General Purchasing Terms and Conditions for the PRETTL Group Status September 1, 2017

Applicable in business transactions with companies, legal entities under public law and special funds under public law.

1. General Provisions

  1. 1.1  These GTC apply exclusively to legal relationships between the Supplier and Buyer in relation to deliveries and/or services of the Supplier (hereinafter: Deliveries), including in ongoing business relationships, and to all future business transactions with the Buyer, without this having to be separately stipulated. The Supplier does not recognize any amendments or supplements hereto, or any conditions contrary to these GTC or at variance from the Supplier’s conditions, unless this has been confirmed in writing as an addendum to these GTC and their validity thereby agreed. The same applies if the Supplier carries out delivery to the Buyer without reservations in the knowledge of the Buyer’s conflicting conditions or conditions at variance from these GTC.

  2. 1.2  The term “compensation claims” in these GTC includes claims for refund of wasted expenditure.

2. Offers

  1. 2.1  Offers from the Supplier are subject to confirmation and non-binding, unless the Supplier has explicitly designated them in written form as binding. Declarations of acceptance and orders from the Buyer, if classified as an offer pursuant to Article 145 of the Civil Code (“BGB”), only take binding effect through the written order confirmation of the Supplier. The Supplier has twelve working days to accept the Buyer’s orders from the time of receipt.

  2. 2.2  Documents forming part of the Supplier’s offer pursuant to section 2.1, such as illustrations, drawings, etc., and resultant measurement and weight specifications are only indicative, unless the Supplier has explicitly designated this as binding in writing. The same applies to usage data. The Supplier is subject to customary tolerances within the framework of what is reasonable for the Buyer.

  3. 2.3  The Supplier reserves proprietary rights, copyrights and all other rights to all drawings, samples, prospectuses, technical specifications, sketches, catalogues and other documents, and to other business and technical information from the Supplier. Such items may not be made available to third parties, commercially used or reproduced without the written consent of the Supplier, and shall be returned to the Supplier without delay if the order is not to be issued, or after the end of the business relationship, at the request of the Supplier, including all copies produced thereof. The Buyer shall only make such documents and/or information available to persons who need to make use of them and who are also subject to a confidentiality obligation. This does not apply if such documents and/or information are demonstrably publicly known or the Supplier has designated them for resale by the Buyer.

  4. 2.4  The IATF 16949, ISO 9001 and other quality standards are only applicable if and to the extent that the supplier has expressly given its written consent to the implementation of the respective quality standard.

3. Prices

  1. 3.1  Prices shall be understood as ex works, excluding postage, freight, insurance and packaging, plus relevant effective statutory V A T. The prices confirmed by the Supplier in its order confirmation shall apply. If the Supplier has agreed a delivery time of more than 8 weeks from receipt of the Buyer’s order in the contract with the Buyer, and cost factors at the Supplier have increased, for example due to rising costs, in particular as a result of increases in wage costs, collective wage agreements and/or material price increases, an equivalent price increase is therefore deemed to have been agreed with the Buyer. The Supplier shall verify such cost increases to the Buyer upon request. If the price increase amounts to more than 15% of the price agreed with the Buyer in the contract, the Buyer shall be entitled to a right of termination.

  2. 3.2  Deliveries of spare parts and the return of repaired goods are carried out, unless covered by defects liability, in return for the charging of a reasonable flat rate for forwarding and packaging costs, in addition to remuneration of the service provided by the Supplier. If the Supplier has declared its willingness to take back delivered goods as a goodwill gesture without any legal obligation, the Supplier charges a flat rate of 15% of the net purchase price of the affected goods as reimbursement for placing them back in storage and administrative expenditure.

  3. 3.3  If the Supplier has undertaken installation, assembly or any other service and nothing has been agreed to the contrary, in addition to the agreed remuneration, the Buyer shall assume all necessary ancillary costs, such as travel and transport costs, daily allowances and expenses.

4. Payment Terms

  1. 4.1  Payments shall be made free of transaction charges to the Supplier’s account. The invoice sum is due immediately. Supplier invoices shall be payable within 14 days of the invoice date, without any deductions. Payment by cheque is excluded. A precondition for any agreed discount by the Supplier is that the Buyer’s account does not display any other due invoice amounts and all payment deadlines shall be observed, including for partial payments. The Supplier is entitled to settle payments on the oldest due claim. However, at its discretion, the Supplier may also make delivery dependent on concurrent payment (e.g. through cash on delivery or a bank direct debit scheme) or on advance payment or security deposit. This applies in particular if the Supplier is aware of circumstances which call the Buyer’s creditworthiness into question, in particular if one of the Buyer’s cheques is not honoured or the Buyer suspends its payments. In case of exceeding the specified payment date, the Supplier may demand default interest of 8 percentage points above the base rate, pursuant to Article 247 of BGB. The Supplier reserves the right to verify greater damage caused by delay.

  2. 4.2  The Buyer may not offset the Supplier’s claims against counterclaims which are contested by the Supplier or which have not been legally established.

