General Terms and Conditions of Purchase

1 Scope, form

(1) These General Terms and Conditions of Purchase (GCP) apply to all business relationships with our business partners and suppliers (“Seller”). The GCP shall only apply if the Seller is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.

(2) The GCP shall apply, in particular, to contracts relating to the sale and/or supply of movable objects (“goods”), regardless of whether the Seller manufactures the goods itself or purchases them from other suppliers (Sections 433 and 651 of the BGB). Unless otherwise agreed, the GCP shall apply as a framework agreement in the version valid at the time of order by the Purchaser or, in any case, in the written form most recently provided to it, including for similar future contracts, without any requirement on our part to refer to these conditions again in individual instances.

(3) These GCP shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Seller shall only become a component of the contract if and insofar as we have expressly consented to their validity in writing. This requirement of consent applies in every case, for example, even where we accept deliveries from the Seller without reservation in knowledge of the Seller‘s General Terms and Conditions.

(4) Individual agreements made with the Seller in individual instances (including collateral agreements, supplements or amendments) shall always take precedence over these GCP. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.

(5) Legally relevant declarations and notifications, which the Seller is obliged to provide to us after conclusion of the contract (e.g. setting deadlines, reminders, declarations of rescission), require the written form to be effective. Legal formal requirements and further evidence, in particular in cases of doubt as to the legitimacy of the declarant, remain unaffected. Insofar as written form is specified in the GCP below, the text form is sufficient in each case.

(6)  References to the applicability of statutory provisions serve the purpose of clarification only. The statutory provisions shall apply even in the absence of such clarification, insofar as these are not directly modified or expressly excluded by these GCP.

2 Conclusion of contract

(1) Our orders shall be considered binding at the earliest upon submission in writing or confirmation. The Seller is obliged to notify us of obvious errors (e.g. typographical or calculation errors) and incompleteness of the order, including the order documentation, for the purposes of correction/completion before acceptance; the contract shall otherwise not be regarded as concluded.

(2) The Seller shall be obligated to confirm our order in writing within a period of 3 working days or, in particular, to dispatch the goods without reservation (acceptance).
Delayed acceptance shall be regarded as a new offer and shall require our acceptance.

(3) The purchase order is subject to compliance with Regulation (EC) No. 1907/2006 of the European Parliament and the Council of 18 December 2006 concerning the registration, evaluation, authorisation and restriction of chemicals as well as compliance with regulation of Directive 2011/65/EU of the European Parliament and the Council of 8 June 2011 on the restriction of use of certain hazardous substances in electrical and electronic equipment and the Ordinance of 19 April 2013 on the restriction of use of hazardous substances in electrical and electronic equipment as well as the non-use of conflict materials pursuant to the Dodd-Frank Act. The Seller confirms compliance with the above regulations. The Seller shall indemnify the ordering party against all liabilities, expenses and damages that have been caused by the Seller due to a breach of the above-mentioned regulations for which the Seller is responsible.

3 Delivery time and delay in delivery

(1) The delivery time that we indicate in the purchase order is binding. If the delivery time is not indicated in the purchase order and also not otherwise agreed, then it shall be two weeks from the conclusion of the contract. The Seller shall be obligated to inform us immediately in written form if it – for whatever reason – anticipates being unable to meet the agreed delivery times.

(2) If the Seller fails to perform its services, or fails to do so within the agreed delivery period, our rights – particularly our rights to rescission and damages – shall be governed by statutory provisions. The provisions in paragraph 3 shall remain unaffected.

(3) If the Seller is in default, we can – in addition to further statutory claims – demand lump-sum compensation for our damage caused by default amounting to 1% of the net price per completed calendar week, yet not more than a total of 5% of the net price of the goods delivered late. We reserve the right to prove that more extensive damage has occurred. The Seller reserves the right to prove that no damage at all or only considerably less damage resulted.

 

4 Performance, delivery, transfer of risk, default of acceptance

(1) Without our prior written agreement, the Seller is not entitled to have third parties (e.g. subcontractors) carry out the performance for which it is responsible. The Seller shall bear the procurement risk for its services, unless otherwise agreed in individual cases (e.g. limitation to stock).

(2) The delivery is carriage paid in Germany to the location indicated in purchase order. If the place of destination is not indicated and nothing else has been agreed, then the delivery is to be made to our place of business in Wiesbaden. The respective place of destination is also the place of performance for the delivery and possible subsequent performance (obligation to fulfil).

(3) The delivery must be accompanied by a delivery note stating the date (issue and dispatch), contents of the delivery (article number and quantity) as well as our order identification (date and number). If the delivery note is missing or incomplete, then we are not responsible for any resulting delays in processing and payment. A corresponding dispatch notification is to be sent separately from the delivery note and to contain the same content.

