1. GENERAL – SCOPE

1.1.
These General Terms and Conditions of Purchase (hereinafter referred to as Terms and Conditions of Purchase) shall apply to the contractual relationship between every company of the GPE Group, including Multicon GmbH & Co.KG, based in Seebach (hereinafter referred to as MC/GPE), and the supplier with respect to the purchase, creation and delivery of all movable goods, including the associated documents such as drawings, technical terms and conditions of delivery, design specifications, material instructions, relevant accident prevention regulations as well as for work and services.

1.2.
These Terms and Conditions of Purchase shall apply exclusively. They shall also apply in addition to special terms and conditions agreed by the parties in individual cases. Contradictory, supplementary or deviating terms and conditions of the contractor shall only become part of the contract if MC/GPE expressly accepts them in writing. This also applies to terms and conditions stated in order confirmations or other confirmations issued by the contractor. The unreserved receipt of deliveries/services or their payment by MC/GPE does not constitute acceptance of the contractor’s terms and conditions. MC/GPE’s Terms and Conditions of Purchase also apply if the contract with the supplier is executed without objection in the knowledge of conflicting, supplementary or deviating terms and conditions on the part of MC/GPE. Upon effecting the first delivery under these Terms and Conditions of Purchase, the supplier acknowledges their exclusive validity, including for subsequent orders.

1.3.
The preparation of quotations is free of charge and non-binding for MC/GPE. The supplier is bound to their quotation for a period of 2 months; orders and release order schedules from MC/GPE must be submitted in writing to be binding. The orders and release order schedules must be confirmed in writing by the supplier within 2 (two) working days. They shall be deemed to have been accepted by the supplier if no written objection is received within 2 (two) working days after receipt. Irrespective of the aforementioned, MC/GPE reserves the right to withdraw the order if confirmation is not received within 14 days.

1.4.
These Terms and Conditions of Purchase shall also apply to future transactions between the parties arising from ongoing business relationships. They only apply to individual contractors, companies, legal entities under public law or a special fund under public law.

2. SCOPE OF DELIVERY AND PERFORMANCE BY THE SUPPLIER

3. INVOLVEMENT OF SUBCONTRACTORS

4. PROVISION OF MATERIALS

4.1.
Documents or production resources of any kind such as samples, drawings, models, tools, specifications of a technical nature etc. that MC/GPE makes available to the supplier or that MC/GPE pays the supplier for may only be used for the purposes of supplying MC/GPE. Furthermore, the copyright to MC/GPE documents that have been provided to the supplier remains with MC/GPE. Use of such documents for purposes other than fulfilment of contractual obligations is not permitted without the express written consent of MC/GPE. In the event of violations of the aforementioned, the supplier is liable for any and all damages.

4.2.
The documents referred to in section 4.1. above, as well as the goods manufactured according to or on the basis of them, must be returned in perfect condition as soon as the order has been completed or as soon as it is clear that no order will be placed. Individual items and copies may not be retained. At the request of MC/GPE, the supplier must return to MC/GPE or destroy documents or production equipment paid for by MC/GPE and, if necessary, provide us with evidence of this.

4.3.
In the case of processing or mixing of the parts delivered by us, MC/GPE acquires co-ownership of the new object in proportion to the value of the parts and materials supplied by MC/GPE to the processed objects at the time of processing.

5. PLACE OF PERFORMANCE

The place of performance for the fulfilment of contractual obligations is the place of receipt we designate; in the absence of such a location, the place of performance is the registered office of MC/GPE.

6. PROCUREMENT OF OWNERSHIP

6.1.
The supplier is obliged to fully transfer the goods and results of work to be delivered to MC/GPE and to provide MC/GPE with unconditional ownership thereof.

6.2.
The contracting parties irrevocably agree that ownership of the goods to be transferred shall pass to MC/GPE upon payment. In cases where MC/GPE renders the agreed payment before receipt of the goods, the delivery due at the time of payment will be replaced as follows: If the supplier is already in possession of the goods or obtains them later, the goods will be made available to MC/GPE and stored for MC/GPE in a safe and proper manner. If the supplier is only in possession of the necessary primary materials or obtains them later, the above applies accordingly. If a third party remains in possession of the goods or the primary materials required for them, the transfer from the supplier to MC/GPE shall be replaced by the supplier assigning to MC/GPE its claim to handover of the goods from the owner, effective at the time of payment. MC/GPE hereby accepts this assignment.

6.3.
If MC/GPE has not rendered full payment but only a partial payment prior to the transfer of the goods, the aforementioned applies subject to the condition that MC/GPE then only acquires a share of co-ownership of the goods or their primary materials. The amount of the co-ownership share is determined by the ratio of the value of the partial payment to the agreed price of the goods.

7. TIME OF PERFORMANCE – DELAYED DELIVERY

7.1.
Agreed delivery dates and periods are binding. The goods or services ordered must be delivered to the specified place of receipt on the specified date, unless the supplier proves that it cannot be held responsible for the fact that it cannot adhere to the delivery date. MC/GPE must be immediately notified of impending delays in delivery. To this end, the supplier must state the reasons for the delay in delivery and inform MC/GPE of the new delivery date. The supplier can only use the absence of necessary documents to be supplied by MC/GPE as grounds for a delay in delivery if the supplier has sent a written reminder and has not received the documents within a reasonable period of time.

7.2.
If the supplier’s delivery is delayed, MC/GPE may set a reasonable extension period. After expiry of the extension period, MC/GPE is authorised to assert its legal rights, in particular to claim damages for non-performance and to withdraw from the contract.

7.3.
In the event that the supplier fails to fulfil its contractual obligations by the agreed deadline, MC/GPE can charge the supplier a lump-sum contractual penalty amounting to 0.5% of the total payment for each calendar week or part thereof that the delivery is delayed, but not exceeding 10% of the total payment. In the event that a delivery by the supplier is delayed, the contractual penalty is immediately due and payable and can be claimed in addition to MC/GPE’s claims to fulfilment of the supplier’s contractual obligation. If MC/GPE accepts the delayed delivery, MC/GPE is only entitled to the contractual penalty if MC/GPE expressly reserves this right no later than upon rendering the final payment. The assertion of further or other damages is under no circumstances excluded.

7.4.
Force majeure shall release the contracting parties from the obligation to perform for the duration of the hindrance and to the extent of their involvement. The contracting parties are obliged to provide the necessary information immediately within the scope of what is reasonable and to adapt their obligations to the modified circumstances in good faith. MC/GPE is wholly or partially released from its obligation to accept the ordered delivery/service and to this extent entitled to withdraw from the contract if the delivery/service is, upon taking financial aspects into account, no longer usable by MC/GPE due to the delay caused by the force majeure.

7.5.
Partial deliveries will only be accepted by MC/GPE if expressly agreed. In the case of agreed partial deliveries, the remaining quantity to be delivered must be indicated.

8. DELIVERY AND TRANSFER OF RISK

8.1.
The supplier is obliged to transfer the contractually compliant goods to MC/GPE at the agreed place of delivery, properly packaged. If the packaging and shipping instructions specified by MC/GPE are not observed, MC/GPE may refuse to accept the goods. With respect to quantities, weights and dimensions, the values determined by MC/GPE during its incoming goods inspection will be deemed correct unless the supplier can prove otherwise.

8.2.
If delivery is effected earlier than contractually agreed, MC/GPE reserves the right to return the goods to the supplier at the supplier’s expense. If, in the event of premature delivery, MC/GPE does not return the goods, they will be stored at MC/GPE’s place of business at the supplier’s expense and risk until the agreed delivery date. In the event of premature delivery, MC/GPE reserves the right to only render payment on the agreed due date.

8.3.
The risk of accidental loss and accidental deterioration is transferred to MC/GPE upon receipt; the supplier must therefore insure the goods against transport damage at its own expense.

9. INVESTIGATION OF DEFECTS/COMMERCIAL TRANSACTION

9.1.
MC/GPE will inspect goods and work performed within a reasonable period of time for deviations in quality or quantity, provided that section 377 of the German Commercial Code applies. In the case of obvious defects or obvious deviations in quantity, the notification thereof is always deemed to have been submitted in a timely manner if it is received by the supplier within 10 working days of receipt. In the case of hidden defects, the notification of defects will be deemed timely if it is received by the contractor within 10 days of the discovery of the defect. As such, the supplier waives its right to object to a delayed notification of defects.

9.2.
MC/GPE is only obliged to notify the supplier of defects in the event of a partial delivery if this has been expressly agreed with the supplier. The above section (1) shall apply with regard to the timeliness of the notification of defects.

10. Warranty/compensation

10.1.
MC/GPE is fully entitled to all statutory warranty rights (claims for defects). The supplier must comply with the technical and legal provisions applicable to the use or processing of the object purchased at the time of the order.

10.2.
MC/GPE is authorised, at its own discretion, to remedy a defect without first requesting that the supplier remedy the defect and to claim compensation for the expenses associated with such remedy in the event of imminent danger or if an immediate remedy would prevent the occurrence of considerable damage. In this case, MC/GPE will inform the supplier immediately.

10.3.
The warranty period for goods is two years from delivery or acceptance, if such a warranty period applies. Longer statutory and other applicable limitation periods remain hereby unaffected. In the case of defects of title, the limitation period shall be 3 years from their discovery, but no longer than 10 years.

10.4.
If the supplier or a third party has issued a warranty statement (i.e. a guarantee of quality or durability), MC/GPE’s claims arising from a warranty remain fully valid.

