GTP

As at July 2021

This translation is for convenience only and is not legally binding. The German version shall prevail.

§ 1 General Scope of Application; Exclusivity

1. These General Terms and Conditions of Purchaseapply to all companies of the METZEN Industries group of companies (hereinafter also referred to as “we/us”), namely:

• METZEN Industries GmbH
• METZEN GmbH
• Metzen S.à r.l.
• Kröger Greifertechnik GmbH & Co KG

2. The of the METZEN Industries Group (hereinafter, with regard to the group company that becomes the contracting party, also referred to as “we/us”) shall apply exclusively; we do not recognise any conflicting or deviating general terms and conditions of the Supplier or contracting party, in particular in the form of general delivery and sales terms, unless we have expressly agreed to their applicability; otherwise, they are hereby rejected. Our Terms of Purchase shall apply exclusively even if, in the knowledge of conflicting or deviating terms and conditions of the Supplier, we accept the Supplier’s delivery and/or service without reservation.

3. Upon the Supplier’s first delivery or service on the basis of these Terms of Purchase, these Terms of Purchase shall also apply to all further deliveries and services of the Supplier to us. In the following, other contracting parties providing deliveries/services are also uniformly referred to as the “Supplier”.

4. If framework agreements or individual agreements have been concluded between us and the Supplier, they shall take precedence over these Terms of Purchase. Unless more specific provisions have been agreed therein, they shall be supplemented by these Terms of Purchase. This shall also apply to framework agreements concluded by us with the Supplier.

5. All agreements made between us and the Supplier for the purpose of concluding and performing the contract shall be set out in the contract in written form or text form. § 305b BGB (precedence of individual agreements) shall remain unaffected for individual agreements in any form.

6. Our Terms of Purchase apply exclusively vis-à-vis entrepreneurs within the meaning of § 14 BGB, i.e. natural or legal persons or partnerships with legal capacity who, when concluding the contract, act in the exercise of their commercial or self-employed professional activity.

7. Only the German version of these Terms of Purchase shall be binding. If the English translation or a translation into another language differs in content from the German version, the German version of the EKB shall prevail.

§ 2 Transmitted Data, Illustrations, Formulae, Recipes, Drawings, Calculations; Photographs; Tools; Moulds, Cylinders; Printing Masters

1. We reserve exclusive title and copyright in and to any illustrations, formulae, recipes/manufacturing or use instructions, samples, specimens, drawings, layouts, calculations and other documents and data provided by us; the Supplier may not make them accessible to third parties without our express consent. They may be used exclusively for the processing of our order and/or for the performance of the contractual relationship entered into with us and must be returned to us without being requested, including all copies, after completion of the order and, in the case of continuing obligations, upon termination thereof, or must be destroyed by the Supplier upon our request. The Supplier shall keep them confidential third parties, unless the Supplier is subject to an official or statutory obligation to disclose. If such illustrations, formulae, drawings, calculations and other documents are embodied in data, such data must be completely deleted at any time upon our request by overwriting, and the deletion must be confirmed to us by the Supplier in written form or text form without undue delay.

2. Products manufactured by the Supplier or its vicarious agents on the basis of documents and/or data designed by us and/or our vicarious agents (e.g. drawings, samples, specimens or models and the like), or on the basis of information provided by us and/or our vicarious agents that is marked or designated as confidential, or with characteristics and/or properties of a product that are not publicly known, and/or using our tools or replicated tools, may neither be used by the Supplier itself outside our order nor offered or supplied to third parties. The Supplier shall also agree this, at its own expense, with the vicarious agents engaged by it, in our favour as a genuine contract for the benefit of third parties and shall provide evidence thereof upon our first request.

3. The Supplier is prohibited from taking photographs on our works premises.

4. Tools, moulds, cylinders, printing masters, technical drawings or the like, which are manufactured by the Supplier or through the Supplier on our behalf, shall become our property upon completion. They must be marked by the Supplier as our property, stored separately and, free of charge, insured at replacement value, and maintained and repaired in accordance with customary commercial practice. In the absence of an express agreement to the contrary, we shall not bear any costs for tools, cylinders, masters and the like for existing items/size units. Our property may be used for production exclusively for us.

5. Our property must be surrendered by the Supplier to us at any time upon our request.

6. If the manufacturing costs in respect of the items of our property have not yet been settled (amortisation), surrender shall be made concurrently against settlement of the outstanding balance. Tools, masters and the like may only be destroyed after prior agreement with us.

§ 3 Supplier’s Offers / Travel Expenses / Performance in Person 

1. The Supplier’s offers should be submitted in written form or in text form. They shall be non-binding and free of charge for us. All costs must be stated in the offer. Estimated prices (e.g. travel expenses) must be shown separately and, where possible, supported by daily rates. Surcharges such as service fees, agency commission, handling fees, charges, etc. are not accepted by us. Expenditure of this kind must be expressly shown as separate cost items in the offer. All prices stated in the Supplier’s offers are fixed prices, in the case of continuing obligations, for the entire term of the contract.

2. Unless otherwise contractually agreed, travel expenses shall be reimbursed to the Supplier against submission of receipts as follows: car EUR 0.30 per km; rail 2nd class; for flights, the most economical option for us must be chosen. For overnight stays at our sites, hotels covered by our framework agreements are to be used as a priority. For hire cars, our partner agreements must likewise be considered.

3. The Supplier’s offers must fully describe the subject matter of the delivery/service and must also list in full all additional products and/or services required for the safe and economically efficient use of the subject matter of the delivery/service by us, and price them into the Supplier’s offer.

4. Goods or components of goods and/or services or components of services that are not listed in the Supplier’s offer but are essential for safe operation or proper use of the goods and/or services in accordance with the agreed characteristics shall – unless otherwise agreed – be deemed part of the subject matter of the delivery and/or service and shall be owed by the Supplier together with it.

