GTCP

§ 1 Scope, Form

(1) These General Terms and Conditions of Purchase (“GTCP”) apply to all business relationships with our business partners and suppliers (“Seller”). The GTCP apply only if the Seller is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

(2) The GTCP apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GTCP in the version valid at the time of the Buyer’s order, or in any event in the version most recently communicated to the Seller in text form, shall also apply as a framework agreement to future contracts of the same type without our having to refer to them again in each individual case.

(3) These GTCP shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Seller shall become part of the contract only if and to the extent that we have expressly agreed to their applicability in writing. This requirement for consent shall apply in all cases, including, for example, where the Seller refers to its general terms and conditions in its order confirmation and we do not expressly object thereto.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information contained in our order shall take precedence over these GTCP. In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce (ICC) in Paris in the version applicable at the time the contract is concluded.

(5) Legally relevant declarations and notices by the Seller in relation to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing. For the purposes of these GTCP, “in writing” includes written form and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, particularly in cases of doubt regarding the authority of the person making the declaration, shall remain unaffected.

(6) References to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded by these GTCP.

§ 2 Conclusion of Contract

(1) Our order shall become binding no earlier than upon its written issuance or confirmation. The Seller shall notify us of obvious errors (e.g. typographical or calculation errors) and omissions in the order, including the order documents, for the purpose of correction or completion prior to acceptance; otherwise, the contract shall be deemed not to have been concluded.

(2) The Seller is required to confirm our order in writing within 10 calendar days or, in particular, to execute it unconditionally by dispatching the Goods (acceptance).

(3) Late acceptance shall be deemed a new offer and shall require acceptance by us.

§ 3 Delivery Time and Delay in Delivery

(1) The delivery time specified by us in the order is binding. If no delivery time is specified in the order and no delivery time has otherwise been agreed, the delivery period shall be 30 calendar days from conclusion of the contract. The Seller is obliged to notify us immediately in writing if, for whatever reason, it is likely to be unable to meet agreed delivery times.

(2) If the Seller fails to perform or fails to perform within the agreed delivery time, or if the Seller is in default, our rights – in particular the rights to withdraw from the contract and claim damages – shall be governed by the statutory provisions. Paragraph (3) shall remain unaffected.

(3) If the Seller is in default, we may – in addition to any further statutory claims – demand liquidated damages for delay amounting to 1% of the net price for each completed calendar week of delay, but not exceeding a total of 5% of the net price of the Goods delivered late. We reserve the right to prove that greater damage has occurred. The Seller reserves the right to prove that no damage or only substantially lower damage has occurred.

§ 4 Performance, Delivery, Transfer of Risk, Default of Acceptance

(1) Without our prior written consent, the Seller shall not be entitled to have the performance owed by it carried out by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for its performance unless otherwise agreed in an individual case (e.g. limitation to available stock).

(2) Deliveries within Germany shall be made “free domicile” to the place specified in the order. If the destination is not specified and nothing else has been agreed, delivery shall be made to our registered office in Stuttgart. The respective destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver at the creditor’s place of business).

(3) The delivery must be accompanied by a delivery note stating the date (date of issue and dispatch), the contents of the delivery (item number and quantity), and our order reference (date and number). If the delivery note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch notice containing the same information must be sent to us separately from the delivery note.

(4) The risk of accidental loss of or accidental deterioration of the Goods shall pass to us upon delivery at the place of performance. Where acceptance has been agreed, acceptance shall be decisive for the transfer of risk. In all other respects, the statutory provisions governing contracts for work and services shall apply accordingly where acceptance has been agreed. Delivery or acceptance shall be deemed to have occurred if we are in default of acceptance.

(5) The statutory provisions shall apply to our default of acceptance. However, the Seller must expressly offer its performance to us even if a specific or determinable calendar date has been agreed for an act or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may claim reimbursement of its additional expenses in accordance with the statutory provisions (Section 304 BGB). If the contract concerns a non-fungible item to be manufactured by the Seller (custom-made item), the Seller shall have further rights only if we have undertaken to cooperate and are responsible for the failure to cooperate.

