E-AEB-AI-0720-1 Status 01. July 2020

§ 1 Scope

  1. These General Terms and Conditions of Purchase (AEB) apply exclusively, in addition to other contractual agreements, to all business transactions between us and the seller, supplier, contractor, or service and works provider, hereinafter referred to as the supplier. We do not recognize conflicting conditions unless we expressly agree to their applicability. These AEB also apply if we accept the delivery or service with knowledge of conflicting conditions. Likewise, any previously agreed contractual conditions of the supplier that contradict or supplement these terms of purchase are no longer recognized.
  2. A contract conclusion does not fail due to contradictory general terms and conditions. As far as conflicting general terms and conditions correspond, the consistently regulated applies. Additionally, the provisions of our purchase conditions are agreed upon, to which no conflicting provisions of the supplier’s general terms and conditions oppose. On the other hand, such provisions of the supplier’s general terms and conditions that do not match our AEB’s regulatory content do not become part of the contract. In all other cases, the dispositive law applies.
  3. These AEB also apply to all future contracts with the supplier without renewed inclusion. They apply until new AEB are submitted by us.
  4. These terms of purchase apply only to entrepreneurs within the meaning of § 14 BGB.
  5. Side agreements and subsequent contract changes require written form.

§ 2 Offers and Samples

  1. Offers and samples are free of charge for us. Deviations from our request must be clearly indicated in the offer. The supplier is bound to their offer for at least one month.
  2. Our documents must be returned immediately and free of charge when they are no longer needed for the contract execution.
  3. Orders must be accepted by the supplier in writing within one week from the order date, indicating our order number. The supplier must confirm the order in writing.
  4. Confirmed prices are considered fixed prices.
  5. Delivery call-offs become binding at the latest if the supplier does not object within one week after receipt.
  6. Framework contracts entitle procurement of raw material only to the necessary extent.
  7. The production of parts for call-off orders is only permissible after the call-off has been received.
  8. The transfer of an order to third parties without our consent is prohibited. It entitles us to withdraw and claim damages.

§ 3 Changes

  1. We may request contractual changes before order execution. The changes must be agreed upon mutually. Concerns about the changes we require must be communicated to us immediately.
  2. If no agreement can be reached, we are entitled to withdraw; in this case, the supplier receives reasonable compensation for expenses.
  3. The supplier is not entitled to make order changes without prior written consent.

