General Terms and Conditions of Purchase

of Gerhard Geiger GmbH & Co. KG

§ 1 Scope of application, form

  1. These Terms and Conditions of Purchase shall apply to all business relationships with our suppliers if the suppliers are entrepreneurs (Section 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.
  2. These Terms and Conditions of Purchase shall apply in particular to contracts for the delivery of movable goods (“Goods”), irrespective of whether the Supplier manufactures the Goods itself or purchases them from upstream suppliers (Sections 433, 650 BGB). Unless otherwise agreed, these Terms and Conditions shall apply in the version valid at the time of the order or in any case in the version communicated to the Supplier in text form as a framework agreement also for similar future contracts, without us having to refer to them again in each individual case.
  3. These terms and conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the supplier shall only become part of the contract if and insofar as we have expressly agreed to their validity. This shall apply in any case, for example even if we accept the supplier’s deliveries without reservation in the knowledge of the supplier’s general terms and conditions.
  4. Individual agreements made with the Supplier in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
  5. Legally relevant declarations and notifications by the Supplier in relation to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence – in particular the declaring party’s power of representation – shall remain unaffected.

§ 2 Conclusion of contract

  1. Unless it contains a specific commitment period, our order shall be valid for one week, after which it shall expire. The supplier must notify us of obvious errors (e.g. typing and calculation errors) and incompleteness of the order for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.
  2. The supplier is obliged to accept our order within the binding period, which it can also do by dispatching the goods on time and without reservation (acceptance). Delayed acceptance shall be deemed a new offer and requires acceptance by us.

§ 3 Delivery time and delay in delivery

  1. The delivery time specified by us in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be two weeks from conclusion of the contract. The supplier is obliged to inform us immediately if he is unlikely to be able to meet agreed delivery times – for whatever reason.
  2. If the supplier is in default, we may – in addition to further statutory claims – demand liquidated damages for default in the amount of 1% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods delivered late. We reserve the right to prove that a higher loss has been incurred; the supplier reserves the right to prove that no loss at all or only a significantly lower loss has been incurred.

§ 4 Third parties, delivery, transfer of risk, default of acceptance

  1. The supplier who does not manufacture the goods itself may procure them from third parties, but shall then bear the procurement risk (unless otherwise agreed in individual cases, e.g. limitation to stock). The supplier who manufactures the goods himself but procures parts from third parties shall be liable for these as his vicarious agents.
  2. Delivery within Germany shall be “free domicile” (in the sense of the supplier bearing the costs and risks) to the place of delivery specified in the order. If no place of delivery is specified and nothing else has been agreed, delivery shall be made to our registered office in Bietigheim-Bissingen. The respective place of delivery is also the place of performance for the delivery and any subsequent performance (obligation to be performed at the place of performance).
  3. The delivery must be accompanied by a delivery bill stating the date (issue and dispatch), content of the delivery (article number and quantity) and our order identification (date and number). If the delivery bill is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch note with the same content must be sent to us separately from the delivery bill.
  4. The risk of accidental loss and accidental deterioration of the goods shall pass to us upon handover at the place of performance (paragraph [2] sentence 3). If acceptance has been agreed, this shall be decisive for the transfer of risk.
  5. The statutory provisions shall apply to our default of acceptance. However, the supplier must also expressly offer us its performance if a specific or determinable time has been agreed for an action or cooperation on our part (e.g. provision of material).

§ 5 Prices and terms of payment

  1. The price stated in the order is binding. All prices include statutory value added tax if this is not shown separately.
  2. Unless otherwise agreed in individual cases, the price shall include all services and ancillary services of the Supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. packaging, transportation costs including any transportation and transport 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 proper invoice. If we make payment within 14 calendar days, the supplier shall grant us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made when the transfer order is issued to our bank.
  4. We do not owe any interest on arrears. The statutory provisions shall apply to default in payment.
  5. The supplier shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims, unless the counterclaims are synallagmatically linked to our claim.

§ 6 Tools, confidentiality, retention of title

  1. We reserve ownership 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 confidentiality obligation shall only expire if and insofar as the knowledge contained in the documents provided has become generally known.
  2. We also reserve our property rights to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other objects that we provide to the supplier for production.
  3. If the supplier manufactures or procures special tools for the production of the goods, he shall be obliged to provide us with ownership of these tools in accordance with the following provisions:
    • a. If we agree to pay the tool costs, the supplier must invoice us accordingly. Upon payment of the invoice, ownership of the tool in question shall pass to us. Upon payment of the invoice, the supplier shall store the tool for us (ownership transfer relationship). In addition, we have the right to take physical possession of the tool at its location and to mark it as our property.
    • b. The supplier must also insure the tool in an existing contents insurance policy for its technical equipment;
    • c. The costs of maintenance, repair or restoration of the tools shall be borne by the supplier until the transfer of ownership to us, thereafter we shall bear them – unless the costs are due to improper handling of the tool by the supplier.
  4. Any processing, mixing or combination (further processing) by the supplier of items provided to us shall be carried out on our behalf. 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.
  5. The transfer of ownership of the goods to us must take place unconditionally and without regard to the payment of the price. All extended, forwarded and prolonged reservations of title are excluded. However, the following shall apply to a simple retention of title: If we accept an offer of the supplier for transfer of ownership conditional on payment of the purchase price, the supplier’s retention of title shall expire at the latest upon payment of the purchase price for the delivered goods; we shall remain authorized to resell the goods in the ordinary course of business even before payment of the purchase price, assigning the resulting claim in advance (alternatively, the simple extended retention of title limited to resale shall apply).