§ 5 Prices and Terms of Payment

(1) The price stated in the order is binding. All prices include statutory value-added tax unless VAT is shown separately.

(2) Unless otherwise agreed in an individual case, the price shall include all services and ancillary services provided by the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).

(3) The agreed price shall be due for payment within 60 calendar days following complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller shall grant us a 3% cash discount on the net invoice amount. In the case of bank transfer, payment shall be deemed timely if our transfer instruction is received by our bank before expiry of the payment period; we shall not be responsible for delays caused by the banks involved in the payment process.

(4) We shall not owe interest from the due date. The statutory provisions shall apply in the event of late payment.

(5) We shall be entitled to rights of set-off and retention as well as the defence of non-performance to the extent provided by law. In particular, we shall be entitled to withhold payments due for as long as we have claims against the Seller arising from incomplete or defective performance.

(6) The Seller shall have a right of set-off or retention only in respect of counterclaims that have been finally adjudicated or are undisputed.

§ 6 Confidentiality and Retention of Title

(1) We retain ownership rights and copyrights in the illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents provided by us. Such documents shall be used exclusively for contractual performance and shall be returned to us upon completion of the contract. The documents shall be kept confidential vis-à-vis third parties, including after termination of the contract. The confidentiality obligation shall cease only if and to the extent that the knowledge contained in the documents provided has become generally known. Separate confidentiality agreements and statutory provisions on the protection of trade secrets shall remain unaffected.

(2) The foregoing provision shall apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as tools, templates, samples and other items provided by us to the Seller for manufacturing purposes. As long as such items have not been processed, they shall be stored separately at the Seller’s expense and adequately insured against destruction and loss.

(3) Any processing, mixing or combining (“Further Processing”) of items provided by us shall be carried out by the Seller on our behalf. The same shall apply where the Goods supplied are further processed by us, with the result that we shall be deemed the manufacturer and shall acquire ownership of the product, at the latest upon Further Processing, in accordance with the statutory provisions.

(4) Title to the Goods shall be transferred to us unconditionally and irrespective of payment of the price. However, if in an individual case we accept an offer by the Seller to transfer title subject to payment of the purchase price, the Seller’s retention of title shall expire no later than upon payment of the purchase price for the Goods supplied. In the ordinary course of business, we shall remain entitled to resell the Goods even before payment of the purchase price, subject to advance assignment of the resulting claim (alternatively, simple retention of title extended to resale shall apply). All other forms of retention of title are therefore excluded, in particular extended retention of title, passed-on retention of title and retention of title extended to Further Processing.

§ 7 Defective Delivery

(1) Our rights in the event of material defects and defects of title in the Goods (including incorrect and short deliveries as well as improper assembly/installation or defective instructions) and in the event of other breaches of duty by the Seller shall be governed by the statutory provisions and, exclusively in our favour, by the following supplements and clarifications.

(2) In accordance with the statutory provisions, the Seller shall in particular be liable for ensuring that the Goods have the agreed quality at the time the risk passes to us. In any event, product descriptions which – in particular by designation or reference in our order – form part of the respective contract or have been incorporated into the contract in the same manner as these GTCP shall be deemed agreements regarding quality. It shall make no difference whether the product description originates from us, the Seller or the manufacturer.

(3) In the case of Goods with digital elements or other digital content, the Seller shall be obliged to provide and update the digital content at least to the extent resulting from an agreement regarding quality pursuant to paragraph (2) or from other product descriptions issued by the manufacturer or on its behalf, particularly on the internet, in advertising or on the product label.

(4) At the time of conclusion of the contract, we shall not be obliged to inspect the Goods or make special enquiries regarding possible defects. Partly in derogation from Section 442 (1), sentence 2 BGB, we shall therefore be entitled to claims for defects without restriction even if, due to gross negligence, we were unaware of the defect at the time the contract was concluded.