(4) The risk of accidental loss and deterioration of the items shall be transferred to us upon delivery at the place of performance. If an acceptance has been agreed, then this shall be decisive for the transfer of risk. The statutory provisions of the law governing contracts for work and services shall also apply mutatis mutandis to acceptance. If we are in default of acceptance, then this shall be deemed to be equivalent to handover or acceptance.

(5) We shall be in default of acceptance in accordance with statutory regulations. However, the Seller must also expressly offer its services to us is a specific or determinable calendar period has been agreed for an action or involvement on our part (e.g. provision of material). If we are in default of acceptance, then the Seller may demand reimbursement of its additional expenses (Section 304 of the BGB). If the contract involves a specific object (one-off production), then the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for failure to cooperate.

5 Prices and conditions of payment

(1) The price indicated in the purchase order is binding. The indicated prices are net prices and do not include statutory value-added tax.

(2) Unless otherwise agreed in specific instances, the price includes all services and ancillary services provided by the Seller (e.g. Assembly and installation) and all ancillary costs (e.g. appropriate packaging, transport costs, including any transport and liability insurance).

(3) The agreed price is due within 30 calendar days from completion of delivery and services (including any agreed acceptance) as well as receipt of a proper invoice. If we make payment within 14 calendar days, then the Seller shall grant us a 3% discount on the net invoice amount. For bank transfers, timely payment is made if our transfer instruction is received by our bank prior to expiry of the payment period; we are not responsible for delays in the payment process of the banks involved.

(4) We shall not owe any interest payable after due date. The statutory provisions shall apply to late payments.

(5) We shall be entitled to set-off and retention rights as well as the right to plead non-performance of the contract to the extent permitted by law. We are, in particular, entitled to withhold due payments as long as we are still entitled to make claims against the Seller arising from incomplete or defective services.

(6)  The Seller shall be entitled to set-off and retention rights only as a result of counterclaims that have been legally established or are undisputed.

6 Non-disclosure and retention of title

(1) We retain proprietary rights and copyright to images, plans, drawings, calculations, design instructions, product descriptions and other documentation. Such documentation is to be used solely for the contractual services and must be returned to us after completion of the contract. Documentation must not be disclosed to third parties, even after termination of the contract. The non-disclosure obligation ceases to apply only if and to the extent that the knowledge contained in the documentation provided is generally known.

(2) The above provision applies accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as tools, templates, specimens and other objects that we provide to the Seller for the manufacturing process. Such objects – insofar as they are not processed – must be kept at the expense of the Seller and be insured against destruction and loss to a reasonable extent.

(3) The Seller shall perform processing, mixing or combining (further processing) of provided objects on our behalf. The same shall apply if we further process the delivered goods ourselves, in which case we shall be considered the manufacturer and shall acquire ownership of the product no later than upon further processing in accordance with statutory regulations.

(4) The goods are to be transferred to us unconditionally, regardless of the payment of the price. However, if we accept an offer by the Seller to transfer ownership conditional on the payment of the purchase price in an individual case, then the Seller’s retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we shall also remain authorised to resell the goods before payment of the purchase price with prior assignment of the resulting claim (alternatively the application of the simple reservation of title extended to the resale). This consequently excludes all other forms of retention of title, in particular the expanded retention of title that is passed on and extended to further processing.

7 Defective delivery

(1) Unless otherwise stipulated, statutory provisions apply with regard to our rights in the event of material defects and defects in title in respect of the goods (including wrong delivery and shortfall in delivery and improper installation, defective installation / operating instructions or manual) and in the event of other breaches of duty by the Seller.

(2) According to statutory provisions, the Seller is, in particular, liable for the goods having the contractually agreed properties upon transfer of risk to us.  In any case, product descriptions – in particular by means of designation or reference in our order – that form the subject of the respective contract, or that are incorporated into the contract in the same way as these GCP, shall be considered as an agreement on quality. In this case, it makes no difference whether the product description originated from us, the Seller or the manufacturer.

(3)  By way of deviation from Section 442 subsection 1 sentence 2 of the BGB, we are entitled to claims for defects without restriction, even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.

(4) For the commercial obligation of inspection and notification of defects, the statutory provisions (Sections 377 and 381 of the German Commercial Code (HGB)) shall apply, subject to the following conditions: Our duty to inspect is limited to defects that become apparent during our incoming inspection under external examination, including the shipping documents, or that are identifiable during our quality inspection by random sampling (e.g. transport damage, wrong delivery and shortfall in delivery). If acceptance has been agreed, then there shall be no inspection obligation. Furthermore, it depends on the extent to which an examination is feasible in the normal course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later shall remain unaffected. Regardless of our inspection obligation, our complaint (notification of defects) shall be deemed immediate and in good time, if it is sent within 5 working days of discovery or, in the case of obvious defects, of delivery.