5. Retention of Title

  1. 5.1  The objects of deliveries (retained goods) remain the property of the Supplier until fulfilment of all claims due to it against the Buyer under the legal relationship. If the value of all security interests to which the Supplier is entitled exceeds the level of all secured claims by more than 20%, the Supplier shall release an equivalent share of security interests at the Buyer’s request; the Supplier is entitled to choose between security interests in the event of release.

  2. 5.2  In the course of retention of title, the Buyer is prohibited from pledging or assignment as security, and resale is only permitted to resellers in the usual course of business and only under the condition that the reseller receives payment from its client or makes a proviso that ownership only transfers to the client if it has fulfilled its payment obligations.

  3. 5.3  If the Buyer resells retained goods, it hereby cedes future claims against its clients based on resale, with all ancillary rights - including any account balance claims -, to the Supplier as security, without requiring any further specific declarations. If retained goods are resold in combination with other objects, without a unit price having been agreed for the retained goods, the Buyer cedes the share of the total price claim to the Supplier which is equivalent to the price of retained goods invoiced by the Supplier.

  4. 5.4  The Buyer is permitted to handle retained goods or mix or combine them with other objects. Handling is carried out on behalf of the Supplier. The Buyer shall safeguard new items generated on behalf of the Supplier with the care of a prudent businessman. The new item is regarded as a retained good. The Supplier and Buyer hereby agree that in case of combination or mixing with other objects not belonging to the Supplier, it is entitled to joint ownership of the new item in each case, in a share revealed by the ratio of the value of the combined or mixed retained good to the value of other goods at the time of combination or mixing. The new item is also regarded as a retained good in this respect. The provision on assignment of claims also applies to new items, pursuant to section 5.3. However, the assignment only applies up to an amount equivalent to the value invoiced by the supplier for handled, combined or mixed retained goods. If the Buyer combines retained goods with land or moveable objects, it shall also cede its due claim - as remuneration for such combination - to the Supplier, with all ancillary rights as security, in the amount of the ratio of the value of combined retained goods to other combined goods at the time of combination, without any further specific declarations being required.

  5. 5.5  Until cancelled, the Buyer is entitled to collect assigned claims based on resale. If an important ground exists, in particular in case of delayed payment, suspension of payment, filing of insolvency proceedings, bill protest or justified evidence of the Buyer’s excessive indebtedness or imminent inability to pay, the Supplier is entitled to revoke the Buyer’s direct debit. Moreover, after prior warning, the Supplier - in observance of a reasonable deadline - may disclose assignment as collateral, realize assigned claims and demand the disclosure of assignment as collateral to the client by the Buyer.

  6. 5.6  The Buyer shall immediately notify the Supplier of any distraint procedures, sequestrations or other disposals or interventions by third parties. In case of substantiation of a legitimate interest, the Buyer shall issue the necessary information to the Supplier on enforcement of its rights against the client and shall hand over necessary documents.

  7. 5.7  In case of breach of obligations by the Buyer, in particular in the event of delayed payment, the Supplier - following unsuccessful expiry of a reasonable deadline for the Buyer - is entitled to indemnification alongside retraction, and to withdrawal; the statutory provisions on the expendability of deadlines are not affected. The Buyer is subject to an obligation to return. No cancellation of the contract is included in retraction or enforcement of retention of title, or distraint of retained goods by the Supplier, unless explicitly stated by the Supplier.

6. Delivery and Performance Deadlines; Delay

  1. 6.1  Delivery deadlines which the Supplier has not explicitly agreed with the Buyer in writing as binding solely constitute non-binding data. In case of doubt, the delivery deadline begins upon dispatch of the order confirmation by the Supplier.

  2. 6.2  The observance of deadlines for deliveries requires timely receipt of all documents, necessary licences and approvals to be supplied by the Buyer, including plans, and observance of the agreed payment terms and other obligations by the Buyer. If these conditions are not fulfilled on time, the deadlines shall be extended appropriately; this does not apply if the Supplier is responsible for the delay.

  3. 6.3  If non-observance of agreed delivery deadlines can be attributed to acts of God, e.g. mobilization, war, riots or similar events, such as strikes, lockouts, etc., the deadlines shall be extended appropriately. The same applies to the case of late or incorrect delivery by the Supplier, or one of its suppliers.

  4. 6.4  If the Supplier culpably falls into default, the Buyer - if it can prove that it has incurred damage as a result - may demand compensation of 0.5% for each full week of delay, but to a maximum of 5% of the net price for the share of deliveries which could not be placed in serviceable operation due to the delay.

  5. 6.5  Any compensation claims of the Buyer for delayed delivery, or compensation claims in lieu of service performance, beyond the limits specified in section 6.4, are excluded in all cases of delayed delivery, even after expiry of a delivery deadline for the Supplier. This does not apply where liability is compulsory in cases of intent, gross negligence or due to injury to life, limb or health. The Buyer may only withdraw from the contract within the framework of statutory provisions if the Supplier is responsible for the delayed delivery. The above provisions are not associated with a change in the burden of proof to the detriment of the Buyer.

  1. 6.6  At the request of the Supplier, the Buyer is obliged to declare, within a reasonable deadline, whether it intends to withdraw from the contract or insist on delivery as a result of the delay in delivery.