§ 4 Delivery, Price, and Payment Terms

  1. Deliveries are made according to the DDP (Delivered Duty Paid) clause of INCOTERMS 2010.
  2. The prices are understood as free destination in euros, including packaging, freight, tolls, postage, customs duties, insurance, and excluding taxes, especially VAT. This must be shown separately.
  3. A price specified in the order is considered a maximum price. It can be undercut but not exceeded. Unilateral price increases are not permitted.
  4. If a significant change in labor, material, or energy costs occurs in contracts with a duration of more than 24 months or open-ended contracts, each contracting party is entitled to request negotiations for an appropriate price adjustment considering these factors.
  5. The supplier may not charge us higher prices or grant worse conditions than other comparable customers.
  6. Invoices must be issued separately for each order in triplicate, indicating original and copy, and submitted immediately upon delivery. They must include the order references, order number, and item number.
  7. Unless otherwise agreed, payments by us will be made in euros free to the supplier’s domestic bank account.
  8. Payment is made when the invoice is due, the goods are fully and defect-free received, or the service is defect-free provided. This applies correspondingly to permissible partial deliveries. The payment period begins on the day of defect-free delivery, defect-free service provision, the day of acceptance, or the due date of the invoice, whichever is later. Payment is made subject to invoice verification and proper contract fulfillment.
  9. Delays due to incorrect invoices do not affect agreed discount periods. In case of a discount agreement, payment is made as agreed, but at least within 14 days minus 3% or within 30 days net from the invoice date.
  10. In case of simple negligence, we do not fall into default of payment. Our liability for delay damages is limited to typically occurring damages.
  11. If advance payments are agreed, the supplier must provide an unlimited performance bond from a German bank or insurance company for the amount of the advance payment. In case of delivery delay, default interest of 9 percentage points above the base interest rate according to § 247 BGB will be deducted from the invoice amount. The supplier may prove lower damage. The assertion of further delay damages by us is not affected by this regulation.
  12. If it becomes apparent after the contract conclusion that our delivery claim is endangered by the supplier’s lack of performance, we can refuse payment and set a reasonable deadline for the supplier in which they must deliver step by step against payment or provide security. If the supplier refuses or the deadline expires unsuccessfully, we are entitled to withdraw from the contract and claim damages.
  13. If the supplier’s solvency deteriorates to an extent that endangers contract fulfillment or if the supplier ceases their deliveries, we are entitled to withdraw. The right of withdrawal can also be exercised only partially.
  14. The supplier is not entitled to assign claims against us to third parties or have them collected by third parties without our consent. If an extended retention of title is agreed, consent is considered granted. If the supplier nevertheless assigns claims against us to a third party without our consent, we can pay either the supplier or the third party with discharging effect.
  15. Offsetting and retention rights are available to us to the statutory extent. The supplier is only entitled to exercise offsetting and retention rights insofar as the counterclaim on which the right of refusal, retention, or offsetting is based is undisputed or legally established. Furthermore, the supplier is only authorized to exercise a right of retention to the extent that their counterclaim is based on the same legal relationship.

§ 5 Inspection and Complaint Obligations

  1. Deliveries are inspected by us upon receipt only for identity, quantity, and outwardly visible transport damage. A complaint is timely if it is made within 10 working days from the discovery of the defect. The supplier waives the objection of a delayed complaint in this respect. In the case of through business, the complaint of the purchaser is decisive.
  2. In the event of a justified complaint, we reserve the right to charge the supplier for the inspection and complaint costs. The supplier bears the costs and risk of returning defective delivery items.

§ 6 Delivery Traffic, Default, Contractual Penalty, Transfer of Risk

The dates and deadlines specified in the order or call-offs are binding. We are not obliged to accept deliveries before the delivery date. For deliveries, compliance with deadlines and dates is determined by the receipt of the delivery at our specified plant or the receiving or usage location named by us. For services, timely and complete performance of the service is decisive. For works, the time of acceptance is decisive.

Partial deliveries and partial services are only permitted with written consent.

The supplier must immediately notify us of difficulties that prevent him from delivering on time in the prescribed quantity or quality and obtain a decision on maintaining the order. He is liable for failure to notify or late notification.

In the case of earlier delivery than agreed, we reserve the right to return the shipment at the supplier’s expense or store it temporarily with third parties at the supplier’s expense. If no return or storage with third parties occurs with early delivery, the goods will be stored with us at the supplier’s expense and risk until the delivery date. We reserve the right to make payment on the agreed due date in case of early delivery. For early delivery, the calculation of the discount period starts from the agreed delivery date or the day the invoice is received by us, whichever occurs last.

In the event of a delivery delay, we are entitled to the statutory claims; an exclusion or limitation of the supplier’s liability is excluded.

In the case of repeated or permanent delay by the supplier, we are entitled to withdraw from the contract or terminate it without notice. In the case of an unintentional delay, we are entitled to withdraw if the delay is significant and the urgency of the delivery requires it due to our own deadlines. Upon withdrawal, we may retain partial deliveries for credit.

If the supplier is in default, he is obliged to comply with our request for expedited shipping (express or expedited goods, courier, fast parcel, air freight, etc.) at his own expense.

No reminder or deadline is required if the delivery date is agreed as “fixed” or if the supplier declares that he cannot deliver even within the deadline.

