General Conditions of Purchase

§1 General, Area of Validity

(1) The following general terms of purchase (“GTP”) apply to all our business relationships with our business partners and suppliers (hereinafter referred to as: “the seller”). The GTP shall only apply when the seller refers to a business person (Section 14 of the German Civil Code (BGB)), a legal person under public law or to publically owned separate assets.

(2) The GTP apply in particular to agreements on the sale and/or delivery of moveable objects (hereinafter also referred to as: goods), irrespective of whether the sellers produce the goods themselves or purchase them from suppliers (sections 433, 651 BGB). The GTP shall also apply in their relevant version as a general agreement for future contracts for the sale and/or the supply of moveable objects with the same seller, without requiring us to refer to these in each individual case. We will inform the seller of any changes to our GTP without delay.

(3) These GTP apply exclusively. Any differing, conflicting or supplementary general terms and conditions from the seller only become an integral part of the agreement if we explicitly agree to their application in writing. This approval requirement shall apply in every case, for instance it also applies if we unreservedly accept deliveries from the seller in full knowledge of the seller’s general terms and conditions.

(4) Any individual agreements concluded with the seller (including subsidiary agreements, additions and changes) always take precedence over these GTP. The content of such agreements is dependent on a written contract or our written confirmation.

(5) Material declarations and announcements that have to be submitted to us by the seller upon completion of the contract (e.g. the setting of deadlines, reminders, cancellation) must all be submitted in writing to be considered valid.

(6) References to the validity of legal provisions are for clarification purposes only. Even without any reference of this kind the legal provisions shall still apply insofar as they are not directly adapted or explicitly excluded in these GTP.

§ 2 Conclusion of Contract

(1) Our order shall only be deemed binding with a written declaration or confirmation. The seller must inform us before acceptance of any obvious errors (e.g. spelling or errors of calculation) and omissions in the order including order documentation so that they can be corrected or completed; otherwise the contract is deemed not to be concluded.

(2) The seller is bound to confirm our order within a period of 14 days in writing or to complete the order without reservation (acceptance) by dispatching the goods.

A delayed acceptance shall be deemed to be a new offer and requires acceptance by us.

§ 3 Delivery period and delivery default

(1) The delivery period stipulated by us in the order shall be deemed binding. If the delivery period is not stipulated in the order and was not otherwise agreed then it shall be deemed to be two weeks from the conclusion of contract. If sellers are unable to adhere to agreed delivery periods – for whichever reason – they are obliged to inform us of this in writing without delay .

(2) If the seller does not carry out the agreed service, or does so but not within the agreed delivery period or is in default, then our rights – in particular those concerning withdrawal and damages – are governed by the legal provisions. The stipulations in para. 3 remain unaffected.

(3) If the seller is in default we can demand a contract penalty amounting to 1% of the net price per full calendar week, but no more than 5% of the net price of the goods that have been delivered late. In addition to the fulfilment of the contract, we are entitled to demand the contract penalty and damages from the seller as a minimum amount, in line with the legal provisions; the enforcement of additional damages claims remains unaffected. If we accept the late service we will claim the contract penalty at the latest with the final payment.

§ 4 Service, delivery, passing of risk, delayed acceptance

(1) The seller is not authorised to instruct third parties (e.g. subcontractors) to provide the service on the seller’s behalf without our prior written consent. The seller bears the risk of supply for the services to be provided unless an alternative agreement has been made in the individual case (e.g. sale of goods in stock).

(2) Within Germany the delivery is free of charge to the location specified in the order. If the destination is not specified and not otherwise agreed the delivery shall be dispatched to our business location in Hamburg. The relevant destination is also the place of fulfilment (obligation to provide).

(3) The delivery has to include a delivery note detailing the date (issue and dispatch), content of the delivery (article number and quantity) and our order identifier (date and number). We are not responsible for any delays in processing and payment resulting from a missing or incomplete delivery note.

In addition to the delivery note, we also require a separate dispatch note with the same content.

(4) The risk of accidental loss and accidental deterioration of the item is passed on to us once the goods have been transferred to the place of fulfilment. The status of the transfer or acceptance is the same if there is a delay of acceptance on our part.

(5) The legal provisions shall apply in the event of delay in acceptance on our part. However the seller must then explicitly offer the service even if a defined or definable calendar period for an action or cooperation (e.g. order of material) on our part is agreed. If we delay acceptance, the seller can demand reimbursement for additional costs incurred in accordance with the legal provisions (section 304 BGB). If the contract concerns a specific item to be produced by the seller (custom-made item), then the seller shall only have additional rights if we have made a commitment to cooperate with the seller and we are at fault in failing to cooperate.