  2. 6.7  If dispatch or notified delivery is delayed - at the request of the Buyer - by more than one month following notification of readiness for dispatch, the Buyer may be charged for storage in an amount of 0.5% of the price of the objects included in the deliveries, but to a maximum of 5%, for each additional commenced month. The contractual parties are at liberty to verify higher or lower storage costs.

7. Transfer of Risk

  1. 7.1  Delivery is carried out “ex works”, unless the Supplier has explicitly agreed to the contrary with the Buyer. The risk of accidental demise and accidental deterioration of items delivered by the Supplier therefore transfers to the Buyer upon handover or collection by the person responsible for transport, unless the Supplier has expressly accepted the dispatch or assembly of the delivered object in writing. The same applies if part deliveries are carried out.

  2. 7.2  In case of deliveries with installation or assembly, risk transfers to the Buyer on the date of acceptance into its own operations or, where agreed, following flawless trial operation.

  3. 7.3  If dispatch, notified delivery, start, performance of installation or assembly, acceptance into its own operations or trial operation are delayed for reasons attributable to the Buyer, or the Buyer falls into acceptance default for other reasons, risk transfers to the Buyer when acceptance default occurs.

8. Receipt

  1. 8.1  The Buyer may not refuse receipt of deliveries due to insignificant defects.

  2. 8.2  Partial deliveries are permitted if reasonable for the Buyer.

9. Installation and Assembly

The following provisions apply to installation and assembly, unless agreed to the contrary in writing:
9.1 The Buyer shall undertake and supply the following services in good time at its

own expense:
a. all excavations, construction works and related tasks in other sectors, including the necessary skilled and unskilled staff, building materials and tools,
b. commodities and materials required for assembly and start-up, such as scaffolding, hoists and other devices, fuels and lubricants,
c. energy and water at the point of use, including fittings, heating and lighting, d. sufficiently large, suitable, dry and lockable rooms at the installation site for storing machine parts, equipment, materials, tools, etc., and appropriate work and recreation areas for assembly personnel, including circumstances of appropriate sanitation; otherwise the Buyer shall take measures to protect the Supplier’s property and assembly personnel at the building site, as it would do to protect its own property,
e. protective clothing and safety devices, as required by the specific circumstances of the installation site.

  1. 9.2  Prior to the start of assembly works, the Buyer shall provide the necessary data on the location of concealed power supply lines, gas and water pipes, or similar equipment, and necessary static data, without being requested to do so.

  2. 9.3  Prior to the start of installation or assembly, the necessary material supplies and objects for the start of works shall be located at the installation or assembly site and all preliminary works shall be far enough advanced before the start of construction so that installation or assembly can be commenced as agreed and performed without interpretation. Access roads and the installation or assembly site shall be levelled and cleared.

  3. 9.4  If there is a delay in installation, assembly or start-up caused by circumstances for which the Supplier is not responsible, the Buyer shall to a reasonable extent assume the costs of idle time and additionally required journeys by the Supplier or assembly personnel.

  4. 9.5  The Buyer shall certify the working hours of assembly personnel and the end of any installation, assembly or start-up for the Supplier each week without delay.

  5. 9.6  If the Supplier requests acceptance of delivery following completion, the Buyer shall conduct this procedure within two weeks. If it fails to do so, acceptance is deemed to have been issued. Similarly, acceptance is deemed to have been issued if the delivered good - where appropriate following completion of an agreed test phase - has been placed in use.

10. Material Defects

The Supplier shall be liable for material defects as follows:

  1. 10.1  All those parts or services which have a material defect shall, at the discretion of

    the Supplier, be repaired, supplied as new or performed as new, free of charge,

    provided the cause of defect already existed at the time of transfer of risk.

  2. 10.2  Claims for supplementary performance become statute-barred in 12 months from the start of the statute of limitation; the same applies to cancellation and mitigation. This deadline does not apply where the law, pursuant to Article 438(1) subsection 2 (buildings and items for buildings), Article 479(1) (right of recourse) and Article 634a(1) subsection 2 (construction defects) of the Civil Code (BGB), sets out longer deadlines, in case of intent, fraudulent concealment of the defect or in case of non-observance of a quality guarantee. The statutory provisions on suspension of the statute of limitation, suspension and restart of deadlines are not


  3. 10.3  The Buyer’s notices of defects shall be issued in writing without delay.

  4. 10.4  In case of notices of defects the Buyer’s payments may be retained to the extent

    that they are in reasonable proportion to the occurred material defects. The Buyer may only retain payments if a notice of defects is enforced, and no doubt exists about its justification. No right of retention exists for the Buyer if its defect claims

are statute-barred. If the notice of defects has been wrongly issued, the Supplier is

entitled to demand compensation from the Buyer for incurred expenditure.

  1. 10.5  The Supplier is given the opportunity to ensure supplementary performance

    within a reasonable deadline.

  2. 10.6  If supplementary performance proves a failure, the Buyer - regardless of any

    compensation claims pursuant to section 10.10 - may withdraw from the contract

    or reduce remuneration.

  3. 10.7  No defect claims arise in case of merely an insignificant deviation from the agreed

    quality, in case of a merely insignificant adverse effect on usability, in case of natural wear and tear or damage arising following transfer of risk due to defective or negligent handling, excessive load, unsuitable equipment, defective construction works, unsuitable building ground or as a result of specific external influences which are not required under the contract, and in case of software errors that cannot be reproduced. If inappropriate modifications or repair works are carried out by the Buyer or by third parties, no defect claims shall arise for such or for the consequences thereof.

  4. 10.8  The Buyer’s claims for necessary expenditure related to the purpose of supplementary performance, in particular transport, shipping, labour and material costs, are excluded if expenditure increases because the object of delivery has subsequently been shipped to a location other than the Buyer’s business location, unless such shipment complies with its normal use.

  5. 10.9  The Buyer only has rights of recourse against the Supplier pursuant to Article 478 of BGB (recourse of the contractor) if the Buyer has not entered into any agreements with its customers beyond statutory defect claims. Moreover, section 10.8 hereof applies accordingly to the scope of the Buyer’s right of recourse against the Supplier, pursuant to Article 478(2) of BGB.

  6. 10.10  The Buyer’s compensation claims for a material defect are excluded. This does not apply to fraudulent concealment of the defect, non-observance of a quality guarantee, injury to life, limb or health or freedom, or to an intentional or grossly negligent breach of obligation by the Supplier. The above provisions are not associated with a change in the burden of proof to the detriment of the Buyer. Any further Buyer claims, or claims other than those set out in these GTC for a material defect, are excluded.

11. Intellectual Property Rights; Legal Defects

11.1 Unless agreed to the contrary, the Supplier is obliged only to perform delivery in the country of location of the Supplier, free from intellectual property rights of third parties (hereinafter: Property Rights). If a third party files justified claims against the Buyer for breach of property rights as a result of goods deliveries used as specified in the contract and performed by the Supplier, the Supplier shall be liable to the Buyer as follows within the deadline specified in section 10.2:

a. The Supplier shall, at its discretion and at its own expense, obtain a right of use for the affected deliveries, modify them in such a way that property right is not violated, or replace them. If it is not possible for the Supplier to do so under reasonable conditions, the Buyer shall be entitled to statutory withdrawal or mitigation rights.

b. The Supplier’s obligation to pay compensation complies with section 13 of these GTC.
c. The Supplier’s obligations specified above only arise if the Buyer notifies the Supplier immediately in writing of any claims enforced by the third party, fails to acknowledge a violation, and the Supplier reserves the right to take all defensive measures and conduct settlement negotiations. If the Buyer suspends use of the delivered goods on grounds of damage mitigation or other important grounds, it is obliged to refer the third party to the fact that the suspension of use is not associated with an acknowledgement of a violation of property rights.

  1. 11.2  The Buyer’s claims are excluded if it is responsible for the violation of property right.

  2. 11.3  Moreover, the Buyer’s claims are also excluded if the violation of property right is brought about by special requirements of the Buyer, by usage which could not be foreseen by the Supplier or by the delivered goods being altered by the Buyer or used in conjunction with products not delivered by the Supplier.

  3. 11.4  In the event of violations of property rights, the provisions of sections 10.4, 10.5 and 10.9 apply accordingly to the Buyer’s claims, as set out in section 11.1.

  4. 11.5  In the event of other legal defects, the provisions of section 10 apply accordingly.

  5. 11.6  Further claims, or claims of the Buyer other than those set out in section 11 hereof against the Supplier and its vicarious agents for a legal defect, are excluded.

12. Impossibility; Contract Amendment

  1. 12.1  If delivery is impossible, the Buyer is entitled to demand compensation, unless the Supplier is not responsible for the impossibility. However, the Buyer’s compensation claim is limited to 5% of the value of the share of delivery which cannot be placed in serviceable operation due to such impossibility. This limitation does not apply if liability is compulsory in cases of intent, gross negligence or due to injury to life, limb or health; this is not associated with a change in the burden of proof to the detriment of the Buyer. The right of the Buyer to withdraw from the contract is not affected.

  2. 12.2  Where unforeseeable events, pursuant to section 6.3, significantly alter the economic importance or the content of the delivered goods, or have a considerable impact on the operation of the Supplier, the contract shall be amended appropriately, in good faith. Where this is not economically justifiable, the Supplier is entitled to withdraw from the contract. If it intends to exercise this right of withdrawal, it shall notify the Buyer hereof immediately after becoming aware of the importance of the event and even if an extension of the delivery time has first been agreed with the Buyer.

13. Other Compensation Claims, Statute of Limitation

  1. 13.1  Compensation claims of the Buyer on any legal grounds, in particular due to breach of requirements under the contractual obligation and unlawful acts, are excluded.

  2. 13.2  This does not apply if liability is compulsory, e.g. under the Product Liability Act, in cases of intent, gross negligence, due to injury to life, limb or health or due to breach of essential contractual obligations. A compensation claim for breach of essential contractual obligations is however limited to foreseeable damage typical of the contract, unless compulsory liability arises for intent or gross negligence or due to injury to life, limb or health. The above provisions are not associated with any change in the burden of proof to the detriment of the Buyer.

  3. 13.3  If the Buyer is entitled to compensation claims, these shall become statute-barred upon expiry of the applicable statute of limitation under section 10.2. The same applies to the Buyer’s claims in relation to damage prevention measures (e.g. product recalls). The statutory limitation regulations apply in case of compensation claims under the Product Liability Act.