If the supplier is in default, we are entitled, after a reminder, to demand a contractual penalty of 0.5% of the net delivery value or service per day, but not more than a total of 15% of the net delivery value or service, and to withdraw from the contract. We reserve the right to claim higher damages. The supplier is free to prove lower damages. The contractual penalty paid will be offset against a claim for damages. The right to demand the payment of an agreed contractual penalty is not forfeited by not expressly reserving it upon acceptance of the delayed delivery, provided it is claimed by the final payment.

In the event of the supplier’s delivery delay, we are entitled to a cover purchase if it is appropriate under the circumstances to avert imminent consequential damages from the delay. The additional costs incurred by us will be borne by the supplier.

The supplier can only refer to the absence of necessary documents to be provided by us if he has requested the documents in writing and has not received them within a reasonable period.

In the case of delayed acceptance, we are only liable for compensation claims in case of our fault.

Each shipment must include a duplicate delivery note indicating all markings contained in the order, especially order number, part number, batch number, position number. Partial and residual deliveries must be specially marked. The delivery note should be attached to the delivery externally, either under a sticker or under wrapping paper with the note: “Here is the delivery note.” For import deliveries, the shipment must include all required accompanying documents, especially movement certificates, express coupons, customs dispatch notes, certificates of origin, and invoices, depending on the shipping method and country of delivery.

Each delivery should be announced to us in advance. The announcement should contain information about our order number, quantity, dimensions, weight, special regulations for handling the goods, unloading, transport, and storage. Delays, additional costs, and damages resulting from non-compliance with the shipping regulations are at the supplier’s expense. We reserve the right to return packaging material to the supplier.

The risk does not pass to us until delivery after unloading by the supplier or the transport company at the shipping address specified by us or upon acceptance. This also applies if our personnel assist in unloading.

Goods acceptance takes place during business hours or the goods acceptance times announced by us.

§ 7 Force Majeure, Emergency Production Right

In cases of force majeure, we are released from our contractual performance obligations for the duration of its presence. Force majeure also includes, but is not limited to, circumstances beyond our control, such as official decrees, operational restrictions, export or trade restrictions due to changes in political conditions, epidemics like COVID-19 and influenza, strikes, lockouts, operational disruptions, and similar events that hinder our contract performance. If the force majeure lasts for a considerable duration, i.e., continuously for at least 4 weeks, we are entitled to withdraw from the contract if it results in a significant reduction of our requirements. This is particularly the case if our requirements decrease by more than 25%.

If an event of force majeure occurs at the supplier or his sub-suppliers or subcontractors that prevents the supplier from fulfilling his contractual performance obligations to us for more than 4 weeks, we are entitled to produce the contract products or perform the commissioned service ourselves or have them produced or performed by third parties. However, this is subject to the condition that due to this performance disruption, we ourselves cannot fulfill our delivery or performance obligations to third parties and both we and the commissioned third parties have previously concluded a confidentiality agreement with the obligation to use the confidential information provided only for the production of the contract products or the performance of the service. In this case, the supplier must promptly provide us with all tools required for the production of the contract products or the performance of the service, unless these are available on the open market, as well as all necessary documents, drawings, samples, and other materials and information upon our request, and reasonably support us in relocating the production or performance within the scope of what is reasonable for him, and grant us a limited, transferable, royalty-free, non-exclusive, irrevocable right of use for the duration of the force majeure plus a reasonable period for the start of production at the supplier.

§ 8 Material and Legal Defects

The supplier warrants that his products and services comply with statutory and regulatory requirements and technical standards as well as the current state of science and technology and the agreed specifications and are suitable for the intended use known to the supplier.

The supplier should inform himself about the intended use of his products, services, and works.

The supplier must inform us promptly of changes in his products, their availability, usability, or quality caused by statutory regulations and agree on appropriate measures with us in individual cases. The same applies as soon as and to the extent that the supplier becomes aware of such changes.

The supplier must label his delivery items in such a way that they can be recognized as his products and traced by him.