[§ 5 Prices and Terms of Payment

(1) The price stipulated in the order shall be deemed binding. All prices include VAT unless it is specifically stated otherwise.

(2) Unless otherwise agreed in the individual case the price includes all services and additional services to be provided by the seller (e.g. assembly, installation) as well as all additional costs (e.g. appropriate packaging, transport costs including any transport and liability insurance). The seller has to take back any packaging material at our request.

(3) The agreed price is due for payment within 30 calendar days of complete delivery and provision of service (including any agreed acceptance) and upon receipt of an appropriate invoice. If we make payment within 14 calendar days the seller shall grant us a 3% discount on the net amount of the invoice.

(4) We are not liable for any commercial default interest. The default interest amounts to 5 percentage points above the basic annual interest rate. Default on our part takes effect in accordance with the legal provisions but if there is an alternative arrangement a written reminder from the seller is at any rate required.

(5) We are entitled to set-off rights and rights of retention in accordance with the law in addition to the right to object to the non-fulfilment of contract. We are, in particular, entitled to withhold due payments provided that we still have outstanding claims for incomplete or unsatisfactory services from the seller.

(6) The seller only has set-off rights or rights of retention on account of legally established or undisputed counterclaims.

§ 6 Confidentiality and Reservation of Proprietary Rights

(1) We reserve proprietary rights and copyright to images, plans, drawings, calculations, instructions, product descriptions and other documents. These documents shall be used exclusively for contractual services and must be returned to us upon completion of the contract. These documents shall remain confidential in respect of third parties, even after completion of the contract. This non-disclosure agreement only expires when and insofar as the knowledge included in the documents provided is in the public realm.

(2) The aforementioned provision also applies to substances and materials (e.g. software, finished and half-finished products) as well as tools, templates and samples and other objects that we make available to the seller for the production process. Such objects – insofar as they are not further processed – shall be separately retained at the seller’s cost and appropriately insured against destruction and loss.

(3) Any processing, mixing or combining (further processing) of the supplied objects is carried out on our behalf. The same applies to further processing of the supplied goods by us so that we shall be deemed as manufacturers and at the latest at the point of further processing acquire ownership of the product in accordance with legal provisions.

(4) The transfer of ownership to us must take place unconditionally and irrespective of payment of the price. However if in an individual case we accept a conditional offer of transfer of ownership from the seller by paying the purchase price, the seller’s reservation of proprietary rights expires at the latest upon payment of the purchase price for the delivered goods. We retain the right to sell on the goods in the normal course of business, including prior to payment of the purchase price, by assignment of future claims (alternatively by application of a simple extension of reservation of proprietary rights). This therefore excludes all other forms of reservation of proprietary rights, in particular the extended form, the transferred form and the prolonged reservation of proprietary rights for the purpose of further processing.

§ 7 Defective Delivery

1) Legal provisions shall apply to our rights with regard to defect of goods or title (including incorrect or incomplete delivery as well as incorrect assembly, inadequate assembly and operating instructions) and other breaches of contract by the seller insofar as no other provision is defined below.

(2) In accordance with legal provisions the seller is in particular liable for ensuring that the goods have the agreed composition when risk is transferred to us. For the agreement on the composition of the goods those product descriptions shall apply that – in particular by naming or referencing in our order – are the object of the relevant contract or are included in the contract in the same way as these GTP. There is no distinction made here if the product description originates from us, the seller or the manufacturer.

(3) In derogation of section 442 para. 1 sent. 2 BGB we also are entitled to unlimited claims against defects on account of gross negligence if we were unaware of the defect when the contract was concluded.

(4) For commercial duties of inspection and complaint notification the legal provisions shall apply (sections 377, 381 HGB), subject to the following conditions: our duty of inspection is restricted to defects that are clearly identified during our incoming goods inspection with external assessment including delivery papers as well as during our quality control in the sampling procedure (e.g. transport damages, incorrect or incomplete delivery). There is no inspection duty insofar as an acceptance is agreed. Otherwise it depends to what extent an inspection is feasible considering the circumstances of the individual case in the normal course of business.

Our duty of complaint notification for subsequently discovered defects remains unaffected. In all cases our complaint (notice of defect) shall be deemed as immediate and timely if it is submitted to the seller within 10 calendar days after delivery.