(5) The statutory provisions (Sections 377, 381 of the German Commercial Code (HGB)) shall apply to the commercial duties of inspection and notification of defects, subject to the following: Our duty to inspect shall be limited to defects that are readily apparent during our incoming-goods inspection upon external examination, including the delivery documents (e.g. transport damage, incorrect or short deliveries), or that can be identified during our quality control by means of random sampling. Where acceptance has been agreed, there shall be no duty to inspect. Otherwise, the extent to which an inspection is feasible in the ordinary course of business shall depend on the circumstances of the individual case. Our duty to notify defects discovered at a later date shall remain unaffected. Irrespective of our duty to inspect, our notification of defects shall in any event be deemed immediate and timely if dispatched within 30 working days after discovery or, in the case of obvious defects, after delivery.

(6) Subsequent performance shall also include removal of the defective Goods and their reinstallation where, in accordance with their nature and intended purpose, the Goods were incorporated into or attached to another item before the defect became apparent; our statutory claim for reimbursement of the corresponding expenses (removal and installation costs) shall remain unaffected. The Seller shall bear the expenses required for inspection and subsequent performance, in particular transport, travel, labour and material costs as well as, where applicable, removal and installation costs, even if it transpires that no defect actually existed. Our liability for damages in the event of an unjustified request for rectification of defects shall remain unaffected; however, in this respect we shall be liable only if we knew or, due to gross negligence, failed to realise that no defect existed.

(7) Without prejudice to our statutory rights and the provisions of paragraph (5), the following shall apply: If the Seller fails to fulfil its obligation to provide subsequent performance – at our option by remedying the defect (repair) or delivering a defect-free item (replacement delivery) – within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the necessary expenses or an appropriate advance payment. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, a risk to operational safety or the threat of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without undue delay and, where possible, in advance.

(8) In all other respects, in the event of a material defect or defect of title, we shall be entitled under the statutory provisions to reduce the purchase price or withdraw from the contract. In addition, we shall be entitled to damages and reimbursement of expenses in accordance with the statutory provisions.

§ 8 Supplier Recourse

(1) Our statutory claims for reimbursement of expenses and recourse within a supply chain (supplier recourse pursuant to Sections 478, 445a, 445b and Sections 445c, 327 (5), 327 BGB) shall be available to us without restriction in addition to claims for defects. In particular, we shall be entitled to demand from the Seller precisely the type of subsequent performance (repair or replacement delivery) that we owe our customer in the individual case; in the case of Goods with digital elements or other digital content, this shall also apply with regard to the provision of necessary updates. Our statutory right of choice (Section 439 (1) BGB) shall not thereby be restricted.

(2) Before acknowledging or satisfying a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2), (3), (6) sentence 2, 475 (4) BGB), we shall notify the Seller, briefly describe the circumstances and request a written statement. If no substantiated statement is provided within a reasonable period and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to have been owed to our customer. In such case, the burden shall be on the Seller to prove otherwise.

(3) Our claims arising from supplier recourse shall also apply where the defective Goods have been combined with another product or otherwise further processed by us, our customer or a third party, e.g. by incorporation, attachment or installation.

§ 9 Product Liability

(1) If the Seller is responsible for product damage, the Seller shall indemnify us against third-party claims to the extent that the cause falls within the Seller’s sphere of control and organisation and the Seller itself is liable in relation to third parties.

(2) As part of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683 and 670 BGB arising from or in connection with claims asserted by third parties, including recall measures carried out by us. To the extent possible and reasonable, we shall inform the Seller of the content and scope of recall measures and give the Seller an opportunity to comment. Further statutory claims shall remain unaffected.

(3) The Seller shall maintain product liability insurance, including recall risk and replacement of defective parts, with coverage of at least EUR 10 million per occurrence/once per annum, and business liability insurance with coverage of at least EUR 5 million per occurrence/once per annum.