The supplier must include factory inspection certificates and safety data sheets with his deliveries.

The supplier further warrants that the services and deliveries provided by him are free of third-party rights, particularly do not infringe domestic or foreign intellectual property rights of third parties.

Upon request, he will name all intellectual property rights applications he uses in connection with the delivered items or services. If he becomes aware of an infringement of intellectual property rights or applications, he must notify us immediately without being asked.

§ 9 Warranty and Damage Claims

Complaints mean additional effort. For this reason, we reserve the right to charge a lump sum of €100.00 per justified complaint. The supplier is free to prove lower effort and we are free to prove higher effort.

We are entitled, at our discretion, to demand supplementary performance from the supplier. The place of performance for supplementary performance is the designated location of the item. This is the location where the item is at the time of the complaint. The supplier must bear all expenses necessary for the purpose of supplementary performance, especially transport, travel, labor, material, and replacement costs.

If the supplier does not carry out the defect rectification or replacement delivery within a reasonable period set by us, or if the defect rectification is impossible or fails, we are entitled to withdraw from the contract and claim damages instead of performance. If it is no longer possible to notify the supplier of the defect and the impending damage due to special urgency and to set him a period for remedy, even if short, we are entitled to rectify the defect ourselves or have it rectified by third parties or procure a replacement at the supplier’s expense, provided that an unreasonably high disadvantage arises for us from the absence of immediate supplementary performance in relation to the disadvantage arising for the supplier. The costs to be reimbursed by the supplier must not be disproportionately high. Further statutory or contractual claims remain reserved.

If the same goods are repeatedly delivered with defects, we are entitled to withdraw from the contract after written warning in case of another defective delivery, even for the unfulfilled delivery scope.

Our warranty or damage claims expire in purchase contracts 36 months after the delivery of the products manufactured using the supplier’s products, but no later than 60 months after delivery to us and in service and work contracts 60 months after acceptance of the service or work. This only applies if no longer or later starting statutory limitation period is provided. If acceptance is delayed without the supplier’s fault, the warranty period is a maximum of 60 months after the item is ready for acceptance. The warranty period for defects in parts for buildings is 60 months after acceptance or commissioning. For delivery parts that cannot remain in operation or otherwise be used for their intended purpose during supplementary performance or damage rectification, the running warranty period is extended by the period of operational or usage interruption. The aforementioned limitation periods also apply if the supplier has provided a guarantee for his products, works, or services.

Claims against the supplier for legal defects of products, services, or works expire

5 years after delivery to us or acceptance by us. This only applies if no longer or later starting statutory limitation period is provided.

If the supplier acts not only out of goodwill or to settle a dispute amicably but with the awareness of being obliged to rectify the defect, considering the scope, duration, and costs of defect rectification, the limitation period for subsequently delivered parts starts anew at the time the supplier has provided the supplementary performance services or upon acceptance.

The supplier must indemnify us from third-party claims resulting from material defects of the delivery item or the provided service or work upon our request, provided he is responsible for the damage. If we are held liable by third parties based on strict liability under non-waivable law, the supplier must indemnify us upon request to the extent that he would also be directly liable. The principles of § 254 BGB apply correspondingly to the damage compensation between us and the supplier.

The supplier indemnifies us from third-party claims due to legal defects, provided he is responsible for the defect.

The limitation period for the indemnity claims mentioned in clauses 8 and 9 is three years and begins with our request to the supplier to indemnify us. Any statutory longer limitation periods take precedence.

The supplier is obliged to reimburse us for the costs and expenses incurred and damages caused by a recall or withdrawal action carried out to avoid personal or property damage, resulting from the defectiveness of the delivery item or the provided service or work.

§ 10 Insurance Coverage

The supplier undertakes to take out and maintain business and product liability insurance with coverage of at least €2.5 million per damage event, twice annually maximized, for personal, property, and product financial losses, and a recall cost insurance for automotive and non-automotive parts with coverage of at least €1 million per damage event and insurance year.

