred two years after delivery of the goods. This shall not apply in the event of injury to life, limb or health caused by us, our legal representatives or our vicarious agents, or if we, our legal representatives or our vicarious agents have acted with intent or gross negligence.
   
6. In the event of force majeure, i.e. events beyond the control of a party (e.g. war, riots, (terrorist) attacks, epidemics, natural disasters or strikes), which prevent a party from providing the service, each party shall be released from the obligation to perform for the duration of the force majeure. The term of the contract shall be extended by the duration of the interruption caused by the force majeure. If the force majeure is expected to last longer than three months, either party may terminate the contract.
   

VIII. RESERVATION OF TITLE

1. The delivered goods (reserved goods) shall remain our property until all claims, including all current account balance claims, to which we are entitled against the Buyer now or in the future, have been settled. In the event of breach of contract by the Buyer, e.g. default of payment, we shall have the right to take back the goods subject to retention of title after setting a reasonable deadline. The taking back or seizure of the goods subject to retention of title constitutes coaster braking of the contract. We are entitled to utilize the reserved goods after taking them back. After deduction of a reasonable amount for the costs of realization, the proceeds of realization shall be set off against the amounts owed to us by the buyer.
2. The buyer must treat the reserved goods with care and insure them adequately at his own expense against fire, water damage and theft at replacement value. Any maintenance and inspection work that becomes necessary must be carried out by the buyer in good time at his own expense.
3. The buyer is entitled to sell and/or use the reserved goods in the ordinary course of business as long as he is not in default of payment. Pledges or transfers by way of security are not permitted. The purchaser hereby assigns to us in full by way of security any claims arising from the resale or any other legal grounds (insurance, tort) in respect of the reserved goods (including all current account balance claims); we hereby accept the assignment. We revocably authorize the buyer to collect the claims assigned to us for his account in his own name. The direct debit authorization can be revoked at any time if the buyer does not properly meet his payment obligations. The buyer is also not authorized to assign this claim for the purpose of debt collection by way of factoring, unless the obligation of the factor is simultaneously established to effect the consideration in the amount of the claims directly to us as long as we still have claims against the buyer.
4. Any processing or transformation of the goods subject to retention of title by the buyer shall in any case be carried out on our behalf. If the reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. The same shall apply to the new item created by processing as to the reserved goods. In the event of inseparable mixing of the reserved goods with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the buyer's item is to be regarded as the main item as a result of the mixing, the buyer and we agree that the buyer shall transfer co-ownership of this item to us on a pro rata basis; we hereby accept the transfer. Our sole or co-ownership of an item created in this way shall be kept safe for us by the Buyer.
5. In the event of access by third parties to the reserved goods, in particular seizures, the buyer shall draw attention to our ownership and inform us immediately so that we can enforce our ownership rights. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for these.
   
6. We are obliged to release the securities to which we are entitled insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%, whereby we are responsible for selecting the securities to be released.
   

IX. INDUSTRIAL PROPERTY RIGHTS

1. Our products, signs, symbols, images, sketches or other documents are protected by trademark and copyright. Any use requires our prior consent. Removal of our trademarks and copyright notices from our products or other documents constitutes a serious breach of contract which entitles us to terminate all existing agreements between us (including dealer and payment agreements) without notice.
2. If a delivery contains software components, the buyer shall receive a simple right of use limited to the purpose of the contract.
3. The buyer is not permitted to reconstruct software components (prohibition of reverse engineering). Any processing, translation, decompilation or other act of reproduction or distribution, including licensing or resale of the software components, is not permitted and constitutes a material breach of contract.

X. DATA PROTECTION, CONFIDENTIALITY

1. We undertake to treat personal data confidentially in accordance with the applicable data protection legislation. However, we are entitled to collect and process personal data of the buyer in compliance with data protection legislation and to pass it on to companies within the group in Germany and abroad. The forwarding of personal data to third parties at home and abroad is permitted in compliance with the data protection regulations for delivery-related data processing.
2. The Buyer undertakes to protect confidential information. "Confidential information" is all economic, business, financial, technical, legal, tax, business activity, employee or management-related or other information (including data, records, documents, samples, knowledge and all trade secrets within the meaning of § 2 of the German Trade Secrets Act) which relate to our company, our field of activity or a company affiliated with us and its field of activity and which are made accessible to the Buyer directly or indirectly by us or a company affiliated with us or which come to the knowledge of the Buyer in any other way. Confidential information also includes oral information, copies, reproductions and summaries of any kind. It is also irrelevant whether documents or other carrier media were created by us, our affiliated companies or by other third parties or whether they were expressly designated as "confidential". This Confidential Information may under no circumstances be disclosed to third parties and may only be disclosed within the Buyer's company on a "need to know" basis and only if the recipients have also been obliged to maintain confidentiality.
3. The confidentiality obligations pursuant to the above Section X. 2. shall not apply if (i) we have given our prior written consent to the Buyer for the specific individual case of disclosure of the Confidential Information; (ii) the Confidential Information was demonstrably already known to the Buyer prior to its disclosure without breach of the obligations set out herein; (iii) the Buyer has obtained the Confidential Information from a third party demonstrably authorized to do so or subsequently obtains it from a third party without breach of this Agreement; (iv) the Buyer is obliged to disclose the Confidential Information by order of a court, by order of an authority or by law. In this case, the Buyer shall notify us in writing sufficiently in advance of the disclosure so that action can be taken against the disclosure.
4. The Buyer shall inform us immediately if it becomes aware that Confidential Information has been disclosed to unauthorized third parties. The Buyer shall use its best efforts to ensure that such unauthorized third parties completely destroy the Confidential Information.
   
5. The disclosure of Confidential Information does not constitute a grant of rights. All rights remain with us. We assume no liability for the usability of the Confidential Information for the interests of the Buyer or for its completeness, accuracy and timeliness.
   
6. Upon request, but at the latest upon termination of the contractual relationship, all Confidential Information shall be returned to us or destroyed at our discretion; proof of destruction shall be provided to us upon request.
   

XI. PRODUCT LIABILITY, RELEASE

1. The buyer shall indemnify us against all product liability claims insofar as he is responsible for the defect giving rise to the liability. In particular, the buyer shall check the functionality of our delivery in interaction with other components before finished products (e-bikes) are placed on the market.
2. The buyer is obliged to forward feedback, complaints or claims to us immediately (but no later than within five (5) working days) if these relate to a production or design defect or give rise to safety concerns.
3. The buyer is obliged to notify us immediately of any possible production or design defects or safety risks identified during inspections.
   
4. The Buyer shall in any case inform us about regulatory procedures and measures taken, including changes in product safety and liability regulations.
   
5. The Buyer is obliged to cooperate fully with us in the event of necessary measures in the area of product safety (e.g. recall) and to participate in corresponding measures.
   

XII. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW, OTHER

1. German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the provisions of international private law. The place of performance and jurisdiction for all disputes arising between us and the Buyer from the contracts concluded between us and the Buyer is Frankfurt. However, we are also entitled to sue the Buyer at his place of residence and/or business.
2. Should one or more of these provisions be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected.