General Terms and Conditions of Purchase, Uzin Utz SE

Dated: 16/10/2024

1. Scope; general

1. Our General Terms and Conditions of Purchase apply to all our orders, but only to suppliers who are entrepreneurs (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a public-law special fund. Entrepreneurs within the meaning of these Terms and Conditions are natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity.
2. Our General Terms and Conditions of Purchase apply in particular to contracts for the sale and/or delivery of movable goods (“goods”), regardless of whether the supplier manufactures the goods itself or purchases them from suppliers (Sections 433 & 650 BGB). Unless otherwise agreed, the General Terms and Conditions of Purchase valid at the time of the buyer's order, or at least in the version last communicated to the buyer in text form, shall apply as framework agreement for similar future contracts, without us needing to refer to them again in each individual case.
3. Our General Terms and Conditions of Purchase apply exclusively. We do not recognise any conflicting or deviating conditions of the supplier, unless we have expressly agreed in writing that they shall apply. Our Terms and Conditions of Purchase shall also apply if we unconditionally accept the supplier's delivery in knowledge of opposing or deviating terms and conditions.
4. If individual agreements are made with the supplier in individual cases (including side agreements, supplements and amendments), they shall take precedence over these General Terms and Conditions of Purchase in any case.
5. Legal declarations and notifications from the supplier regarding the contract (e.g. setting deadlines, reminders and withdrawal) must be submitted in writing, i.e. in written or text form (e.g. letter, email or fax). Statutory formal requirements and further evidence, particularly in cases of doubt regarding the legitimacy of the person making the declaration, remain unaffected.
6. References to the validity of statutory provisions are only for the purpose of clarity. Even in the absence of such clarification, the statutory provisions shall apply, unless they are directly amended or expressly excluded in these General Terms and Conditions of Purchase.

2. Conclusion of contract; acceptance of orders

1. Our order shall only be binding on written submission or confirmation at the earliest. The supplier must inform us of any obvious errors (e.g. typographical errors or calculation errors) and omissions in the order, including in the order documents, for the purpose of correcting them or adding missing details before acceptance; otherwise, the contract shall be considered not to have been concluded.
2. Unless otherwise stated in the order, the supplier must accept or confirm our order in writing within a period of one week or must perform the order unconditionally, specifically by dispatching the goods.
3. Any late acceptance shall be deemed to be a new offer and shall require acceptance by us.

3. Content of the contract

1. The content of the contract is defined exclusively by the information in our order, unless otherwise agreed.
2. Deviations from our order must be proposed to us by the supplier in writing, if necessary, with an express reference to the desired change. Unless otherwise agreed in individual cases, such deviations shall only become part of the contract if and to the extent that they have been accepted by us in writing as such.

4. Payment

1. The price stated in the order is binding. Unless otherwise agreed in individual cases, the price includes delivery and transport, including packaging (delivery free of charge). The return of packaging requires a separate agreement. Unless otherwise agreed, the prices include statutory value added tax.
2. Unless there is a special agreement with the supplier, the purchase price shall be payable within 14 calendar days at a 3% discount or within 30 calendar days of receipt of the invoice net, calculated from the delivery and receipt of the invoice. For a bank transfer, it is sufficient for payments owed by us to be on time that our transfer order is received by our bank before the expiry of the payment deadline; we are not responsible for delays caused by the banks involved in the payment process.
3. We do not owe any default interest (Section 353 of the German Commercial Code (HGB)). The statutory provisions shall apply to late payment.
4. We can only process invoices if they contain the specified details as per the requirements in our order, in particular the order number; the supplier is responsible for any consequences arising from failure to comply with this obligation, unless they can demonstrate that they are not at fault.
5. We shall be entitled to set-off and retention rights, as well as the defence of lock of performance of the contract, to the extent provided for by law. In particular, we shall be entitled to withhold payments that are due while we still have claims against the supplier for incomplete or defective performance.
6. The supplier shall have a right of set-off or retention only on the basis of legally established or undisputed counterclaims.