10.5.
If a claim is made against MC/GPE due to a violation of official safety regulations or due to domestic or foreign product liability regulations or laws resulting from a product defect that can be traced back to the supplier’s goods, MC/GPE is entitled to demand compensation for such damage from the supplier to the extent that it was caused by the products delivered by the supplier. This damage also includes the costs of a necessary recall campaign. If a defect occurs in a part delivered by the supplier, it is assumed that the defect occurred exclusively within the supplier’s sphere of responsibility.

10.6.
The supplier must perform quality assurance of a nature and scope that is suitable and corresponds to the latest state of the art and must provide MC/GPE with proof of these activities upon request. The supplier shall enter into a corresponding quality assurance agreement with MC/GPE if MC/GPE deems this necessary.

10.7.
The supplier guarantees that it holds an appropriate product liability insurance policy. This policy must also cover the risks associated with a recall campaign that may become necessary.

11. PRICE AND PAYMENT

11.1.
All prices, in particular the prices stated in MC/GPE’s orders, are fixed prices including delivery to the place of receipt specified by MC/GPE and including all ancillary costs incurred. Any and all additional fees are excluded, unless expressly agreed otherwise in writing. Reserving the right to increase prices requires MC/GPE’s express written consent.

11.2.
Invoices must be provided in duplicate with the MC/GPE order and article number as well as the delivery note number of the MC/GPE supplier and must indicate the exact designation and quantity of the delivered goods as well as the price per unit or quantity. They must be sent to the address specified in the order. If the parties have agreed that the supplier must provide material testing certificates, these form an integral part of the delivery and must be sent to MC/GPE together with the delivery. The payment period shall not commence before receipt of the agreed certificate.

11.3.
Payments shall be effected after receipt of the proper invoices and the receipt of all ordered goods, provided they are free of defects or unless otherwise expressly agreed. Payment periods begin on this date. Payments do not constitute an acknowledgement or approval of prices, terms, or contractual conformity of the goods delivered. Payment may be withheld to a reasonable extent until the contract has been fully and properly executed. Invoices are generally paid 30 days after delivery and receipt of the invoice with a 2% discount from the gross invoice amount or after 30 days in full. Discount periods begin upon receipt of a valid invoice. If payment due dates fall on a Saturday, Sunday or a public holiday, the following working day shall be deemed the payment due date. In the case of agreed advance payments by MC/GPE, the supplier must provide appropriate security in the form of a bank guarantee from an accredited major German bank.

11.4.
The supplier is only permitted to assign to third parties claims against MC/GPE arising from the contractual relationship with MC/GPE with MC/GPE’s prior written consent. Section 354a of the German Commercial Code (HGB) remains hereby unaffected. The supplier is only entitled to offset claims against MC/GPE if the claims being asserted are undisputed or have been deemed valid by a court of law.

12. INDUSTRIAL RIGHTS

12.1.
By accepting the order, the supplier agrees to indemnify and hold harmless MC/GPE from legal claims by third parties with regard to the goods to be delivered. This obligation to indemnify and hold harmless extends to all necessary expenses incurred by MC/GPE from and/or in connection with the claim. This obligation to indemnify and hold harmless is subject to a limitation period of 10 years, calculated from the date of contract conclusion.

12.2.
MC/GPE reserves the right to verify, in justified exceptional cases and at the expense of the supplier in due consideration of the diligence of a prudent businessman, the latter’s actual authorisation to manufacture and distribute the goods and services in question or require the supplier to present the requisite permits for the manufacture or use of the goods and services.

12.3.
MC/GPE will handle personal data concerning the supplier in relation to the order in accordance with the respective currently applicable legal provisions, in particular with Germany’s Federal Data Protection Act. The supplier hereby grants its revocable consent to such processing.

13. GOVERNING LAW, JURISDICTION, MISCELLANEOUS

13.1.
These terms shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany. The validity and application of the United Nations Convention on Contracts for the International Sale of Goods is excluded to the extent permitted by law. This also applies to other international law.

13.2.
The courts at the location of MC/GPE’s registered headquarters shall have exclusive jurisdiction over any claims and legal disputes arising from the contractual relationship, including special court procedures deciding claims arising out of a bill of exchange or based solely on documentary evidence. However, MC/GPE is also entitled to file suit with any other competent court.

13.3.
The place of performance with respect to payments is the location of the registered headquarters of the respective company of the GPE Group.

13.4.
Contractual liens granted to the supplier must be agreed by the parties in writing.

13.5.
Should one or more provisions of these Terms and Conditions of Purchase be or become invalid in whole or in part, it shall not affect the validity of the remaining provisions. The contracting parties undertake to replace the invalid provision with a permissible provision that comes as close as possible to the business intent and purpose of the invalid provision. The same applies to any contractual gaps.