General Terms and Conditions of Purchase

§ 1 Scope of application

These Terms and Conditions of Purchase apply to all business relations with our suppliers if the suppliers are entrepreneurs (§ 14 BGB), a legal entity under public law or a special fund under public law.
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 sub-suppliers (§§ 433, 650 BGB). Unless otherwise agreed, these terms and conditions in the version valid at the time of the order or in any case in the version notified to the supplier in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
These terms and conditions shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Supplier shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This shall apply in any case, even if, for example, we accept the supplier's deliveries without reservation while being aware of the supplier's general terms and conditions.
Individual agreements made in individual cases with the Supplier (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation.
Legally relevant declarations and notifications of the supplier with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and other evidence - in particular the power of representation of the declaring party - shall remain unaffected.

§ 2 Conclusion of contract

Our order shall be valid for one week if it does not contain a specific binding period; thereafter it shall expire. The supplier shall notify us of obvious errors (e.g. spelling and calculation errors) and incompleteness of the order for the purpose of correction or completion prior to acceptance; otherwise the contract shall be deemed not to have been concluded.
The supplier is obliged to accept our order within the binding period, which he can also do by timely, unconditional dispatch of the goods (acceptance). Late acceptance shall be deemed a new offer and shall require acceptance by us.

§ 3 Delivery time and delay in delivery

The delivery time stated by us in the order is binding. If the delivery time is not stated in the order and has not been otherwise agreed, it shall be two weeks from the conclusion of the contract. The supplier is obliged to inform us immediately if it is likely that it will not be able to meet the agreed delivery times, for whatever reason.
If the supplier is in default, we may - in addition to further legal claims - demand lump-sum damages for default amounting to 1% of the net price per completed calendar week, but not more than 5% of the net price of the goods delivered late in total. We reserve the right to prove that a higher damage has occurred; the supplier that no damage or only a considerably lower damage has occurred.

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

The supplier who does not manufacture the goods himself may procure them from third parties, but then bears 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.
Delivery within Germany shall be "free domicile" (in the sense of cost and risk bearing by the supplier) to the place of delivery specified in the order. Unless otherwise agreed, delivery shall be made to our place of business in Bietigheim-Bissingen, Germany. The respective place of delivery shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver).
The delivery shall be accompanied by a delivery note stating the date (issue and dispatch), contents of the delivery (article number and quantity) and our order identification (date and number). If the delivery note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. Separately from the delivery note, a corresponding dispatch note with the same content shall be sent to us.
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.
The statutory provisions shall apply to our default of acceptance. However, the supplier must also expressly offer his services to us 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

The price stated in the order is binding. All prices are quoted inclusive of statutory value added tax, unless this is shown separately.
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, transport costs including any transport and traffic liability insurance).
The agreed price is 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 discount of 3% on the net amount of the invoice. In the case of bank transfers, payment shall be deemed to have been made when the transfer order is issued to our bank.
We do not owe any interest on the due date. The statutory provisions shall apply to default in payment.
The supplier shall have a right of set-off or retention only in the event of counterclaims which have been legally established or are undisputed, unless the counterclaims are synallagmatically linked with our claim.

§ 6 Tools, Confidentiality, Reservation of Title

We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, implementation 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 not expire until and to the extent that the knowledge contained in the documents provided has become generally known.
We also reserve our ownership rights to materials and supplies (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the supplier for manufacture.
If the supplier manufactures special tools for the manufacture of the goods or procures such tools, he shall be obliged to procure ownership of such tools for us in accordance with the following provisions:
- a. Should we agree to pay the tool costs, the supplier shall invoice us accordingly. Upon payment of the invoice, ownership of the relevant tool shall pass to us. Upon payment of the invoice, the supplier shall keep the tool in safe custody for us (indirect possession arrangement). In addition, we shall have the right to physically take the tool into our possession at its location and to mark it as our property.
- b. The supplier must also insure the tool in an existing content insurance of his 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 based on improper handling of the tools by the supplier.
Any processing, mixing or combination (further processing) of items - provided by us - by the supplier shall be carried out on our behalf. The same applies to further processing of the delivered goods by us, so that we are deemed to be the manufacturer and acquire ownership of the product in accordance with the statutory provisions at the latest upon further processing.
The transfer of ownership of the goods to us must take place unconditionally and regardless of the payment of the price. All extended, forwarded and extended reservations of title are excluded. For a simple retention of title, however, the following shall apply: If we accept an offer for transfer of title made by the supplier on the basis of payment of the purchase price, the retention of title of the supplier shall expire at the latest upon payment of the purchase price for the delivered goods; we shall remain authorised 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, validity of the simple and extended retention of title limited to the resale).