5. Delivery time

1. The agreed delivery time shall be binding. If the delivery time is not specified in the order and has not been otherwise agreed, it shall be one week from conclusion of the contract. Early deliveries are only allowed by prior agreement.
2. The supplier must inform us immediately in writing if circumstances arise or become apparent to the supplier that indicate that the agreed delivery time cannot be complied with – for whatever reasons. Late delivery occurring remains unaffected hereby.
3. In the event of late delivery, we shall be entitled to the statutory rights. In particular, we shall be entitled to demand compensation for loss or damage in lieu of performance and/or to withdraw from the contract after the expiry of a reasonable period without success. The provisions of para. 4 remain unaffected.
4. If the seller is in default, in addition to further statutory claims we may demand flat-rate compensation for our loss arising from default of 1% of the net price per completed calendar week, but not exceeding a total of 5% of the net price of the goods that are delivered late.

6. Performance; transfer of risk; delay in acceptance

1. The supplier is not authorised to have the performance owed by the supplier provided by third parties (e.g. subcontractors), without our prior written consent. Partial deliveries shall only be permitted after prior agreement.
2. The seller shall bear the procurement risk for its performance, unless otherwise agreed in individual cases (e.g. limitation to stock).
3. Delivery shall be free of charge to the location specified in the order, unless otherwise agreed in writing. If the destination is not specified and it has not been otherwise agreed, the delivery must be made to the branch (Ulm). The destination in each case is also the place of performance for the delivery and any subsequent performance (obligation to be performed at buyer's location).
4. The supplier must note on all shipping documents and delivery notes the information required by us for processing, in particular the date (of issue and of shipping), content of the delivery (article number and quantity), as well as our order number; if the supplier fails to do so, we shall not be responsible for delays in processing – in particular with regard to the payment process.
5. The risk of accidental loss and accidental deterioration of the item shall transfer to us on handover at the place of performance. If acceptance is agreed, the transfer of risk shall be on acceptance. Otherwise, the statutory provisions of the law on contracts to produce a work shall apply to any acceptance.
6. The statutory provisions shall apply with regard to when delay in acceptance by us shall arise. The seller must expressly offer us their performance, even if a specific or determinable calendar date has been agreed for an action or cooperation on our part (e.g. provision of material by us).
7. If we are in default of acceptance, the seller may claim reimbursement of its extra expenses, as per the statutory provisions (Section 304 BGB). If the contract is for non-fungible goods to be manufactured by the seller (custom-made), the seller shall be entitled to further rights only if we have undertaken to cooperate and are responsible for the lack of cooperation.