5. With its delivery, the Supplier shall also provide customary material certificates and proofs of origin in German.

6. The Supplier shall expressly draw attention, in writing or in text form, in its offer and, if the Supplier gains new knowledge after submission of the offer, immediately upon becoming aware, to hazards in the use of the subject matter of the delivery/service and any resulting environmental hazards, or the possible infringement of third-party rights connected with the delivered goods or the performance of the agreed service, as well as to any need for special handling of the subject matter of the delivery/service (in particular for storage or further processing).

7. Unless otherwise agreed, the Supplier owes performance as a “performance in person”, i.e. in the case of legal entities exclusively with its own employees.

§ 4 Orders; Acceptance Declaration, Contract Formation, Order Processing

1. In order to enable us to carry out proper contract controlling, only orders issued by us in written form or text form bearing our sender identification shall be valid. If framework agreements exist with the Supplier, orders may also be placed via electronic data interchange (EDI) or electronically.

2. The Supplier is obliged to state on all shipping papers and delivery notes exactly our order number and/or the ordering party as well as our creditor number and goods number. If it fails to do so, any delays in processing and payment shall not be attributable to us.

The Supplier must confirm the order in written form or text form within 5 working days (at its registered office) after receipt of the order; if our order is placed via an electronic ordering platform of the Supplier, within 3 working days at the Supplier’s registered office. Receipt of the confirmation by us shall be decisive. After expiry of this period, we are entitled, in the absence of any other agreement, to revoke our order. Claims of the Supplier arising from a valid revocation made for this reason are excluded.

3. We request the order confirmation in a single copy. The Supplier is obliged to state exactly on the order confirmation, all shipping papers and delivery notes our order number and/or the ordering party, our creditor number and goods number. If it fails to do so, any resulting delays in processing shall not be attributable to us.

4. Unless otherwise agreed and subject to other proof, official values – or, if such are not available, the values determined by us after receipt of the goods – shall be decisive for quantities, weights and dimensions as well as delivery quantities. For all shipments, weights and quantities must be stated in the accompanying documents insofar as this is customary in trade, agreed with us, or remuneration is based on weight or quantity.

5. If our order or the underlying documents or data contain obvious errors, or errors, mistakes, typing or calculation errors recognised by the Supplier, we shall not be bound in this respect. In such cases, the Supplier is obliged to inform us without delay in written form or text form of the relevant errors so that we are able to correct and re-issue our order. If recognisably necessary documents were not enclosed with the order, this obligation applies accordingly. In addition, the Supplier must expressly inform us in written form or text form together with the order confirmation if the delivery items are dual-use goods, i.e. goods with a dual purpose; items, technologies and knowledge which as a rule serve civilian purposes but can also be used for military purposes and fall under the EU Dual-Use Regulation.

6. Upon our request, the Supplier agrees to grant authorities and employers’ liability insurance associations which are responsible for quality and environmental management, the prevention of hazards to health or the approval of our products and/or services, production safety and social insurance matters at our registered office, at the delivery and/or service location and/or at the Supplier’s registered office, access to its production facilities and to provide us with any support in this context that is technically, economically or logistically reasonable for the Supplier, should authorities investigate one of the products or substances delivered by the Supplier to us and/or a service provided by the Supplier to us, or should they appear due to alleged legal infringements by such products and/or services in which the Supplier has participated via supplies or subcontractor services or thereby enabled production or our performance.

7. If the Supplier accepts our order only subject to deviations, it shall clearly highlight such deviations and expressly indicate them in its order confirmation.

8.The Supplier shall also notify us, in writing or in text form, of any changes to contractual terms or order details and/or order conditions.

Changes/extensions of the contractual scope, the necessity of which becomes apparent only during performance of the contract, shall be notified to us by the Supplier without undue delay in writing or in text form as soon as the Supplier becomes aware of them. Such changes/extensions shall only become legally effective upon our written consent. The precedence of individual agreements pursuant to § 305b BGB in any form remains unaffected.

9. In the absence of any other agreement, where assembly, repair or construction services are commissioned, the Supplier shall be obliged, by inspecting the plans available from us regarding the type of execution and the scope of the services and by carrying out an on-site inspection of the construction site and/or the assembly site and/or the location of any other services to be provided by the Supplier, and, if necessary, by making enquiries with us, to sufficiently inform itself of the local conditions relevant to the services to be provided before performing the services.

10. The Supplier shall identify in full, in writing or in text form, any documents to be provided by us in good time before performing the services and shall request them from us in written form or in text form.

11. Insofar as the Supplier is contractually obliged, or as an ancillary obligation, to provide us with material samples, test reports, quality documents or other documents, complete delivery and/or performance shall also require full handover of such samples, reports and documents in German or English. Full handover to us is a due-date condition for the remuneration payable by us.

12. We are entitled to withdraw from the contract, and, in the case of a continuing obligation contract concluded with the Supplier, to terminate the contract extraordinarily without notice, if one of the following alternative circumstances applies:

• (i) the Supplier increases the price for the goods sold by it or the services to be provided by it under an offer price that provides for a unilateral price increase option on the Supplier’s part; and/or
• (ii) the Supplier files for insolvency or ceases payments, or an application to open insolvency proceedings over the Supplier’s assets is rejected for lack of assets, provided that, in the aforementioned cases, at the time of withdrawal the Supplier is culpably in breach of an obligation under the contract concluded with us or it is unreasonable for us to continue to adhere to the contract.

In the aforementioned cases, the Supplier shall have no claims whatsoever against us as a result of our withdrawal or termination, in particular no claims for damages or reimbursement of expenses.

§ 5 Prices, Payment, Invoice, Assignment, Set-off, Retention, Packaging, Waste Disposal

1. Unless expressly agreed otherwise, agreed prices are fixed prices and – unless otherwise agreed in writing – include all costs for packaging, transport to the agreed receiving/dispatch point (delivery DDP – Incoterms), as well as for customs formalities and customs duties. In the absence of any other express agreement, our registered office shall be the place of delivery. Excess quantities shall not be remunerated. Short deliveries must be credited to us without undue delay.