§ 7 Defective delivery

  1. The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the supplier, unless otherwise specified below. § Section 10 remains unaffected.
  2. In accordance with the statutory provisions, the supplier shall be liable in particular for ensuring that the goods have the agreed quality upon transfer of risk to us. In any case, the agreed quality shall be deemed to be the quality according to 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 terms and conditions. It makes no difference whether the product description originates from us, the supplier or the manufacturer.
  3. Notwithstanding § 442 para. 1 sentence 2 BGB, we shall also be entitled to claims for defects without restriction if the defect remained unknown to us upon conclusion of the contract due to gross negligence.
  4. The statutory provisions (Sections 377, 381 HGB [German Commercial Code]) shall apply to the commercial obligation to inspect and give notice of defects, subject to the following proviso (unless we have concluded a separate quality assurance agreement [QAA] with the supplier; in this case, the provisions in the QAA shall take precedence): Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, deviation from the agreed quality, incorrect and short delivery) . If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection 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. Notwithstanding our duty to inspect, our complaint (notification of defects) shall in any case be deemed to be immediate and timely if it is sent within seven 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 reinstallation, provided that the goods have been installed in another item or attached to another item in accordance with their nature and intended use; our statutory claim to reimbursement of corresponding expenses shall remain unaffected. The supplier shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy defects 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. Notwithstanding our statutory rights and the provisions in (5), the following shall apply: If the supplier does not fulfill its obligation to provide subsequent performance – at our discretion by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery) – within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement of the expenses required for this or a corresponding advance payment from the supplier. If subsequent performance by the supplier has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; however, we shall inform the supplier of such circumstances immediately, if possible in advance.
  7. Otherwise, we shall have the corresponding statutory rights in the event of a material defect or defect of title; in the event of infringements of property rights, we shall also have the rights specified in § 10.
  8. Limitation periods:
    • a. The limitation period for our rights due to material defects of the goods (if they are not subject to sentence 2) is three years; if acceptance has been agreed, from the date of acceptance. For goods that are used for a building in accordance with their customary use and cause its defectiveness, the period shall be six years (this shall also apply if we combine or process the goods with or into products and these products become part of a building or at least a component of a building; in this context, we would like to point out that we generally purchase the goods for electric drives that our customers install in sun protection systems and sell these in turn to the construction industry).
    • b. The limitation periods of three or six years shall also apply to claims arising from defects of title (whereby the statutory limitation period due to rights in rem of third parties [Section 438 (1) No. 1 BGB] shall remain unaffected); however, claims arising from defects of title shall in no case become time-barred as long as the third party can still assert its right – in particular in the absence of a limitation period – against us.
    • c. The limitation periods under sales law, including the above extensions, shall apply – to the extent permitted by law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply, unless the application of the statutory limitation periods of the law on sales leads to a longer limitation period in individual cases.
  9. Right of termination for framework supply contracts:
    In addition to the rights in respect of defects pursuant to (2) to (7) with regard to individual deliveries, we have the right to terminate framework supply contracts extraordinarily for good cause if the supplier repeatedly delivers defective goods despite a warning.

§ 8 Supplier recourse

  1. We shall be entitled to our statutory rights of recourse within a supply chain (supplier recourse pursuant to Sections 445a, 445b, 478 BGB) without restriction in addition to the claims for defects. In particular, we are entitled to demand exactly the type of subsequent performance (rectification or replacement delivery) from the supplier that we owe our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) is not restricted by this.
  2. Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 445a para. 1, 439 para. 2 and 3 BGB), we shall notify the supplier and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, however, the supplier shall also be responsible for providing evidence 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 Product and producer liability

  1. If the supplier 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. The supplier’s responsibility for its suppliers pursuant to § 4 (1) sentence 2 shall also apply in this respect.
  2. Within the scope of its indemnification obligation, the supplier shall reimburse expenses pursuant to Sections 683, 670 BGB arising from or in connection with claims asserted by third parties, including recall actions carried out by us. However, we shall inform the supplier of the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment. Further legal claims remain unaffected.
  3. The supplier shall take out and maintain extended product liability insurance with a lump sum cover for personal injury and property damage of at least EUR 2 million and with a cover of at least EUR 1 million for financial losses.

§ 10 Infringements of property rights

  1. In accordance with (2), the Supplier warrants that no industrial property rights or copyrights (hereinafter referred to as property rights) of third parties in countries of the European Union or other countries in which it manufactures the goods or has them manufactured are infringed by the goods delivered by it.
  2. The supplier shall be obliged to indemnify us against all claims asserted against us by third parties for infringement of industrial property rights and to reimburse us for all necessary expenses in connection with such claims. This shall not apply if the supplier proves that it is neither responsible for the infringement of the property rights nor should have been aware of it at the time of delivery if it had exercised due commercial care.
  3. Further legal or contractual claims on our part due to defects of title of the goods remain unaffected.

§ 11 Choice of law, place of jurisdiction, court of arbitration

  1. These Terms and Conditions and the contractual relationship between us and the Supplier shall be governed by the laws of the Federal Republic of Germany, including the UN Convention on Contracts for the International Sale of Goods (CISG).
  2. The exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be Bietigheim-Bissingen (unless an arbitration agreement applies in accordance with [3]). However, we are also entitled to bring an action in the general or a special place of jurisdiction of the supplier. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
  3. If the supplier is based in China or India, the following shall apply in deviation from (2):
    • China: “Any dispute arising from or in connection with this Contract shall be submitted to China International Economic and Trade Arbitration Commission (CIETAC) Shanghai Sub-Commission (Arbitration Center) for arbitration which shall be conducted in accordance with the CIETAC’s arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties. The arbitral proceedings shall be conducted in English.”
    • India: “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The seat of the arbitration shall be New Delhi, India. The arbitral proceedings shall be conducted in English.”

Status: February 2020