§ 10 Limitation Periods

(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions unless otherwise stipulated below.

(2) In derogation from Section 438 (1) no. 3 BGB, the general limitation period for claims for defects shall be three years from the transfer of risk. Where acceptance has been agreed, the limitation period shall commence upon acceptance. The three-year limitation period shall also apply accordingly to claims arising from defects of title, without prejudice to the statutory limitation period for third-party claims in rem for surrender pursuant to Section 438 (1) no. 1 BGB; moreover, claims arising from defects of title shall in no event become statute-barred for as long as the third party can still assert the right against us, in particular because the third party’s claim has not become statute-barred.

(3) The limitation periods under sales law, including the foregoing extension, shall apply – to the extent provided by law – to all contractual claims for defects. To the extent that we are also entitled to non-contractual claims for damages due to a defect, the standard statutory limitation period (Sections 195, 199 BGB) shall apply unless application of the limitation periods under sales law results in a longer limitation period in the individual case.

§ 11 Governing Law and Jurisdiction

(1) These GTCP and the contractual relationship between us and the Seller shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) If the Seller is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, our registered office in Stuttgart shall be the exclusive – including international – place of jurisdiction for all disputes arising from the contractual relationship. The same shall apply if the Seller is an entrepreneur within the meaning of Section 14 BGB. However, in all cases we shall also be entitled to bring proceedings at the place of performance of the delivery obligation pursuant to these GTCP or a prevailing individual agreement, or at the Seller’s general place of jurisdiction. Prevailing statutory provisions, in particular those governing exclusive jurisdiction, shall remain unaffected.

§ 1 Scope, Form

(1) These General Terms and Conditions of Purchase (“GTCP”) apply to all business relationships with our business partners and suppliers (“Seller”). The GTCP apply only if the Seller is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

(2) The GTCP apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GTCP in the version valid at the time of the Buyer’s order, or in any event in the version most recently communicated to the Seller in text form, shall also apply as a framework agreement to future contracts of the same type without our having to refer to them again in each individual case.

(3) These GTCP shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Seller shall become part of the contract only if and to the extent that we have expressly agreed to their applicability in writing. This requirement for consent shall apply in all cases, including, for example, where the Seller refers to its general terms and conditions in its order confirmation and we do not expressly object thereto.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information contained in our order shall take precedence over these GTCP. In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce (ICC) in Paris in the version applicable at the time the contract is concluded.

(5) Legally relevant declarations and notices by the Seller in relation to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing. For the purposes of these GTCP, “in writing” includes written form and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, particularly in cases of doubt regarding the authority of the person making the declaration, shall remain unaffected.

(6) References to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded by these GTCP.

§ 2 Conclusion of Contract

(1) Our order shall become binding no earlier than upon its written issuance or confirmation. The Seller shall notify us of obvious errors (e.g. typographical or calculation errors) and omissions in the order, including the order documents, for the purpose of correction or completion prior to acceptance; otherwise, the contract shall be deemed not to have been concluded.

(2) The Seller is required to confirm our order in writing within 10 calendar days or, in particular, to execute it unconditionally by dispatching the Goods (acceptance).

(3) Late acceptance shall be deemed a new offer and shall require acceptance by us.

§ 3 Delivery Time and Delay in Delivery

(1) The delivery time specified by us in the order is binding. If no delivery time is specified in the order and no delivery time has otherwise been agreed, the delivery period shall be 30 calendar days from conclusion of the contract. The Seller is obliged to notify us immediately in writing if, for whatever reason, it is likely to be unable to meet agreed delivery times.

(2) If the Seller fails to perform or fails to perform within the agreed delivery time, or if the Seller is in default, our rights – in particular the rights to withdraw from the contract and claim damages – shall be governed by the statutory provisions. Paragraph (3) shall remain unaffected.