In the case of orders subject to a price reservation on the Supplier’s part, we shall be entitled to withdraw from the contract and, in the case of continuing obligations, to terminate without notice if the price stated in the confirmation is not acceptable to us

2. Unless otherwise agreed with the Supplier, all payments shall be made by bank transfer in euros after complete and defect-free delivery of the goods and handover of the documentation owed. Where bills of exchange or promissory notes are accepted as payment, we shall bear the bill stamp duty and the discount at an amount to be agreed.

3. The applicable VAT is included in the price unless the price has expressly been stated and agreed as a net price. The VAT rate applicable at the time of conclusion of the contract shall apply.

4. We ask for your understanding that we can only process invoices if they are auditable and – in accordance with the specifications in our order – state the order number and/or purchaser details indicated therein and specify the VAT identification number. If such details are missing, any delays in processing and payment shall not be attributable to us.

The Supplier shall send invoices exclusively to the invoice address specified by us. The invoice must not be enclosed with the goods shipment.

5.Unless otherwise agreed in writing, we shall settle invoices received by us as follows:

• within 14 calendar days from receipt of the invoice with a 3% cash discount,
• within 60 calendar days from receipt of the invoice, net.

Cash discount deductions are also permissible if we exercise a right of set-off.

6. Payments made by us shall not constitute acceptance or a waiver of any defect rights and shall not constitute any acknowledgement of contractual performance.

7. If we accept an early delivery and/or service, the due date for payment shall – unless otherwise agreed – be based on the originally agreed delivery date.

8. In the event of incomplete or defective delivery and/or service, we are entitled to withhold payment in full or on a pro rata value basis, in proportion to the defect-free and defective part of the delivery/service, until proper performance has been rendered.

9. If advance payments are agreed, they shall only become due once the Supplier has provided us with a guarantee securing the advance payment, issued as a self-contained guarantee by a German credit institution or savings bank affiliated to the deposit protection fund.

10. The Supplier shall have rights of retention and set-off against claims of ours only in respect of such claims as are recognised by us or have been finally adjudicated. Set-off shall also be permissible if the counterclaim asserted for set-off is in the synallagma (i.e. in the reciprocal relationship of the two performances under the contract concluded with us) with our claim.

11. The Supplier shall pack the items/substances to be delivered exclusively in environmentally friendly packaging material or environmentally friendly containers in such a way that transport and/or storage damage is prevented under customary handling. Packaging of the respective delivery items is included in the price unless we have expressly agreed otherwise with the Supplier. Any waste generated during delivery or installation by the Supplier must be disposed of by the Supplier free of charge upon completion of the delivery/service.

12. If, exceptionally, other agreements have been made between the Supplier and us, the Supplier shall charge the packaging at cost price. In this case, the Supplier shall select the packaging specified by us and must request our choice in good time in text form. If the packaging selected by us is not suitable for safe and appropriate packaging of the delivery item, the Supplier must notify us of this without undue delay in writing or in text form.

13. If the packaging used for shipping the goods is invoiced separately on the basis of an agreement, we may return it in usable condition carriage paid in exchange for a credit note of at least two-thirds of the net price invoiced for it, unless we have expressly agreed otherwise with the Supplier. The Supplier remains entitled to prove that the returned packaging has a materially lower value (at least 10% lower). In this case, the reimbursement shall be adjusted accordingly.

14. In the case referred to in Clause 13 above, we are entitled to return the packaging to the Supplier at the Supplier’s expense.

§ 6 Subcontracts

The Supplier is entitled to place subcontracts if and insofar as no performance in person by the Supplier has been agreed. In this case, however, we are entitled to object, for good cause, to the Supplier placing subcontracts. In this case, the Supplier shall perform the order itself or have it performed by another subcontractor. Good cause exists in particular if, on an objective assessment, the subcontractor does not provide sufficient assurance of proper performance of the contract concluded between us and the Supplier and of the activity assumed by the subcontractor.

The Supplier must inform us of the use of the subcontractor sufficiently early in written form or text form, stating all relevant details (e.g. company name, address, qualification, references), so that we can still examine before the planned deployment whether good cause exists in the above sense and can inform the Supplier of the result of the examination with a period of 3 calendar days before the planned deployment.

§ 7 Delivery, Delivery Period; Environmental Protection and Energy Efficiency; Right to Information

1. The agreed delivery and/or performance dates and periods shall be complied with by the Supplier. Where an obligation to deliver has been agreed, compliance requires receipt of the goods by us or at the agreed place of delivery. Vehicles may only be unloaded at our premises Monday to Thursday between 07:00 a.m. and 3:30 p.m. and on Fridays between 07:00 a.m. and 11:00 a.m., unless an exception has been expressly agreed in an individual case. The Supplier shall be responsible for all consequences arising from non-compliance with this obligation. (Packaging material may only be delivered after prior telephone notification one day before delivery, between 07:00 a.m. and 11:00a.m.) Packaging material may only be delivered, after prior telephone notification, between 07:00 a.m. and 11:00 a.m. on the day prior to delivery.

2. The Supplier is obliged to notify us without undue delay in writing or in text form if circumstances occur or become apparent to it from which it follows that agreed delivery or performance dates cannot be met. This also applies if the Supplier is not responsible for the delivery delay. In the event of a culpable breach of this obligation, we shall be entitled to compensation from the Supplier for the damage incurred as a result.

3. In the event of delivery or performance earlier than agreed, we reserve the right to return the goods at the Supplier’s expense or to refuse performance, or to reject the delivery. If, in the event of early delivery, the goods are not returned, the goods shall be stored until the delivery date at the Supplier’s cost and risk.

5. Partial deliveries or partial services by the Supplier are only permissible upon express agreement with us. In the case of agreed partial deliveries, the remaining residual quantity must be clearly stated.

6. Protective devices required for loading and unloading must be carried by the Supplier. When loading and unloading lorries and silo vehicles on our works premises, safety footwear must be worn.

7. For hazardous substances, the safety data sheets must be provided no later than with the first delivery.

8. Safety defects in delivery vehicles and in the Supplier’s delivery equipment during the delivery process always entitle us to refuse acceptance.