(5) Subsequent performance shall also include the removal of the defective goods and their re-installation, if the goods have been installed in another item or attached to another item in accordance with their type and intended use; our statutory claim to reimbursement of corresponding expenses shall remain unaffected. Costs incurred by the Seller for the purposes of inspection and subsequent performance shall be borne by the Seller, even if it turns out that no defect actually existed. Our liability for damages in the event of unjustified requests for rectification of defects remains unaffected; in this respect, however, we shall only be liable if we recognized, or were grossly negligent in failing to recognize, that no defect existed.

(6) Irrespective of our statutory rights and the provisions in paragraph 5, the following shall apply: If the Seller fails to fulfil its obligation of supplementary performance – at our discretion, by remedying the defect (rectification) or by delivery of a defect-free object (replacement delivery) – within a reasonable period set by us, then we are entitled to rectify the defect ourselves and to demand reimbursement from the Seller for the expenses incurred or an appropriate advance payment. If subsequent performance by the Seller fails, or is unreasonable for us (e.g. because of particular urgency, risk to operational safety or to avert disproportionate damage), then no deadline needs to be set; in such circumstances, we shall notify the Seller immediately, if possible in advance.

(7) We are also entitled, in accordance with statutory provisions, to a reduction of the purchase price or to rescind the contract in the event of a material defect or defect of title. In addition, we are entitled to claim compensation for damages and reimbursement of expenses in accordance with statutory provisions.

8 Supplier recourse

(1) We shall be entitled to our legally prescribed rights within a supply chain (supplier recourse in accordance with Section 445a, 445b and 478 of the BGB) without restriction in addition to defect claims. In particular, we shall be entitled to demand from the Seller exactly the type of subsequent performance (rectification of defects or replacement delivery) that we owe to our buyer in the individual case. Our legal option (Section 439 subsection 1 of the BGB) shall not be restricted by this.

(2) We shall notify the Seller and request a written statement with a brief description of the facts before we recognise or fulfil a defect claim asserted by our buyer (including the reimbursement in accordance with Sections 445a (1) and 439 (2 and 3) of the BGB). If a substantiated statement is not made within a reasonable period and no amicable solution is reached, then the claim for defects actually granted by us shall be deemed to be owed to our buyer. In this case, the Seller shall be responsible for providing proof to the contrary.

(3) Our claims arising from supplier recourse shall also apply if the defective goods have been further processed by us or another entrepreneur, e.g. by installation in another product.

 

9 Manufacturer’s liability

(1) If the Seller is responsible for a product damage, then it must indemnify us against claims made by third parties, insofar as the cause of the defect is within the scope of the Seller‘s control and organisation and if the Seller is liable in the external relationship.

(2) In connection with its indemnity obligation, the Seller must reimburse expenses in accordance with Sections 683 and 670 of the BGB that result from or in connection with third-party claims including recall campaigns that we implement. To the extent possible and reasonable, we shall inform the Seller of the content and scope of recall measures and give said party the opportunity to respond to this. This shall not affect further legal claims.

(3) The Seller must obtain and maintain product liability insurance with lump-sum coverage of at least two million euros per personal injury / damage to property.

10 Statute of limitations

(1) The reciprocal claims of the contracting parties expire in accordance with the statutory provisions, unless otherwise stated below.

(2) Notwithstanding Section 438 subsection 1 no. 3 of the BGB, the general limitation period for claims for defects is three years from the transfer of risk. Insofar as acceptance has been agreed, the period of limitation begins with the acceptance. The three-year limitation period also applies mutatis mutandis to claims arising from defects in title, in which case the statutory limitation period for claims in rem for third parties (Section 438 subsection 1 no. 1 of the BGB) remains unaffected; claims arising from defects of title shall in no case become statute-barred as long as the third party can still assert the right against us, particularly in the absence of a limitation period.

(3) The periods of limitation of the purchase rights including the above extension shall apply – to the extent permitted by law – to all contractual claims for defects. Insofar as we are entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (Sections 195 and 199 of the BGB) shall apply, if the application of the limitation period of the purchase right in individual cases does not lead to a longer limitation period.

11 Choice of law and jurisdiction

(1) For these GCP and the contractual relationship between ourselves and the Seller, the law of the Federal Republic of Germany applies to the exclusion of uniform international law, in particular the UN Sales Convention.

(2) If the Seller is a merchant as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, then the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be our place of business in Wiesbaden. The same shall apply if the Seller is an entrepreneur as defined by Section 14 of the BGB. In all cases, however, we shall also be entitled to initiate legal action at the place of performance of the delivery obligation in accordance with these GCP or a priority individual agreement or at the general place of jurisdiction of the Seller.  Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.

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