14. Place of Performance, Court of Jurisdiction

  1. 14.1  Unless revealed to the contrary under the contract, the place of performance is the registered office of the Supplier.

  2. 14.2  Unless there are compelling grounds for another local jurisdiction under the law, the court of jurisdiction for all legal disputes arising directly or indirectly from contractual relationships which form the basis for these GTC is Tübingen. Reutlingen District Court (72764 Reutlingen) is responsible for procedures at the district courts. However, the Supplier is entitled, at its discretion, to bring actions against the Buyer at the Buyer’s business location or branch office location, or at the responsible court for the place of performance.

15. General Provisions

  1. 15.1  In the event of any contradictions between the German and English version of these GTC, in case of doubt, the German version shall take precedence.

  2. 15.2  German law exclusively applies to any disputes under this contractual relationship and to contractual relationships between the Supplier and Buyer, in exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and conflict of laws.

  3. 15.3  Should any provision of these terms and conditions and further agreements be or become ineffective, the validity of the remaining conditions is not affected. The contractual partners are obliged to replace the ineffective provision by a regulation which comes closest to the original in terms of economic outcome. The same applies accordingly to regulatory loopholes.

General Purchasing Terms and Conditions for the PRETTL Group Status September 1, 2017

Applicable to business transactions with companies, legal entities under public law and special funds under public law.

1. Scope

  1. 1.1  Our purchasing orders shall be subject to the following purchasing terms and conditions exclusively. We will not recognize any changes or amendments to same, or any purchasing conditions by Supplier contrary to the purchasing terms and conditions hereafter unless same have been confirmed as an amendment to our purchasing terms and conditions in writing, thereby agreeing to their applicability. Acceptance of any shipments or services from the Supplier or their unconditional payment shall not be construed as any approval of the Supplier’s terms and conditions, even if same are definitely known to us.

  2. 1.2  Our Purchasing Terms and Conditions shall also be applicable to all future business transactions with the Supplier.

2. Orders

  1. 2.1  Any contracts, orders, signings and/or delivery requests, plus any changes or amendments to same shall be made in writing. Delivery requests may also be made by data telemetry or fax.

  2. 2.2  Verbal agreements after the contract signing, especially after-the-fact changes and amendments to our Purchasing Terms and Conditions - including this written form requirement – as well as any other ancillary agreements shall require our written confirmation in order to take effect.

  3. 2.3  Cost estimates shall be binding and shall not be compensated, unless otherwise agreed upon.

  4. 2.4  Supplier shall be obligated to accept our order within a 2 week deadline, and we shall be authorized to cancel such order if such acceptance is not issued on time. Delivery requests shall be binding unless the Supplier raises an objection within five business days after receipt of the request.

  5. 2.5  In the case of recurring orders or delivery schedules these orders/delivery requests authorize Supplier only to manufacture the quantities stipulated for the first 4 (four) weeks (production go-ahead) and only to order the materials required for another 4 (four) weeks (materials release). As long as no changes are made to the orders/delivery requests, the period of the production go-ahead shall be extended based on the last order/delivery request. Materials releases beyond that may only be effected after prior written approval of our corresponding specialized departments.

  6. 2.6  Unless otherwise specified in the order requirements, all delivery items shall be delivered in customary commercial quality and – in case of industrial standards and/or regulations, such as equivalent standards, shall be delivered in compliance with same and in compliance with agreed-upon test certificates.

  7. 2.7  In individual cases, order standards and drawings specified by us shall be binding, including tolerance specifications. Upon acceptance of the order, supplier shall acknowledge having obtained information on implementation type and scope of performance by studying the existing plans. We shall not be obligated in case of obvious errors, typos and math errors in the order itself or in the documents presented by us. Supplier shall be obligated to inform us of such errors so that our order may be corrected and restated. Same shall apply in case of missing documents or drawings.

  8. 2.8  The Quality Assurance Guidelines for Suppliers as well as the applicable delivery and packaging regulations of PRETTL shall be an integral part of all our orders. In case the delivery, packaging regulations are not known, Supplier shall request said information from the respective buyer/purchaser. Quality Assurance Guidelines may be downloaded from the internet under:

  9. 2.9  For products and services intended for vehicle products, the IATF 16949 in the version in force at the time of conclusion of the contract and the therein referenced international rules and standards of ISO 9001 ff are the basis of the legal relationship between the supplier and us with mutual contractual binding force.

3 Prices, Payment Terms

  1. 3.1  The price indicated in the order shall be binding. Unless otherwise agreed in writing, said price shall represent door-to-door delivery, customs fee paid (DDP pursuant to Incoterms 2010), including packaging and insurance but without sales tax, or delivery to the destination specified in the order. Otherwise, Supplier shall provide the merchandise at the time agreed upon with the freight forwarder for loading and shipping in a timely manner. In case we are invoiced for packaging based on a separate agreement in special cases, we shall be authorized to return said packaging to Supplier free of cargo charges and shall receive credit for 2/3 of the packaging value. Supplier shall be using environmentally friendly packaging materials only. In case the parties agreed on charges for packaging, said materials shall be invoiced at cost only.