9. In addition to optimised logistics planning for delivery, the Supplier shall also take optimal account of the recycling of products, packaging and contractual assets.

10. For our procurement of products and equipment, energy consumption and energy efficiency are important evaluation criteria. Taking into account the contractually agreed requirements as well as economic efficiency and what is technically feasible, the Supplier shall use the most energy-efficient technology for contractual items.

§ 8 Transfer of Risk, Documents; Foreign Trade Law

1. Unless otherwise agreed with us, delivery shall be made DDP (Incoterms) and shall be at the Supplier’s risk until the time of complete delivery; and, in the case of works contract services, until acceptance by us at the contractually agreed place of performance.

2. Within the scope of the business relationship, the Supplier is obliged to handle each individual order separately throughout the entire correspondence. It is the Supplier’s responsibility to state, in all correspondence and documents such as e-mails, letters, dispatch notices, delivery notes and packing slips, invoices, consignment notes, accompanying addresses and the like, at least the full order number, order date and the purchaser’s reference as well as our transaction number. If delivery Ex Works is agreed, the Supplier shall prepare the freight/customs/loading documents and packing lists and send them to us without undue delay.

3. The above documents, such as invoices, delivery notes and packing slips, must be enclosed in a single copy with each shipment and sent once separately to us by post. In the case of deliveries of goods, the content of these documents shall include at least:

quantities and unit of measure, gross, net and, where applicable, chargeable weight, as well as the order number, item description, remaining quantity in the case of partial deliveries and our order number, as well as our creditor number, the Supplier’s order number and our material number.

4. As an essential contractual obligation, the Supplier is obliged to hand over to us, together with delivery of the goods, certificates of origin and certificates of conformity/quality for the delivery items in German or, at our choice, English. Remuneration for this is already included in the remuneration for the main performance.

5. In the case of works contracts and such purchase contracts where acceptance of the delivery item is agreed, risk shall pass only upon our formal acceptance of the service and/or delivery. Otherwise, risk shall pass upon delivery of the delivery item to us or at the agreed place of delivery/performance. Acceptance-by-conduct fictions are excluded.

6. The contractor shall, upon request, provide evidence of the country of origin of the goods in accordance with the relevant standards by means of long-term supplier declarations and/or corresponding proofs of origin. These shall be provided to us free of charge, stating the reference to the material number. Changes in the origin of the goods must be notified to us without undue delay in writing or in text form. The contractor shall be liable for the correctness of its statements.

§ 9 Delay

1. In the event of delay in delivery and/or performance by the Supplier, we shall be entitled in full to the statutory claims. In particular, after fruitless expiry of a reasonable period of at least 3 calendar days (excluding Saturdays, Sundays and public holidays), we are entitled to withdraw from the contract and/or to claim damages in lieu of performance.

2. In the event of delay in delivery and/or performance by the Supplier, we are entitled to demand a contractual penalty in the amount of 0.5% of the net remuneration of the delivery/service in delay per completed week of delay, but not more than a total of 5% of the net remuneration of the delivery/service in delay; further statutory claims, in particular claims for damages, however subject to full set-off of the contractual penalty, remain reserved. We may assert the contractual penalty within 3 months after becoming aware of the delay.

3. In the event of an impending or already occurred delay in delivery and/or performance of the delivery/service owed to us, the Supplier shall, upon request, grant us access to all of its relevant documents in connection with the legal relationship underlying the delivery/service vis-à-vis its sub-suppliers and/or subcontractors, and shall name to us all relevant sub-suppliers and suppliers as principals entitled to inspection. However, to the extent that the disclosure involves trade secrets within the meaning of § 2 of the German Trade Secrets Act, i.e. information and/or data that is known only to a limited circle of persons, relates to the Supplier’s undertaking, has economic value and is identifiable, and in respect of which the Supplier has taken reasonable protection measures, the Supplier shall be obliged to disclose such trade secrets only after we have offered it a confidentiality agreement binding us, with respect to the information to be disclosed, for the benefit of the Supplier.

4. If, in the event of a delay in delivery or performance by the Supplier, there is an objective reason in our favour, the Supplier shall grant us the right to make direct contact, in the course of order processing, with all relevant sub-suppliers and suppliers engaged by the Supplier in order to avert such delay in delivery and/or performance or to shorten it as far as possible. For this purpose, the Supplier shall provide us with the relevant contact details free of charge and without undue delay.

5. In the cases referred to in Clauses 3 and 4 above, overall responsibility for the order shall remain with the Supplier.

6. Acceptance of the late delivery shall not constitute a waiver of any claims on our part, in particular of any contractual penalty agreed in our favour.

§ 10 Acceptance

1. If the inspection of the Supplier’s services requires commissioning of a plant or machine, acceptance shall take place only after successful completion of the agreed functional tests. Otherwise, our inspection period shall be 12 calendar days after receipt of the completion notice, unless otherwise expressly agreed. In this respect, the Supplier waives the objection of late notice of defects.

2. Insofar as the Supplier is obliged to provide a service that requires acceptance by us, the Supplier shall be obliged to notify us of its request for acceptance in writing or in text form at least 7 calendar days prior to the acceptance date to be agreed. The period shall commence upon receipt of the Supplier’s notice by us.

3. If defects are identified during the acceptance inspection, partial acceptance of defect-free services is possible upon coordination with us, without the Supplier having any legal entitlement thereto. However, such partial acceptance shall not constitute final acceptance within the meaning of § 640 BGB.

4. Acceptances require an acceptance record agreed with us in written form or text form and signed by the parties. Acceptance-by-conduct fictions are expressly excluded, unless we use the work result commercially for its intended purpose (other than for testing purposes) for more than 30 consecutive calendar days. The latter shall not apply if the use is made in fulfilment of a duty to mitigate loss.