7. Quality; warranty

1. The statutory provisions shall apply to our rights in relation to material defects and defects of title of the goods (including operating instructions) and other breaches of obligation, unless specified otherwise below.
2. Under the statutory provisions, the seller is liable in particular for ensuring that the goods have the agreed quality at the time the risk transfers to us. As agreement on quality, any specification agreements and such product descriptions that are the subject of the applicable contract – particularly by description or reference in our order – are also incorporated in the contract in the same way as these General Terms and Conditions of Purchase. It shall make no difference whether the product description is from us, the supplier or the manufacturer. Any subsequent changes shall only become part of the contract if and to the extent that the supplier has notified us in good time, explicitly and in writing of the change it has proposed and we have confirmed the change in writing.
3. For goods with digital elements or other digital content, the seller must provide and update the digital content to the extent that this arises from a quality agreement pursuant to para. 2 or other product descriptions from the manufacturer or on its behalf, particularly on the internet, in advertising or on the product label.
4. In the event that there is a repeated order of the same goods from the supplier, the supplier must inform us promptly and in writing of any changes made to the materials, processes, specifications or product characteristics that are being used compared to the initial order. Any delivery of the modified goods is dependent on our prior written consent.
5. We are not obliged to inspect the goods or make special inquiries about any defects at the time of conclusion of contract. In partial deviation from Section 442(1) sentence 2 of the German Civil Code (BGB), we therefore have unrestricted claims under warranty, even if we had no knowledge of the defect at the time of the conclusion of the contract due to gross negligence.
6. For the commercial duty to inspect and give notice of defect, the statutory provisions apply (Sections 377 & 381 of the German Commercial Code (HGB)), subject to the following: Our obligation to inspect is limited to defects that become apparent during our incoming goods inspection from external examination, including of the delivery documents (e.g. transport damage, incorrect deliveries and short deliveries), or that can be identified during quality control by us from sampling. Where acceptance is agreed, there shall be no obligation to inspect. Otherwise, the extent to which any investigation is feasible in the ordinary course of business, taking into account the circumstances of the individual case, shall be the relevant criterion. Our obligation to give notice of defects discovered at a later date remains unaffected. Notwithstanding our obligation to investigate, notice by us (notice of defect) shall be considered to be immediate and therefore in good time if it is sent within three working days of discovery or, for obvious defects, from delivery.
7. If the supplier does not meet its obligation to provide subsequent performance – at our discretion, by remedying the defect (repair) or by delivering a non-defective item (replacement delivery) – within the period that we set, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment. A deadline for this is not required – except for the cases under Section 323(2) BGB, even if the subsequent performance has failed or is unreasonable for us.
8. Otherwise, we shall be entitled to reduce the purchase price or to withdraw from the contract in the event of a material defect or defect of title, in accordance with the statutory provisions. We shall also have the right to compensation for damage/loss and expenses in accordance with the statutory provisions.

8. Supplier recourse

1. We shall be entitled to our legally established claims under recourse within a supply chain (supplier recourse according to Sections 478, 445a and 445b of the German Civil Code (BGB)) in addition to the claims for defects, without restriction. We shall in particular be entitled to demand the specific type of subsequent performance (remedy or replacement delivery) from the seller that we owe to our buyer in each individual case; this also applies to goods with digital elements or other digital content in terms of providing necessary updates. Our statutory choice (Section 439(1) of the German Civil Code (BGB)) is not hereby restricted.
2. Before we acknowledge or fulfil a claim for defect asserted by our purchaser (including reimbursement of expenses according to Sections 445a(1) & 439(2) and (3) of the German Civil Code (BGB)), we shall notify the seller and request a written statement, briefly presenting the facts of the case. If a substantiated statement is not provided within a reasonable timeframe and no mutual solution is achieved, the claim for defect that we have actually granted shall be deemed owed to our customer. In this case, the seller must provide evidence to the contrary.
3. Our claims under supplier recourse shall also apply if the defective goods have been connected to another product or further processed in any other way by us or another business, e.g. by integration, fitting or installation.

9. Product liability

1. Where the supplier is responsible for product damage, it must indemnify us, on first request, against claims for compensation from third parties, to the extent that the cause is within its control and organisation and it is liable to third parties.
2. The supplier must reimburse the expenses in such a case in accordance with Sections 683 & 670 of the German Civil Code (BGB) that arise from or in connection with a recall campaign that we run. We shall inform the supplier of the content and scope of recall measures – as far as possible and reasonable – and give the supplier the opportunity to respond. Otherwise, further statutory claims remain unaffected.
3. The supplier must take out and maintain product liability insurance with flat-rate cover of €10 million per injury/damage event; if we have any further claims for damages, they shall remain unaffected.

10. Intellectual property rights

1. The supplier guarantees that no third-party property rights are infringed in the countries of the European Union or other countries where it manufactures or has the products manufactured in connection with its delivery.
2. If a claim is brought against us by a third party for an infringement of industrial property rights, the supplier must indemnify us on first written request against such claims; we are not entitled to enter into any agreements with the third party – without the supplier's consent – in particular to reach a settlement, unless higher expenses can thereby be avoided.
3. The supplier's obligation to indemnify us applies to all the expenses that necessarily arise from or in connection with claims made by a third party. This claim does not apply if the supplier proves that it is not responsible for the infringement of the intellectual property rights and should not have known about such infringement at the time of delivery, when exercising commercial due diligence.