The scope of product liability insurance must cover the extended product liability insurance forms, including the so-called optional coverages and necessary coverage adjustments according to the new sales law effective since 01.01.2018. Coverage must also extend to damages abroad.

The supplier should present these General Terms and Conditions to his business and product liability insurer for co-insurance of the complaint procedure described in § 5 and the limitation period specified in § 10, paragraphs 5 and 10, as well as the indemnity obligation contained in § 10, paragraph 8, or confirmation of the coverage harmlessness of these regulations according to clause 7.3 AHB.

The supplier provides us with proof of the existence of the aforementioned insurances, a confirmation (Certificate of Insurance) from his insurer, no later than upon conclusion of the contract.

§ 11 Confidentiality

The contracting parties undertake to treat all aspects of the business relationship confidentially. They will treat all non-public commercial and technical details known to them through the business relationship as trade secrets. Information or aspects of the business relationship already publicly known at the time of disclosure and such information or aspects of the business relationship already demonstrably known to the supplier before the disclosure of the information by us are not subject to the confidentiality obligation.

We reserve ownership and copyrights to images, drawings, calculations, and other documents. Our documents may only be made available to persons who execute our order. The supplier ensures that his employees also protect our legitimate confidentiality interests.

The supplier is also obliged to confidentiality after the end of the business relationship. All items provided by us must be returned to us after rejection or processing of the order.

Duplication of the items provided to the supplier is only permitted within the scope of operational requirements and copyright provisions.

All information concerning the business relationship is not intended for third parties. Partial or full disclosure of our order to third parties may only occur with our prior written consent; the supplier must also oblige the third parties to confidentiality through a similar agreement.

The supplier may only advertise the business relationship with our prior written consent.

Items provided to the supplier remain our property. Items manufactured on our behalf become our property. These may only be delivered to third parties with our express prior written consent.

Assignment of the order to third parties without our consent is prohibited. It entitles us to withdraw and claim damages.

The supplier undertakes not to conduct business directly or indirectly with our customers that correspond to the subject of the order.

Products that match our order and are not of general specification but intended for a specific application must not be delivered to third parties.

§ 12 Manufacturing Means, Retention of Title

Manufacturing means provided by us, planned by us, or paid for by us, such as models, molds, templates, samples, tools, remain our property or become our property. They may not be used for deliveries to third parties, duplicated, sold, transferred as security, pledged, or otherwise transferred. The same applies to delivery items manufactured using these manufacturing means. The supplier is obliged to use the manufacturing means exclusively for the production of the contract products ordered by us.

If our property is seized by third parties, the supplier is obliged to inform us immediately in writing. The supplier must inform the enforcement officer of the ownership status of the items already at the time of seizure.

The supplier is obliged to insure items in our ownership at new value at his own expense in property insurance with the widest possible coverage (all-risk coverage, extended coverage). The supplier assigns the compensation claims from this insurance to us.

The supplier is obliged to carry out any necessary maintenance and inspection work as well as all maintenance and repair work on the provided items at his own expense and in a timely manner.

If we provide items, we retain ownership of them. Contractually agreed processing or transformation by the supplier is carried out for us. If the reserved goods are processed, combined, or mixed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other items at the time of processing, combination, or mixing. If processing, combination, or mixing occurs in such a way that the supplier’s item is considered the main item, it is agreed that the supplier will transfer proportional co-ownership to us. This regulation also applies if we refuse acceptance due to late or defective delivery or if we refrain from further orders. In such cases, the provided items must be made available to us free of charge. Offset is excluded.

Additional expenses due to material defects and dimensional deviations in the provided raw materials may only be charged to us with our prior written consent to these additional expenses.