§ 11 Inspection for Defects, Warranty, Liability for Defects, Limitation Period for Claims due to Defects in Quality and Title; Administrative Flat Fee

1. The Supplier warrants and, within the scope of application of the United Nations Convention on Contracts for the International Sale of Goods (CISG), guarantees that (i) all deliveries/services fully comply with the agreed specifications and/or the contractual drawings, the state of the art at the time of conclusion of the contract, the relevant statutory provisions and the rules and guidelines of authorities, employers’ liability insurance associations and professional associations of the Federal Republic of Germany and the European Union, in particular, where applicable, the EU Machinery Directive, and the country of use notified before conclusion of the contract, and (ii) comply with the agreed specifications and the information in relevant manufacturer’s data sheets, and (iii) are suitable for the intended purpose notified by us to the Supplier before conclusion of the contract, and (iv) have the qualities customary for delivery items or services of the commissioned type.

The Supplier further warrants and, within the scope of application of the CISG, guarantees the environmental compatibility of the delivered products and the packaging materials. For items, the relevant statutory DIN standards and accident prevention regulations must be complied with and, where customary in trade, evidenced by test certificates.

The Supplier undertakes to comply with all statutory provisions and directives relevant to the delivery item and/or the contractual services. If compliance with technical rules and standards such as CE, CSA, or UL and EAC specifications is agreed for the products or their components, the Supplier shall provide evidence thereof and make it available to us together with invoicing as a due-date condition for the remuneration claim. In addition to the Supplier’s contractual obligations, the Supplier must, in particular, comply with these specifications so that customs requirements can be met.

2. We shall be entitled in full to the statutory defect rights and, within the scope of application of the CISG, the rights resulting therefrom in the event of defective delivery and/or performance.

3. If the delivered products do not comply with the warranty assumed by the Supplier or, within the scope of application of the CISG, the guarantee, the Supplier shall be liable for all resulting losses, including consequential losses, to the statutory extent.

4. In the event of a warranty case (breach of duty due to defective performance), the Supplier is obliged to bear all expenses necessary, reasonable and proven for the purpose of remedying the defect or making a replacement delivery. § 254 BGB (contributory negligence) remains unaffected. This also includes removal and reinstallation costs with respect to the delivery item. The Supplier shall also bear such costs that arise or increase because the delivery item has been moved to a place other than our premises. The place of subsequent performance shall be the place where the delivery item is located in accordance with its intended use at the time of the notice of defects.

5. We are entitled to verify and substantiate any quality or quantity deviation of the goods by taking meaningful samples, provided that this corresponds to the requirements of proper business practice and the nature and scope of the delivery.

6. If the Supplier is in delay with remedying a defect, we are entitled to demand a contractual penalty for delay in defect rectification in the amount of 0.5% of the net remuneration agreed for the defective delivery and/or performance for each completed period of 7 calendar days of delay, up to a maximum of 5% of the agreed net remuneration for the defective delivery/service, without further proof of loss. Further statutory and contractual claims and, within the scope of application of the CISG, the resulting rights on our part shall remain unaffected. The above contractual penalty shall be fully credited against any claim for damages. We may assert the contractual penalty within three months after becoming aware of the Supplier’s delay in defect rectification.

7. In the event of defects in title due to a culpable breach of duty by the Supplier or its vicarious agents, the Supplier shall indemnify us and our customers against third-party claims in this respect, including the costs of legal defence and our administrative costs. This indemnification obligation shall not apply insofar as the Supplier manufactured its delivery/service in accordance with documents provided by us, such as recipes, specifications, models or drawings, or upon our express instruction, and could not have known that this would infringe third-party rights.

8. If we take back products finished and/or sold by us as a result of the defectiveness of the delivery item supplied by the Supplier and/or we have otherwise been held liable for this reason, we shall be entitled to unrestricted recourse against the Supplier; in such case, the otherwise required setting of a deadline for the exercise of our defect rights shall no longer be necessary. § 254 BGB (contributory negligence) remains unaffected.

9. Our claims against the Supplier due to defects in quality shall become time-barred, in the case of purchase contracts, 36 months after transfer of risk, and in the case of contracts for work, 36 months after acceptance, unless a longer statutory limitation period for warranty claims applies. In the latter case, that longer period shall apply.

10. The limitation period for defects in title shall be 5 years, calculated from acceptance; if no acceptance is provided for, from delivery of the contractually owed performance result.

11. If the Supplier undertakes to examine the existence of a defect notified by us or to remedy the defect, the limitation period shall be suspended until the Supplier has notified us of the result of the examination in writing or in text form, or has declared to us in the aforementioned form that the defect has been completely remedied, or has refused to continue the remedy or the remedy itself in written form or in text form.

§ 12 Force Majeure

Force majeure, labour disputes, operational disruptions not attributable to us, unrest, epidemics, pandemics and other events unavoidable and unforeseeable for us entitle us—without prejudice to our other rights—to withdraw from the contract in whole or in part, provided that they are not of insignificant duration (i.e. do not last for less than 4 weeks) and result in a significant reduction of our demand (greater than 5%) and we notify the Supplier of the impediment without undue delay, unless we have assumed a guarantee liability.

§ 13 Product Liability, Indemnification, Public Liability Insurance Cover

1. If the Supplier is culpably responsible for product damage suffered by us, or by a third party to whom we have supplied the product delivered by the Supplier, it shall—unless expressly agreed otherwise—be obliged to indemnify us and our customers against all third-party claims for damages and reimbursement of expenses to the extent the cause lies within its sphere of control and organisation. The Supplier’s obligation to compensate includes, in addition to damages payable to third parties, customary and reasonable costs of legal defence (up to an hourly rate of EUR 300.00/hour plus any applicable VAT), recall costs, testing costs, and installation and removal costs. § 254 BGB (contributory negligence) remains unaffected.

2. Within the scope of its liability for cases of damage within the meaning of Clause 1, the Supplier shall also be obliged to reimburse any expenses arising out of or in connection with a recall campaign carried out by us. We will, insofar as possible and reasonably practicable in terms of time in relation to the danger to be eliminated, inform the Supplier in advance of the content and scope of the recall measures to be carried out and give it an opportunity to comment. Other statutory or contractual claims shall remain unaffected.