§ 7 Defective delivery

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. §10 remains unaffected.
In accordance with the statutory provisions, the supplier shall be liable in particular for ensuring that the goods have the agreed quality when the risk passes to us. The agreed quality shall in any case be the quality according to product descriptions which - in particular by designation or reference in our order - are the subject of the respective contract or have been included in the contract in the same way as these conditions. It makes no difference whether the product description originates from us, the supplier or the manufacturer.
Contrary to § 442 Para. 1 S. 2 BGB, we shall be entitled to assert claims based on defects without restriction even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial obligation to inspect and give notice of defects (unless we have concluded a separate quality assurance agreement [QSV] with the supplier; in this case the provisions of the QSV shall take precedence): Our obligation to inspect is limited to defects which become apparent during our incoming goods inspection under external inspection including the delivery documents (e.g. transport damage, deviation from the agreed quality, wrong and short delivery). If acceptance has been agreed, there shall be 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 shall remain unaffected. Irrespective of our obligation to inspect, our complaint (notice 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.
Subsequent performance shall also include the removal of the defective goods and their reinstallation 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. The Supplier shall bear the expenses necessary for the purpose of testing and subsequent performance even if it turns out that no defect actually existed. Our liability for damages in the event of an unjustified demand to remedy defects shall remain unaffected; in this respect, however, we shall only be liable if we have recognised or grossly negligently failed to recognise that no defect existed.
Irrespective of our statutory rights and the provisions in (5), the following shall apply: If the supplier does not fulfil his obligation to subsequent performance - at our option by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery) - within a reasonable period set by us, we shall be entitled to remedy the defect ourselves and demand reimbursement from the supplier of the expenses required for this or a corresponding advance payment. 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.
Otherwise, we shall have the corresponding statutory rights in the event of a material defect or defect of title and in case of property right infringements, the rights referred to in § 10.
Limitation periods:
- a. The period of limitation for our rights due to material defects of the goods (if it does not fall under sentence 2) shall be three years; if acceptance has been agreed, from this date. For goods which are used for a building in accordance with their usual use and which 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 connection we point out that we generally purchase the goods for electrical drives which 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 in title (whereby the statutory limitation period relating to rights in rem of third parties [§ 438 Para. 1 No. 1 BGB] shall remain unaffected); claims arising from defects in title shall not, however, become statute-barred under any circumstances as long as the third party can still assert his right against us - in particular in the absence of a limitation period.
- c. The limitation periods under sales law, including the aforementioned extension, 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 here, unless the application of the statutory limitation periods of the sales law in individual cases leads to a longer limitation period.
Right of termination for framework supply agreements:
In addition to the defect rights according to (2) to (7) with regard to individual deliveries, we have the right to terminate framework supply agreements for good cause if the supplier repeatedly delivers defective goods despite warning.

§ 8 Supplier recourse

Our statutory rights of recourse within a supply chain (supplier recourse in accordance with §§ 445a, 445b, 478 BGB) shall accrue to us without restriction in addition to the claims based on defects. In particular, we shall be entitled to demand from the supplier exactly the type of subsequent performance (rectification or replacement delivery) which we owe to our customer in individual cases. Our statutory right of choice (§ 439 para. 1 BGB) is not restricted by this.
Before we acknowledge or fulfil 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 and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. The supplier retains the right to prove the contrary, but in this case he is also obliged to prove the contrary.
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

If the supplier is responsible for product damage, he shall indemnify us against claims by third parties to the extent that the cause lies within his sphere of control and organisation and he himself is liable externally. The Supplier's responsibility for its suppliers in accordance with § 4 (1) sentence 2 shall also apply to this extent.
Within the scope of his obligation to indemnify, the supplier shall reimburse expenses in accordance with §§ 683, 670 BGB (German Civil Code) which arise from or in connection with claims by third parties, including recall actions carried out by us. We will, however, inform the supplier about 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.
The supplier shall take out and maintain an extended product liability insurance with a lump sum cover for personal injury and property damage of at least two million EUR and with a sum cover of at least one million EUR for financial loss.

§ 10 Property right infringements

In accordance with (2), the supplier guarantees 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 he manufactures the goods or has them manufactured are infringed by the goods delivered by him.
The supplier is obliged to indemnify us from all claims which third parties assert against us due to infringement of industrial property rights and to reimburse us for all necessary expenses in connection with such claims. This shall not apply insofar as the supplier proves that he is neither responsible for the infringement of the property rights nor should have been aware of it at the time of delivery if he had exercised commercial care.
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, arbitral tribunal

The law of the Federal Republic of Germany including the UN Convention on Contracts for the International Sale of Goods (CISG) shall apply to these conditions and the contractual relationship between us and the supplier.
The exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship shall be Bietigheim-Bissingen (unless an arbitration agreement applies according to [3]). However, we shall also be entitled to bring an action at the supplier's general place of jurisdiction or at a special place of jurisdiction. Prior statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
If the Supplier is domiciled in China or India, the provisions of (2) shall not apply:
- 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.”

Issue date: February 2020