11. Retention of title

1. If we provide parts to the supplier, we retain title to such parts. Processing or transforming (Section 950 BGB) the supplied items shall be performed by the supplier on our behalf. If we process the goods delivered to us by the supplier, we shall be the manufacturer and shall acquire ownership of the respective product at the latest on further processing, in accordance with the statutory provisions.
2. Except for the option of simple reservation of title, the goods must be transferred to us unconditionally and regardless payment of the purchase price. We shall retain the power to resell the goods in the ordinary course of business even before payment of the purchase price, subject to prior assignment of the claims arising therefrom (alternatively, applying simple retention of title and retention of title extended to resale). This excludes all other forms of retention of title, particularly any enhanced retention of title and retention extended to further processing.

12. Documents; confidentiality

1. We reserve all the rights to which we are entitled, in particular title and copyright, in images, drawings, formulas, calculations, product descriptions and other documents that are sent or otherwise transferred in order to carry out the order. Such documents – including any copies and reproductions – must be used exclusively for performance of the contract and must be returned to us in full on request at any time, but no later than after completion of the order unrequested.
2. The supplier must keep all images, drawings, formulas, calculations, product descriptions, and any other documents and information that it has received strictly confidential and use such information exclusively for production in accordance with the specifications in our order. Such information may only be disclosed to third parties with our express written consent. The obligation of confidentiality shall continue to apply after the order has been processed or after the end of the contract for a period of two years or if an order does not proceed to execution; it shall only expire when and to the extent that the manufacturing knowledge contained in the provided images, drawings, formulas, calculations, product descriptions and other documents has become generally known.
3. The above provisions shall apply accordingly to substances and materials and to tools, templates, samples and other items that we provide to the supplier for production. Such items must be stored separately at the seller's expense and insured to a reasonable extent against loss and destruction, as long as they are not processed.
    

13. Limitation

1. The reciprocal claims of the parties shall expire in accordance with the statutory provisions, unless otherwise provided for below.
2. In deviation from Section 438(1) No. 3 of the German Civil Code (BGB), the general limitation period for material defects and defects of title shall be three years from transfer of risk. If acceptance is agreed, the limitation period shall commence on acceptance. The statutory limitation period for any right in rem of third parties to surrender of the object of purchase (Section 438(1) No. 1 of the German Civil Code (BGB)) remains unaffected. Claims arising from defects of title shall not expire by limitation in any case, as long as the third party can still assert the right against us – particularly in the absence of limitation.
3. On the supplier receiving our notice of defect (Section 377 BGB), the limitation period for warranty claims shall be suspended until we or the supplier refuse to continue negotiations regarding our claims.
4. The limitation periods under sales law and the above extensions shall apply to all warranty claims under the contract. Where we have extra-contractual claims because of a defect, the standard statutory limitation period (Sections 195 & 199 of the German Civil Code) shall apply, unless the application of the limitation periods under sales law in individual cases leads to a longer period of limitation.

14. Place of performance; applicable law; place of jurisdiction

1. The place of performance is our registered office in Ulm, Germany, unless the order specifies otherwise.
2. Law of the Federal Republic of Germany applies to these General Terms and Conditions of Purchase and the contractual relationship between us and the supplier, excluding international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. If the supplier is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship, at our discretion, is our business location in Ulm, Germany, or at the general jurisdiction of the supplier. This shall also apply if the customer has no general place of jurisdiction in Germany or if their residence or usual place of abode is not known at the time that the legal action is brought. Statutory provisions that take precedence, particularly regarding exclusive jurisdictions, remain unaffected.
    

15. Final provisions

1. If individual provisions of the contract with the supplier, including these terms and conditions of delivery and payment, are or become wholly or partially invalid, the validity of the remaining provisions shall not be affected.
2. The provision that is completely or partially invalid shall be replaced by a provision the economic purpose of which is as close as possible to the economic purpose of the invalid provision.