3. From the date of the first conclusion of a contract with us, the Supplier undertakes to maintain public liability insurance for a period up to 38 months after the last delivery and/or service to us with a minimum cover of EUR 5,000,000.00 per personal injury/property damage and EUR 1,000,000.00 for pure financial loss—lump sum; any further claims for damages to which we are entitled shall remain unaffected. The Supplier shall provide evidence of the above insurance and premium payment upon first request. If, upon our request, evidence of the insurance and premium payment is not provided within 7 calendar days, we are entitled to withdraw from contracts not yet performed in whole or in part (in respect of the part not yet performed).

§ 14 Rights of Use, Inventions

1. If, in the course of deliveries and/or services to be performed by the Supplier for us, recipes, drawings, customised IT programs, photo/film material, layouts for print media or other such documents and/or data and/or other work results arise, we shall receive an exclusive, unlimited (in time, territory and content), transferable right of use in all types of use, which is fully remunerated by the agreed price.

2. Insofar as the delivery/service results are protected by the Supplier’s copyrights, the Supplier grants us an irrevocable, transferable, unlimited (in time, territory and content) right to use the delivery/service free of charge in any manner in all known and unknown types of use, in particular to reproduce, distribute, exhibit, as well as to modify and edit.

3. Insofar as, in the course of deliveries and/or services to be performed by the Supplier for us, copyright usage rights, industrial property rights and/or other rights in performance results as well as other written, machine-readable and other work results arise, these shall belong to us exclusively and without restriction as part of the performance and are fully remunerated by the agreed price. The Supplier is obliged to inform us without undue delay in text form of the existence of such circumstances and to coordinate the further procedure with us.

4. The Supplier is further obliged, at its own expense and indemnifying us, to claim inventions made by its employees and, where applicable, sub-suppliers in such a way that it can transfer the rights to these inventions to us fully and in due time.

5. If we file the invention for protection as an industrial property right, we shall bear the costs incurred for filing and maintaining the right.

6. If we decide not to file inventions/work results for protection, or if we are no longer interested in an existing right, the Supplier may pursue filing or maintaining the right at its own expense. In such case, we shall retain a free-of-charge, non-exclusive, transferable, unlimited (in time) right of use.

7. If, in the course of our exploitation of the deliveries and/or services, use of the Supplier’s industrial property rights is required which already existed at the Supplier before performance of the delivery/service, we shall receive from the Supplier a non-exclusive, transferable, unlimited (in time) right of use in such industrial property rights, fully remunerated by the agreed price.

§ 15 Spare Parts and Availability of Supply

1. The Supplier warrants that it will ensure the supply of spare parts for a period corresponding to the ordinary technical useful life of the delivery item, but at least 10 years after delivery of the last delivery of the relevant delivery item to us, unless a different spare parts availability has been expressly agreed with us. During this period, the Supplier undertakes to supply these parts to us on market-standard economic and legal terms.

2. If the Supplier intends to discontinue the supply of spare parts for the delivery item after expiry of the above period, it must give us the opportunity to place a final order with a lead time of at least 90 calendar days; this final order must be able to correspond at least to the last average order quantities for the relevant product of the last three years.

§ 16 Provision of Materials, Co-ownership, Retention of Title

1. Raw materials, tools, materials, parts, containers and packaging provided by us may be used by the Supplier only for their intended purpose for the processing of the order placed by us with the Supplier. If passed on to sub-suppliers, the Supplier shall ensure the same vis-à-vis the sub-suppliers as a contract in our favour and shall provide us with evidence thereof without being requested.

2. Tools, recipes and packaging material provided by us shall remain our property, including where provided to the Supplier.

3. If we provide parts to the Supplier, we reserve title thereto (reserved goods). Processing or transformation by the Supplier shall be carried out for us. If our reserved goods are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the gross value of our item (purchase price plus VAT) to the other processed items at the time of processing.

4. If the item provided by us is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the gross value of the reserved item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the Supplier’s item is to be regarded as the principal item, it is agreed that the Supplier transfers co-ownership to us on a pro rata basis in the aforementioned ratio; the Supplier shall hold sole ownership or co-ownership in custody for us.

5. The Supplier is obliged, at replacement value and at its own expense, to insure the raw materials and tools belonging to us and made available to it against fire, water and theft damage. At the same time, the Supplier hereby assigns to us all claims for compensation arising from this insurance; we hereby accept the assignment.

6. The Supplier is also obliged to carry out any necessary maintenance and inspection work as well as all servicing and repair work on our tools made available to it, at its own expense and in good time, and to provide evidence of such performance to us. Any incidents affecting the machines and/or tools made available must be notified to us without undue delay in writing; if the Supplier culpably fails to do so, we shall be entitled to a claim for damages in the event of loss.

7. If the security rights to which we are entitled pursuant to Clauses 1 to 6 exceed the purchase price of all our reserved goods not yet paid by more than 10%, we shall, at the Supplier’s request, be obliged to release the security rights at our discretion.

§ 17 Third-Party Intellectual Property Rights

1. The Supplier warrants and, within the scope of application of the CISG, guarantees that no third-party rights within the Federal Republic of Germany and the European Union and the agreed delivery or country of use of the delivery item and/or the service are infringed in connection with its delivery and/or service. Except for the warranty liability provided for under the CSIG, liability shall be excluded if the supplier demonstrates that the infringement of rights resulted from specifications or instructions provided by us.

2. If we are claimed against by a third party due to a culpable infringement (outside the scope of application of the CISG) of such rights under Clause 1 by the Supplier, the Supplier is obliged, upon first written demand, to indemnify us against such claims insofar as the infringement is not based on our specification (e.g. a drawing/manufacturing instruction specified by us). § 254 BGB (contributory negligence) remains unaffected. We are not entitled to enter into any agreements with the third party—without the Supplier’s consent—in particular to conclude a settlement with the right holder.

