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General Terms and Conditions of Purchase with Liquidated Damages for Delay
of the Produkt Service Erdt GmbH

§ 1 General, Scope

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

(2) The GTCP shall apply in particular to contracts for the sale and/or delivery of movable goods („Goods“), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the GTCP in the version valid at the time of the Buyer’s order or, in any case, in the version last notified to the Buyer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.

(3) These GTCP shall apply exclusively. Deviating, conflicting, or supplementary General Terms and Conditions of the Seller shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example, even if we accept the Seller’s deliveries without reservation in the knowledge of the Seller’s General Terms and Conditions.

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

(5) Legally relevant declarations and notifications to be made by the Seller to us after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in text form to be effective.

(6) References to the applicability of statutory provisions shall be for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCP.

§ 2 Conclusion of Contract

(1) Our order shall be deemed binding at the earliest upon submission or confirmation thereof in text form. The Seller shall notify us of obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion prior to acceptance; otherwise the contract shall be deemed not concluded.

(2) The Seller is obliged to confirm our order in text form within a period of 5 days or, in particular, to execute it without reservation by dispatching the goods (acceptance). A delayed acceptance is considered to be a new offer and requires acceptance by us.

§ 3 Delivery Time and Delivery Default

(1) The delivery time stated by us in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it is two weeks from the conclusion of the contract. The Seller is obliged to inform us immediately in text form if it will probably not be able to meet agreed delivery times – for whatever reason.

(2) If the Seller does not perform or does not perform within the agreed delivery time or if the Seller is in default, our rights – in particular to rescission and compensation for damages – shall be determined in accordance with the statutory provisions. The provisions of Paragraph 3 shall remain unaffected.

(3) If the Seller is in default, we may – in addition to further statutory claims – demand lump-sum compensation for our default damages in the amount of 1 % of the net price per completed calendar week but in total not more than 5 % of the net price of the goods delivered late. We reserve the right to prove that higher damages have been incurred. The Seller reserves the right to prove that no damage at all or only a significantly lower damage has occurred.

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

(1) The Seller shall not be entitled to have the deliverables owed by it rendered by third parties (e.g. subcontractors) without our prior written consent. The Seller shall bear the procurement risk for its deliverables unless otherwise agreed in the individual case (e.g. limitation to stock).

(2) Unless otherwise agreed, delivery shall be made „free domicile“ within Germany to the place specified in the order. The delivery shall be made to our business headquarters in Viernheim if the place of destination is not specified and nothing else has been agreed. The respective place of destination is also the place of performance for the delivery and any subsequent performance (obligation to be performed at creditor’s business location).

(3) Delivery shall be made in accordance with the specifications of our General Terms and Conditions of Delivery for Deliveries to Produktservice Erdt GmbH.

(4) The risk of accidental loss and accidental deterioration of the item shall pass to us upon handover at the place of performance. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis in the event of acceptance. In the event that we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.

(5) The statutory provisions shall apply to the occurrence of our default in acceptance. However, the Seller must also expressly offer its performance to us if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of materials). The Seller may demand compensation for its additional expenses in accordance with the statutory provisions (§ 304 BGB) if we are in default of acceptance. If the contract relates to a unique item to be manufactured by the Seller (individual production), the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.

§ 5 Prices and Terms of Payment

(1) The price stated in the order is binding. All prices are inclusive of statutory value added tax if this is not shown separately.

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

(3) The agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a valid invoice. The Seller grants us a 3 % discount on the net amount of the invoice if we make payment within 14 calendar days. In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before the expiry of the payment deadline. We shall not be responsible for any delays caused by the banks involved in the payment process.

(4) We do not owe any interest on arrears within the meaning of § 353 HGB – German Commercial Code. The statutory provisions shall apply to default in payment.

(5) We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. We shall be particularly entitled to withhold payments due as long as we are still entitled to claims against the Seller arising from incomplete or faulty performance.

(6) The Seller shall only have a right of set-off in respect of counterclaims which have become res judicata, or are undisputed, or if the counterclaim arises from the same contractual relationship. The Seller may only exercise a right of retention if its counterclaim is based on the same contractual relationship.

§ 6 Secrecy and Reservation of Proprietary Rights

(1) We reserve the proprietary rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.

(2) The foregoing provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples, and other items which we provide to the Seller for production. Such items shall – as long as they are not processed – be stored separately at the Seller’s expense and insured to a reasonable extent against destruction and loss.

(3) Any processing, mixing, or combination (further processing) of provided items by the Seller shall be carried out for us. The same shall apply in the event of further processing of the delivered goods by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.

(4) The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. Declarations of acceptance on our part, also implied ones, always refer to an unconditional transfer of ownership. If, however, in an individual case we expressly accept an offer of the Seller for transfer of title conditional on payment of the purchase price, the Seller’s retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorized to resell the goods in the ordinary course of business even prior to payment of the purchase price with advance assignment of the claim arising therefrom (alternatively, the simple reservation of proprietary rights extended to the resale shall apply). The ordinary course of business also includes resale within the companies of the Erdt Group at a reasonable purchase price. This excludes all other forms of reservation of proprietary rights, in particular the extended retention of title, the passed-on retention of title, and the reservation of proprietary rights extended to further processing.