  2. 3.2  Unless otherwise specified in writing, we shall pay the purchase price on the 25th day of the month following the month in which delivery took place, at 3% discount on the gross invoice amount, or in full within 90 days after receipt of the invoice, conditional upon Supplier forwarding to us all contract documents in complete and legible form (such as certificates, documentations, test reports, etc.). In case the merchandise is received after the invoice, said payment deadline shall be based on the receiving date of the merchandise. Payment shall be made subject to an audit of the invoice.

  3. 3.3  In case Supplier lowers his prices by the delivery date, such price reductions shall be applied in our favour.

4. Time of Delivery, Delivery Default

4.1 Delivery dates and deadlines specified in the order shall be binding. They commence as of the date of order. Compliance with delivery dates and deadlines shall be determined by receipt of the merchandise at our facility, or by the date of services performed. In case the delivery was not agreed upon as door-to-door delivery (DAP or DDP pursuant to Incoterms 2010), Supplier shall provide the

merchandise at the time agreed upon with the freight forwarder for loading and

shipping in a timely manner.

  1. 4.2  In case Supplier has assumed installation or assembly, Supplier shall bear all

    ancillary costs required, such as travel expenses, provision of tools, and per diems.

  2. 4.3  Supplier shall be obligated to inform our ordering department immediately, in writing, whenever circumstances of any kind occur or become evident which

    indicate that the agreed-upon delivery date cannot be maintained.

  3. 4.4  Acts of God, labour unrest, forced operations disruptions, unrest, government actions and other unavoidable events shall authorize us – regardless of our other rights – to rescind from the contract, in full or parts thereof, if said events are of

    not insignificant duration.

  4. 4.5  We shall not be obligated to accept any delivery prior to its delivery date. In this

    case, we shall reserve the right to return the shipped goods at Supplier’s expense. In case such early delivery is not returned, the shipped goods shall be stored at our facility until the agreed-upon delivery date, at Supplier’s risk and expense. Payment will be made according to sec. 3.2, calculated from the agreed-upon delivery date.

  5. 4.6  In case delivery by Supplier is in default, we shall be authorized to demand a flat- rate default penalty in the amount of 0.8% of the order value per working day, not exceeding 10% of the order value. Additional statutory claims (especially for cancellation or damages due to non-compliance) shall be reserved.

  6. 4.7  The unconditional acceptance of the delayed shipment or service shall not be construed as any waiver of damage claims due to the delayed shipment or service; said claims shall remain in existence until payment in full for the remuneration owed by us for the respective delivery or service has been made.

  7. 4.8  Partial deliveries shall not be permitted in principle, unless expressly agreed to by us in writing, or as reasonable to us.

  8. 4.9  Unless otherwise proven, item numbers, weights and dimensions shall be those determined by us during the merchandise receiving check. We shall accept only those amounts and numbers of items ordered by us. Deliveries above or below such specifications shall be permitted only upon prior agreement with us in writing.

  9. 4.10  We shall be authorized to use any software as part of the product scope of delivery, including its documentation, to the permissible statutory extent (§§ 69a ff. UrhG [German Copyright Act]) with the agreed-upon performance specifications and to the extent required for the contractual application of the product. We shall be authorized to create a backup copy without any express agreement.

  10. 4.11  Supplier shall package the merchandise in suitable form.

  11. 4.12  We shall work under the assumption that Supplier, as the marketing agent of

    merchandise, has comprehensive knowledge of possible risks for his merchandise upon shipment, packaging, storage, etc. Prior to acceptance of an order, Supplier shall ascertain which of the merchandise ordered, or components thereof, must be classified as hazardous goods (such as paints, adhesives, chemicals or ignitable, oxidizing, combustible, flammable, poisonous, radioactive, corrosive, or self ignitable goods). In any such cases, Supplier shall inform us immediately.

5 Transfer of Risk

Risk shall transfer to us at the time of acceptance by us or one of our representatives, at the location where delivery is to take place or services are to be rendered by contract. Sec. 4.5 remains unaffected.

6 Notice of Shipment and Invoice

Information provided in our orders and delivery requests shall apply. The invoice shall be forwarded as single copy to the imprinted address, stating the invoice number and other identification features. Said invoice shall not be included in the shipment.

7 Inspection for Defects, Warranty

  1. 7.1  We shall not be obligated to inspect the merchandise upon receipt. We shall attempt to inspect the merchandise for defects, especially accuracy, completeness and suitability by way of sampling during the proper course of business. Applicability of § 377 HGB [German Commercial Code] shall be excluded if permissible. Any complaint within 30 days after discovery of any fault or other deficiencies shall be deemed as being timely. Supplier shall waive any objection due to late deficiency claims.

  2. 7.2  Statutory warranty claims shall be available to us in full unless otherwise stipulated in the following. Regardless of said right, we shall be entitled to demand from Supplier our choice between remedy of defects or substitute delivery. Any expenditures incurred with said remedy of defects or substitute delivery shall be borne by Supplier. The right to damage claims shall be reserved.