3. The Supplier’s indemnification obligation shall cover all expenses necessarily incurred by us out of or in connection with the claim by a third party.

4. The limitation period for liability arising from infringement of intellectual property rights begins as soon as the claim has arisen and we have obtained knowledge of the circumstances giving rise to the claim or should have obtained such knowledge without gross negligence. The limitation period for such claims on our part shall be 5 years.

§ 18 Documents and Confidentiality

1. All commercial, technical or product-related information made accessible by us to the Supplier, recipes, specifications, calculation data, manufacturing instructions, recipes, production and other internal operational matters and data of any kind, including other development or manufacturing features manifested in writing, as samples, properties or as data, which may be derived from items, documents or data handed over by us or our vicarious agents to the Supplier, and other knowledge or experience communicated to the Supplier by us or our customers, as long as and insofar as they are not demonstrably publicly known or a statutory or official obligation to disclose exists, shall be kept confidential from third parties and may be made available within the Supplier’s own undertaking only to such persons who necessarily have to be involved for the purpose of delivery or service to us and who are also obliged in writing to maintain confidentiality; they remain exclusively our property. This applies irrespective of whether they constitute trade secrets within the meaning of § 2 GeschGehG or not. The provisions of the GeschGehG remain unaffected and, insofar as they are mandatory, shall take precedence over the above confidentiality provision.

2. . Without our prior express consent, such information may neither directly nor indirectly—except for deliveries to us—be reproduced or used commercially by the Supplier. The above confidentiality agreement shall also apply after termination of the delivery/service relationship until lawful public disclosure, but no longer than 5 years after termination of the contract processing between us and the Supplier in relation to the contract in connection with which the relevant information was disclosed or handed over to the Supplier. The above confidentiality obligation shall not apply insofar as the Supplier can prove that it developed the transmitted information itself in a lawful manner prior to disclosure, or that it already knew it (of which the Supplier shall notify us without undue delay after transmission of the information—at the latest within 14 calendar days thereafter—in writing or in text form; otherwise it can no longer rely on this exception), or that it has become publicly known by written declaration on our part, or that an official or statutory disclosure obligation exists.

3. Upon our request, all information and data originating from us (including, where applicable, copies or records made) and items provided on loan must be returned to us without undue delay and in full or destroyed, and the destruction must be confirmed in writing or in text form. If the information made available to the Supplier is embodied in data, such data must be completely deleted at any time upon our first request by overwriting, and the deletion must be confirmed in writing or in text form without undue delay.

4. In the case of data transmitted by us to the Supplier, we also have a right to demand that the Supplier provides us with a penalty-backed cease-and-desist declaration, which includes a contractual penalty for each culpable breach of the obligation to cease further use of the data transmitted by us or copies thereof, and of their return and/or deletion by the Supplier. The amount may be determined by us at equitable discretion (§ 315 BGB) in relation to the Supplier’s remuneration and the propensity of the breach to cause damage. Upon application by the Supplier, this may be reviewed and reduced by a court (§ 315 (3) BGB). The Supplier is not obliged to cease if it is subject to an official or statutory obligation to disclose or to use data.

5. We reserve all rights in such information and data (including copyrights and the right to apply for industrial property rights such as patents, utility models, trade marks, etc.). If such information and data were made accessible to us by third parties, this reservation of rights shall also apply for the benefit of such third parties.

6. No licences or warranties are associated with samples, models, information and/or data transmitted to the Supplier.

7. Products manufactured according to documents designed by us, e.g. recipes, drawings, samples or models and the like, or according to our confidential information, or with formulas not known to the public, or with our tools or replicated tools, may neither be used by the Supplier itself nor offered or supplied by the Supplier itself or via third parties to third parties.

§ 19 Safety Regulations and Other Requirements for Deliveries and Services

1. For its deliveries, the Supplier shall comply with the safety regulations applicable in the Federal Republic of Germany and the European Union and the agreed delivery or country of use, as well as the technical data/limit values corresponding to the state of the art at the time of conclusion of the contract or any agreed higher technical data/limit values, in its delivery/service.

2. The Supplier undertakes to use exclusively materials which comply with the respectively applicable, relevant statutory safety requirements and provisions within the European Union, in particular for toxic and hazardous substances and—where applicable—the EU REACH Regulation (Regulation (EC) 1907/2006). The same applies to protective provisions for the environment and regulations in connection with electricity and electromagnetic fields. The above obligation includes all relevant provisions applicable to the Federal Republic of Germany and the European Union and the country of use notified to the Supplier before conclusion of the contract in relation to the contractual delivery and/or service and—if different—also the provisions of the customer countries notified to the Supplier before or with the order. Upon first request, the Supplier shall provide evidence to us of compliance with these provisions and shall cooperate in providing corresponding evidence to the competent authorities.

3. If the Supplier’s products do not comply with the requirements set out in Clauses 1 and 2, we shall be entitled to withdraw from the contract. Any further claims for damages and reimbursement of expenses on our part shall remain unaffected.

4. Any intended changes to the subject matter of the delivery and service must be notified to us in writing or in text form. They require our prior written consent.

5. We point out that all persons not belonging to our undertaking who enter our operation or our premises are also subject to the rules of conduct of our works/site regulations. In the event of breaches of these rules, we reserve the right to expel such persons from the premises. If the Supplier performs activities on our premises on our behalf, it shall take all facilities, arrangements and measures necessary to prevent occupational accidents which comply with the provisions of the relevant accident prevention regulations and other generally recognised safety engineering and occupational medicine rules. The work guidelines of our employers’ liability insurance association, which we will be pleased to provide to the Supplier upon request, must be complied with when working on our premises.

§ 20 Quality and Documentation; Code of Conduct

1. The Supplier is obliged to carry out an outgoing goods inspection in accordance with the specifically warranted properties pursuant to DIN ISO 9001–9004.