§ 7 Faulty Delivery

(1) Unless otherwise provided below, the statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including wrong delivery and short delivery as well as improper assembly, defective assembly, operating or instruction manual) and in the event of other breaches of duty by the Seller.

(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality when the risk passes to us. In any case, those product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or have been included in the contract in the same way as these GTCP shall be deemed to be an agreement on the quality. It makes no difference whether the product description comes from us, the Seller, or the manufacturer.

(3) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial obligation to examine the goods and to give notice of defects, subject to the following proviso: Our obligation to inspect shall be limited to defects which become apparent during our incoming goods inspection by external examination including the delivery documents as well as during our quality control by sampling (e.g. transport damage, wrong and short delivery). Insofar as acceptance has been agreed, there shall be no obligation to inspect. In other respects, it depends on the extent to which an investigation is feasible in the ordinary course of business, taking into account the circumstances of the individual case.
Our obligation to give notice of defects discovered later remains unaffected. In all cases, our complaint (Notice of Defect) shall be deemed to be immediate and timely if it is received by the Seller within seven working days.

(5) The costs incurred by the Seller for the purpose of inspection and subsequent performance (including any removal and installation costs) shall be borne by the Seller even if it turns out that there was actually no deficiency. Our liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected. In this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.

(6) If the Seller fails to meet its obligation to remedy the defect – at our option by remedying the defect (rectification) or by delivering an item free of defects (replacement) – within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the expenses required for this purpose or a corresponding advance payment. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need be set. We shall inform the Seller of such circumstances without undue delay, if possible, in advance.

(7) Moreover, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.

§ 8 Supplier Recourse

(1) We shall be entitled to our legally determined recourse claims within a supply chain (Supplier Recourse pursuant to §§ 478, 479 BGB) without limitation in addition to the defect claims. We shall be particularly entitled to demand from the Seller exactly the type of subsequent performance (repair or replacement delivery) that we owe our customer in the individual case. Our statutory Right of Choice (§ 439 para. 1 BGB) shall not be restricted hereby.

(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 478 (2), 439 (2) BGB), we shall notify the Seller and request a written statement, briefly stating the facts of the case. If the statement is not made within a reasonable period of time and if no amicable solution is brought about, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Seller shall be responsible for proving the contrary.

(3) Our claims arising from Supplier Recourse shall also apply if the goods have been further processed by us or one of our customers, e.g. by incorporation into another product, prior to their sale to a consumer.

§ 9 Producer Liability

(1) If the Seller is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause lies within its sphere of control and organization and it is liable itself in relation to third parties.

(2) Within the scope of its Indemnification Obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 BGB arising from or in connection with a third-party claim including recall actions carried out by us. We will inform the Seller about the content and scope of recall measures – as far as possible and reasonable – and give it the opportunity to comment. Further legal claims remain unaffected.

(3) The Seller shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 5 million per personal injury/property damage.

§ 10 Compliance with the Minimum Wage Act

(1) The Seller warrants to comply with the provisions of the Minimum Wage Act or the corresponding applicable minimum wage collective agreements. The Supplier commits to pay its own employees an hourly wage in the amount of the applicable minimum wage in connection with services rendered for us. In the event that the Seller, for its part, uses a subcontractor or a lender for the performance of the contract, it shall obligate such subcontractor or lender accordingly within the meaning of sentence 1.

(2) A violation of Paragraph 1 may result in the immediate termination of the contractual relationship. In this respect, we shall be entitled to a special right of termination.

(3) The Seller shall indemnify us against all claims of third parties within the meaning of Section 13 of the German Minimum Wage Act (MiLoG) or Section 14 of the German Posted Workers Act (Arbeitnehmer-Entsendegesetz) based on a breach of its obligation to pay a minimum wage or on a breach of the obligation of subcontractors/hiring companies commissioned by it to pay a minimum wage. This obligation to indemnify shall also expressly apply with regard to claims by social security carriers and tax authorities.

§ 11 Limitation

(1) The mutual entitlements of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.

(2) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims for defects shall be 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall apply mutatis mutandis to claims arising from Defects of Title, whereby the statutory limitation period for claims in rem of third parties for surrender of goods (Section 438 (1) no. 1 of the German Civil Code (BGB)) shall remain unaffected. In addition, claims arising from Defects of Title shall in no case become time-barred as long as the third party can still assert the right against us – in particular in the absence of limitation.

(3) The limitation periods of the law on sales including the above extension shall apply – to the extent provided by law – to all contractual defect claims. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period shall apply (§§ 195, 199 BGB), unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.

§ 12 Choice of Law and Place of Jurisdiction

(1) These GTCP and the contractual relationship between us and the Seller shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Viernheim. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation pursuant to these GTCP or a prior individual agreement or at the general place of jurisdiction of the Seller. Overriding statutory provisions, in particular on exclusive responsibilities, shall remain unaffected.

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