  3. 7.3  In the event that the supplier does not commence rectifying the defect immediately after our request to remedy it, in urgent cases, especially to ward off acute danger or to prevent greater damage, we are entitled to undertake such rectification ourselves or to have it undertaken by a third party at the expense of the Supplier.

  4. 7.4  The warranty period for merchandise which is intended for installation into a motor vehicle, vessel or rail vehicle, shall be 48 months after the date of first registration of a vehicle in which the merchandise is incorporated, but no later than 60 months starting with the transfer of risk. The warranty period for other merchandise or services shall be 36 months starting with the transfer of risk, unless the applicable statutory minimum warranty period is longer or the merchandise or service has been used for a building, in compliance with its customary use, and has caused the defectiveness thereof.

  5. 7.5  In cases of deficiencies in title, Supplier shall indemnify us from any claims by third parties. Deficiencies in title shall be subject to a 10-year statute of limitation. We shall be authorized to initiate the permit for use of the respective delivery items and services from beneficiary using due diligence of a proper business, at Supplier’ s expense.

  6. 7.6  Supplier shall guarantee and ascertain that all shipments are not encumbered by any industrial property rights of third parties, and that delivery and use of the shipped goods do not violate any patents, licenses or other industrial property rights of third parties within Germany. Inasmuch as Supplier is aware that his products are marketed by PRETTL in other countries as well, the above shall apply to said countries equally.

  7. 7.7  For any part of the shipment restored or repaired within the statute of limitation for defect claims or in case of the supply of a substitute product within the Supplier’s obligation to effect supplementary performance, the statute of limitation shall start to run anew at the time when the Supplier has fully complied with our claims for supplementary performance.

  8. 7.8  Supplier shall bear all costs incurred by us as a result of the defective shipment of the contract merchandise, especially costs for transportation, travel, labour, materials, incoming goods or sorting costs checks beyond the customary measure. We are entitled to perform a sampling check, and without prejudice to any claim, to return all the goods if the acceptable quality level, or AQL, has not been met or to carry out one hundred percent check at the Supplier’s costs and risk, and claim compensation for faulty goods.

  9. 7.9  In case we take back any products manufactured and/or sold by us as a result of the deficiencies of contract merchandise provided by Supplier, or if our sales price was reduced because of said deficiencies, or other claims have been raised against us because of said deficiencies, we shall reserve the right to recourse against Supplier. Said recourse shall not be subject to any separate deadline.

  10. 7.10  We shall be entitled to demand reimbursement from Supplier of any expenditures incurred by us in our customer relation as a result of any claims for damage filed against us for purposes of post-fulfilment, especially costs for transportation, travel, labour, materials and sorting costs.

  11. 7.11  Regardless of the regulations in sec. 7.4, the statute of limitation in cases of sec. 7.9 and 7.10 shall expire at the time when we have satisfied the claims filed against us by our customer, at the earliest, but five years after delivery by Supplier at the latest unless the applicable statutory minimum warranty period lasts longer.

  12. 7.12  In case a material defect is discovered within six months after transfer of risk, the assumption shall be that said defect did already exist at the time of transfer of risk unless said assumption is inconsistent with the type of merchandise or defect.

  13. 8. Product Liability, Release

    In case we are subjected to any claims resulting from any violation of government safety rules or due to domestic or foreign product liability regulations or law due to product deficiencies traceable to Supplier’s merchandise, we shall be entitled to demand compensation from Supplier inasmuch as these damages have been caused by products

    all damages caused by him, his legal representative or agent through negligence or intent.

    12. Offsetting Charges

    Our right to offsetting charges or enacting withholding rights shall not be restricted. Supplier shall be entitled to any offsetting charges through counter demands only and inasmuch as these are not disputed or have taken effect legally.

    13. Documents and Confidentiality

  14. 13.1  Any business or technical information provided by us (including any features obtainable from forwarded items, documents or software) shall be kept strictly confidential toward third parties as long and inasmuch said information is proven to not be known publicly, and said information shall be provided at Supplier’s plant only to those persons who necessarily must be consulted on the use of said information for purposes of delivery to us. Said persons shall be obligated to maintaining confidentiality as well. Said information shall remain our exclusive property. Without our prior written consent, such information or any products manufactured or characterized by such information, production means, brands, and appearance shall not be copied or utilized in any value-enhancing way, or subsequently supplied to any third parties, except for deliveries to us. Upon our request, all information originating from us (including any copies or recordings made, if any) and any loaned items shall be returned to us immediately, or shall be destroyed immediately. We shall reserve all rights to such information (including any copyrights and the right to file industrial property rights, such as patents, utility models, semi-conductor protection, etc.) Such legal reservation shall be applicable in favour of third parties in case such information has been provided by third parties.

  15. 13.2  Any products manufactured pursuant to documents designed by us, such as drawings, models, and alike, or which have be manufactured pursuant to confidential information designed by us, or manufactured with our tools or reverse engineering tools, shall not be used by Supplier himself, and shall not be forwarded or delivered to third parties by Supplier. The above shall equally apply to any printing orders.

  16. 14. Implementation of Work

  17. 14.1  All personnel implementing work in our plant facilities as part of contract fulfilment shall comply with all regulations of the applicable operations rules. Any liability for accidents incurred by such personnel in our plant facilities shall be excluded unless caused by intentional or grossly negligent violation of duty by our legal representatives or agents.