(5) Any costs incurred by the seller for the purposes of inspection and rectification (including any dismantling and assembly costs) shall also be borne by the seller if no actual defect is subsequently found. Our liability for damages in the case of unwarranted demands for defect correction remains unaffected. However, in this respect we are only liable if we have recognised or have failed to recognise on account of gross negligence that there was no defect in the product.

(6) If the seller does not meet the responsibility of fulfilment – we have the choice between requiring the seller to remove the defect (rectification) or to supply a product that is free of defects (replacement) – within an appropriate deadline set by us, we shall have the right to remove the defect ourselves and to demand reimbursement from the seller for any costs required or to demand that the seller makes an appropriate advance payment in this regard. No deadline shall be required if fulfilment by the seller is unsuccessful or unreasonable for us (e.g. on account of particular urgency, endangerment to operational safety or the threat of disproportionate damages). We shall inform the seller without delay, and if possible in writing with advance warning, should any such circumstances arise.

(7) With regard to defect of goods or title we are otherwise entitled to a reduction in the purchase price or to withdraw from the contract in accordance with legal provisions. We are also entitled to claim for damages and reimbursement for costs in accordance with the legal provisions.

§ 8 Supplier's Recourse

(1) In addition to claims against defects, we have an unrestricted claim to our legally-defined rights of recourse within a supply chain (supplier's recourse in accordance with sections 478, 479 BGB). In particular we are entitled to demand precisely the type of fulfilment (rectification or replacement) from the seller that we owe to our customer in any individual case. Our legal right of choice (section 439 para. 1 BGB) is not restricted by this.

(2) Before we recognise or fulfil a defect claim made by our customer (including reimbursement of costs in accordance with sections 478 para. 3, 439 para. 2 BGB), we shall inform the seller of this and, having provided a brief explanation of the circumstances, request the seller’s written response. Our customer shall have recourse to the damage claim that we have actually granted if the response is not provided within an appropriate period and no mutually-acceptable solution is found. It is for the seller to provide evidence to the contrary in this case.

(3) Our claims arising from supplier's recourse shall also apply if the goods were further processed by us or one of our customers e.g. by integration into another product prior to sale to a consumer.

§ 9 Manufacturer's Liability

(1) If the seller is responsible for damage to a product, then the seller must indemnify us from claims by third parties insofar as the cause is in the seller’s area of control and organisation and the seller is liable in the third party relationship.

(2) As part of the indemnification duties the seller shall reimburse costs in accordance with sections 683, 670 BGB that arise from or in the context of a claim made by third parties including the product recalls instigated by us. Insofar as possible and reasonable, we will inform the seller of the content and extent of recall measures and provide the seller with an opportunity to respond. Further legal claims remain unaffected.

(3) The seller must take out and maintain a product liability insurance with a flat-rate coverage level of at least €10 million per personal/material damage incident.

§ 10 Limitation Period

(1) The reciprocal claims of the contract parties shall lapse in accordance with legal provisions provided that no other agreement is defined below.

(2) In derogation of section 438 para. 1 no. 3 BGB the general limitation period for claims against defects is 3 years from transfer of risk. Insofar as an acceptance is agreed, the limitation period begins with the acceptance. The 3-year limitation period also applies for claims resulting from defect of title, whereby the legal limitation period for third party claims of return (section 438 Abs. 1 no. 1 BGB) remains unaffected; moreover claims of title never lapse insofar as the third party can still enforce the right – in particular in the absence of limitation.

(3) The limitation periods in purchasing rights including the previous extension shall apply – in the legal remit – for all contractual claims against defects. Insofar as we are entitled to make non-contractual claims on account of a defect, the regular legal limitation period (sections 195, 199 BGB) shall apply if the application of limitation periods for purchasing rights does not result in a longer limitation period in the individual case.

§ 11 Applicable Law and Place of Jurisdiction

(1) For these GTP and all legal relationships between ourselves and the seller the law of the Federal Republic of Germany, excluding international law and the UN purchasing law in particular, shall apply. The conditions for and the effects of the reservation of proprietary rights are subject to the law of the relevant storage location of the item if the choice of applicable law in favour of German law is not permitted or is legally void.

(2) The final decision on all – contractual and non-contractual – disputes from or in the context of contracts to which these GTP are meant to apply is made in accordance with the arbitration code of the German Institution of Arbitration (DIS) under exclusion of regular legal proceedings. The arbitration court comprises three adjudicators and one adjudicator for disputes with a value in litigation of less than €5,000. The location for arbitration proceedings is Hamburg and the language is German. However we are authorised to take legal actions in individual cases before the responsible or state courts located at the place of business of the purchaser or at other courts empowered by the law.