The supplier is obliged to check the provided items for obvious defects, such as identity, quantity, and transport damage, and notify us of defects immediately upon delivery. Defects discovered during processing must be reported to us immediately after discovery.

To the extent that our security rights exceed the purchase price of all still unpaid reserved goods by more than 15%, we will release a corresponding part of the security rights at the supplier’s request.

We do not recognize any extension or prolongation of a retention of title that goes beyond the simple retention of title of the supplier on the supplier’s product stored with us, especially after processing, combination, or mixing with other goods and after the sale of the supplier’s product.

§ 13 EU Regulation REACH

The supplier ensures that all substances used, which fall under the EU Chemicals Regulation REACH, are registered and approved according to this regulation, considering the contractual use of the substances. This also applies to suppliers outside the EU. Upon our request, the supplier provides suitable evidence of compliance with this obligation.

§ 14 Export and Customs Regulations

The supplier is obliged to inform us in his business documents about any approval requirements for (re-)exports of his goods according to German, European, and US export and customs regulations, as well as the customs and export regulations of the country of origin of his products. For this purpose, the supplier provides at least the following information in his offers, order confirmations, and invoices for the relevant goods positions: export list number according to Annex AL of the German Foreign Trade and Payments Regulation or comparable list positions of relevant export lists; for US goods, the ECCN (Export Control Classification Number) according to US Export Administration Regulations (EAR); the trade policy origin of his goods and the components of his goods, including technology and software; whether the goods are transported through, manufactured, stored, or produced using US technology; the statistical commodity number (HS code) of his goods, and a contact person in his company to clarify any queries from us.

Upon our request, the supplier is obliged to provide us with all further foreign trade data about his goods and their components in writing and to inform us immediately before delivery of the affected products about any changes to the existing data.

The supplier also confirms that he has no business contact with companies, firms, credit institutions, organizations, and individuals listed on EU and/or US sanctions lists according to the EU or EU Regulations No. 2580/2001 and No. 881/2002 and No. 753/2011. This also applies to subsidiaries and branches of the supplier as well as participation in third parties at home and abroad. Furthermore, the supplier undertakes to notify us immediately in writing of any positive results found during the examination according to the aforementioned sanctions lists. We are entitled to terminate this contract and all other existing contracts with the supplier and immediately cease existing business relationships without the supplier being able to derive compensation claims if there are existing contacts of the supplier after appropriate examination.

§ 15 Proof of Origin

The supplier will provide proof of origin requested by us with all necessary information and duly signed without delay.

The supplier will inform us immediately and unsolicited in writing if the information in the proofs of origin for the delivered goods no longer applies.

The same applies to VAT proofs for foreign and intra-community deliveries.

The supplier will inform us immediately if a delivery is wholly or partially subject to export restrictions under German or other law.

§ 16 Jurisdiction, Place of Performance, Applicable Law

The place of jurisdiction is, at our option, the court responsible for our business location or the supplier’s place of jurisdiction.

The place of performance is the location to which the goods are to

be delivered according to the order. The place of performance for payments is our company headquarters.

The law of the Federal Republic of Germany exclusively applies to the contractual relationships with us and our clients. The applicability of the CISG – “UN Sales Law” is excluded.

If individual parts of these general terms and conditions are invalid, the validity of the remaining provisions is not affected.

§ 17 Data Protection

We treat all supplier data exclusively for business processing purposes and according to the applicable data protection regulations. The supplier has the right to request information in writing about his personal data collected, processed, and used by us.

§ 18 Contact Information

Harry Roth Präzisionsdrehteile GmbH & Co. KG Brunnenrain 1 79183 Waldkirch

Managing Directors: Lars Bischoff, Robert Bischoff

Phone: 07681-2008-0 Fax: 07681-2008-46 Email: info@harry-roth.de

Local Court Freiburg HRA 700168

VAT ID: DE814734182

Personally liable partner: Bischoff Drehteile Vertriebs GmbH Local Court Freiburg HRB 602516