  18. 14.2  Any supplier rendering services or performances in our plant facilities as part of a contract with us shall ascertain that his legal representatives, agents and other employees are provided with sufficient insurance coverage against occupational accidents.

  19. 15. Place of Fulfilment, Jurisdiction

  20. 15.1  Unless otherwise specified in the contract, the place of fulfilment shall be the venue where the merchandise is to be delivered by contract.

  21. 15.2  The jurisdiction for any legal disputes arising either directly or indirectly out of contractual relationships based on these Purchasing Terms and Conditions shall be Tübingen. The Local Court of Reutlingen (Amtsgericht Reutlingen, 72764 Reutlingen) has jurisdiction and venue over cases brought before the Local Court. We however have the right to take legal action against the Supplier at a court with jurisdiction over the registered office or branch office of the Supplier or at the court with jurisdiction over the place of performance at our discretion.

  22. 16. Export Control, REACH

  23. 16.1  The supplier shall be obliged to inform us about any applicable export licence requirements for the merchandise under German, European or US export control law and customs regulation as well as the export control law and customs regulations of the country of origin of the merchandise in his offers, order confirmations, invoices and other business documents and shall name a contact person in his organisation to provide further information upon request.

  24. 16.2  Supplier is obliged to take care of the European Regulation (EC) No 1907/2006. He guarantees, that the merchandise is registered with regard to the use of said merchandise (which is known to him) is registered properly in accordance with said Regulation. He will fulfil his obligation – e.g. preparation and issuance of a safety data sheet – without delay.

  25. 17. General Regulations

  26. 17.1  The German version of these General Terms and Conditions shall take precedence over the English version in any disputes.

  27. 17.2  In case of any disputes arising from this contract and contractual relations with us, German law shall apply exclusively while excluding the UN Convention on Contracts for the International Sales of Goods (CISG) and the conflict of law provisions.

  28. delivered by him. These damages also include the costs of a necessary recall Inasmuch as a defect occurs in a part delivered by Supplier, the assumption shall the defect has occurred within the realm of responsibility of Supplier exclusively.

    9. Retention of Title, Provision

    action. be that

  29. 9.1  Inasmuch as we provide parts to Supplier, we shall retain title to such parts. Said parts shall be used for their intended purpose only. Any processing or reshaping by Supplier shall be performed on our behalf. In case of processing or admixture of our retained merchandise with other materials not in our possession, we shall acquire co-ownership in the new merchandise pro-rated by the value of our materials (purchase price plus VAT) relative to the value of the other processed materials at the time of processing.

  30. 9.2  In case the matter provided by us is inseparably interspersed with others not in our possession, we shall acquire co-ownership in the new matter pro-rated by the value of the retained matter (purchase price plus VAT) relative to the value of the other admixed materials at the time of admixture. In case the admixture takes place such that the matter of Supplier shall be regarded as the main component, the agreement shall be that Supplier assigns co-ownership to us and Supplier shall be the guardian of sole or co-ownership on our behalf.

  31. 10. Rights of Withdrawal and Termination

    10.1 In addition to the statutory rights of rescission we have the right to withdraw from or terminate the contract with immediate effect if
    - the supplier has stopped supplying its customers,
    - the supplier breaches a duty under the delivery

    this within a reasonable time period that may not
    the breach of duty;
    - there is or threatens to be a fundamental deterioration to the financial circumstances of the supplier and as a result of this the performance of a supply obligation to us is in jeopardy,
    - the supplier meets the criteria for insolvency or over-indebtedness, or
    - the supplier stops making its payments.

  32. 10.2  We also have the right to withdraw from or terminate the contract if the supplier files an application for insolvency or comparable debt settlement proceedings to be initiated with respect to its assets.

  33. 10.3  If the supplier rendered part performance, we only have the right to cancel the whole contract if we have no interest in the part performance.

  34. 10.4  If we withdraw from or terminate the contract by virtue of the foregoing contractual rescission rights or respective termination rights, then the supplier must compensate us for the loss or damage incurred as a result, unless the supplier was not responsible for the rights arising to withdraw from or terminate the contract.

  35. 10.5  Statutory rights and claims shall not be limited by the regulations included in this Section 10.

  36. 11. Liability

    We shall not be liable for any damages caused by us, our legal representatives or agents through simple negligence. This shall be applicable without regard of the legal aspects of the claim raised, especially due to default, other obligation violations or non- permitted actions. This liability restriction shall not be applicable to any damages resulting from injuries to life, body or health, as well as any violation of significant contract obligations. In case of any violation of non-significant contract obligations, we shall be liable for any material damages only inasmuch and in the amount customarily foreseeable upon its occurrence at the time of contract signing. Seller shall be liable for

  37. 17.3  If one of the provisions of these Terms and Conditions and of additional agreements reached should be or become ineffective, this shall not affect the validity of the Terms and Conditions in other respects. The parties hereto are obliged to agree upon a provision to replace the ineffective provision by one which comes closest in its economic intent to the ineffective one. The same shall apply in case of a loophole.

F-PU-015 Supplier Quality Contract