Upon request, the Supplier shall provide us free of charge with the relevant IFS, BRC or FSSC 22000 reports. Unless otherwise expressly agreed, the Supplier shall bear the costs of declarations of conformity, certificates of origin and other certification evidence (e.g. where relevant ISO 9001, ISO 13485, CE, CSA or UL specifications). The declarations of conformity must be submitted to us with each delivery without undue delay, at our choice, in German and in English.

2. Irrespective of this, the Supplier shall ensure the quality of the delivery item and continuously inspect it up to delivery to us. The Supplier shall notify us without undue delay in writing or in text form of any errors in specifications recognisable to it and foreseeable complications resulting therefrom. This must be ensured and documented by suitable inspection and measurement procedures. We are entitled to request disclosure of the results of this inspection at any time and without additional costs in written form or in text form.

3. The scope of delivery includes product-specific and/or technical documentation, conformity certificates (in German and/or English at our choice) as well as other documents, certificates and operating instructions, product labels, warnings and further user information required for the ordered item or its use (in German and/or English at our choice), and the statutory marking required within the EU and the destination country communicated to the Supplier before conclusion of the contract for the delivery item and/or its packaging.

4. The Supplier shall ensure that precise traceability of the delivery items is guaranteed by means of batch numbers or serial numbers.

5. Our understanding of sustainability requires us, our suppliers and their subcontractors to manage their respective companies in an environmentally compatible, economically successful and socially supportive manner—in the interests of todays and future generations. For this purpose, the respective processes shall be continuously reviewed for potential improvements.

6. The Supplier is obliged to comply with the laws of the respectively applicable legal system(s). In particular, the Supplier shall neither actively nor passively, directly or indirectly, participate in any form of bribery, infringement of the fundamental rights of its employees, or child labour. Furthermore, the Supplier shall assume responsibility for the health and safety of its employees at the workplace, comply with environmental protection laws, and promote and require compliance with this code of conduct among its subcontractors to the best possible extent. Consequently, the Supplier shall apply and comply with the applicable ILO standards (International Labour Organisation) and the ETI Base Code (Ethical Trading Initiative).

If the Supplier culpably breaches any of these obligations, we shall, without prejudice to further claims, be entitled to withdraw from the contract or, in the case of continuing obligations, to terminate the contract. § 314 BGB (requirement of prior warning) remains unaffected.

§ 21 Software

1. If the delivery item contains software created for us, we shall receive, without any special additional remuneration, the source code and the right to use the software also in companies affiliated with us pursuant to § 15 AktG or otherwise connected under company law, to reproduce it as desired, to modify it and to make it available together with the delivery item to third parties worldwide free of charge or for consideration.

2. For the purpose of maintenance and further development, we are entitled to decompile (reverse translate) the above software. If the Supplier develops customised software for us, the source code shall be available to us for unrestricted use and exploitation at our discretion.

3. Remuneration for software shall only become due upon completion of a formal acceptance procedure with our written declaration of acceptance.

4. In the delivery of software, subsequent performance by means of a new programme version shall only be permissible with our prior express consent. If our consent is given, the Supplier shall be obliged, at its own expense, to instruct our employees in the new programme version free of charge.

§ 22 Auditing

1. We – and, as a true contract for the benefit of third parties within the meaning of § 328 BGB, also our customers (entitled to audit) – are entitled, but not obligated, to conduct an audit of the Supplier or have it conducted by an expert and/or consultant of our choice. This includes a review of the Supplier’s operations and quality assurance system followed by an evaluation. The Supplier shall ensure, within its legal possibilities, that its sub-suppliers grant us and our customers the same auditing right. The findings from this process will serve as the basis for further contract awards and for our internal classification of the Supplier’s operations (rating).

2. We and the audit entitled parties mentioned in Clause 1 are entitled to conduct announced inspections of the Supplier’s ongoing business operations and monitor quality assurance measures during regular business hours with prior notice.

3. We have the right to access the relevant documents and data of the Supplier if we can demonstrate a legitimate legal interest. Such legitimate interest exists particularly if this would allow insights that could assess the necessity and management of a product recall or product warning.

4. In exercising our rights as outlined in Clauses 1 to 3, the Supplier is not required to disclose trade secrets within the meaning of § 2 GesGehG (see § 9, Clause 3) unless a confidentiality agreement regarding the trade secrets in question under § 2 GesGehG has been offered in writing or in text form by the audit entitled party exercising the audit right.

§ 23 Minimum Wage

1. The Supplier undertakes to fully comply with the requirements of the Minimum Wage Act concerning its employees and ensures that the provisions of the Minimum Wage Act are also adhered to by any subcontractors employed.

2. If the Supplier culpably breaches any obligation under Clause 1, it is obliged to indemnify us against any third-party claims arising in this respect. In this case, we are entitled to withdraw from all contracts with the Supplier regarding the part of the contract not yet performed. The Supplier’s claims for the withdrawal are excluded. § 254 BGB (contributory negligence) remains unaffected.

3. The Supplier undertakes to promptly demonstrate compliance with the provisions of the Minimum Wage Act concerning its employees or employees of subcontractors by providing corresponding payroll evidence upon our first request. If the Supplier fails to do so for more than 30 calendar days, the provisions of Clause 2, Sentence 2, shall apply accordingly.

§ 24 Advertising Reference, Severability Clause, Jurisdiction, Choice of Law, Data Storage

1. Reference to the business relationship with us for advertising purposes or as a reference to third parties may only be made with our express consent.

2. Only the law of the Federal Republic of Germany shall apply. If the conditions of Articles 1 and 3 of the CISG are met, the provisions of the UN Sales Convention (CISG) shall apply.

3. The contractual, procedural, and court language shall be German if the legal proceedings are conducted in the Federal Republic of Germany.

4. The place of performance is the agreed delivery/performance location, or, if no such agreement exists, our registered office.

5. The exclusive place of jurisdiction, unless otherwise agreed below, is our business location. However, we are also entitled, at our discretion, to file a claim against the Supplier at its place of business or at the location of the performance.

6. We store data from the contractual relationship in accordance with § 26 of the German Federal Data Protection Act and the EU General Data Protection Regulation for the purpose of data processing.