(3) If the Seller is in default, we may – in addition to any further statutory claims – demand liquidated damages for delay amounting to 1% of the net price for each completed calendar week of delay, but not exceeding a total of 5% of the net price of the Goods delivered late. We reserve the right to prove that greater damage has occurred. The Seller reserves the right to prove that no damage or only substantially lower damage has occurred.

§ 4 Performance, Delivery, Transfer of Risk, Default of Acceptance

(1) Without our prior written consent, the Seller shall not be entitled to have the performance owed by it carried out by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for its performance unless otherwise agreed in an individual case (e.g. limitation to available stock).

(2) Deliveries within Germany shall be made “free domicile” to the place specified in the order. If the destination is not specified and nothing else has been agreed, delivery shall be made to our registered office in Stuttgart. The respective destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver at the creditor’s place of business).

(3) The delivery must be accompanied by a delivery note stating the date (date of issue and dispatch), the contents of the delivery (item number and quantity), and our order reference (date and number). If the delivery note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch notice containing the same information must be sent to us separately from the delivery note.

(4) The risk of accidental loss of or accidental deterioration of the Goods shall pass to us upon delivery at the place of performance. Where acceptance has been agreed, acceptance shall be decisive for the transfer of risk. In all other respects, the statutory provisions governing contracts for work and services shall apply accordingly where acceptance has been agreed. Delivery or acceptance shall be deemed to have occurred if we are in default of acceptance.

(5) The statutory provisions shall apply to our default of acceptance. However, the Seller must expressly offer its performance to us even if a specific or determinable calendar date has been agreed for an act or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may claim reimbursement of its additional expenses in accordance with the statutory provisions (Section 304 BGB). If the contract concerns a non-fungible item to be manufactured by the Seller (custom-made item), the Seller shall have further rights only if we have undertaken to cooperate and are responsible for the failure to cooperate.

§ 5 Prices and Terms of Payment

(1) The price stated in the order is binding. All prices include statutory value-added tax unless VAT is shown separately.

(2) Unless otherwise agreed in an individual case, the price shall include all services and ancillary services provided by the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).

(3) The agreed price shall be due for payment within 60 calendar days following complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller shall grant us a 3% cash discount on the net invoice amount. In the case of bank transfer, payment shall be deemed timely if our transfer instruction is received by our bank before expiry of the payment period; we shall not be responsible for delays caused by the banks involved in the payment process.

(4) We shall not owe interest from the due date. The statutory provisions shall apply in the event of late payment.

(5) We shall be entitled to rights of set-off and retention as well as the defence of non-performance to the extent provided by law. In particular, we shall be entitled to withhold payments due for as long as we have claims against the Seller arising from incomplete or defective performance.

(6) The Seller shall have a right of set-off or retention only in respect of counterclaims that have been finally adjudicated or are undisputed.

§ 6 Confidentiality and Retention of Title

(1) We retain ownership rights and copyrights in the illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents provided by us. Such documents shall be used exclusively for contractual performance and shall be returned to us upon completion of the contract. The documents shall be kept confidential vis-à-vis third parties, including after termination of the contract. The confidentiality obligation shall cease only if and to the extent that the knowledge contained in the documents provided has become generally known. Separate confidentiality agreements and statutory provisions on the protection of trade secrets shall remain unaffected.

(2) The foregoing provision shall apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as tools, templates, samples and other items provided by us to the Seller for manufacturing purposes. As long as such items have not been processed, they shall be stored separately at the Seller’s expense and adequately insured against destruction and loss.

(3) Any processing, mixing or combining (“Further Processing”) of items provided by us shall be carried out by the Seller on our behalf. The same shall apply where the Goods supplied are further processed by us, with the result that we shall be deemed the manufacturer and shall acquire ownership of the product, at the latest upon Further Processing, in accordance with the statutory provisions.

(4) Title to the Goods shall be transferred to us unconditionally and irrespective of payment of the price. However, if in an individual case we accept an offer by the Seller to transfer title subject to payment of the purchase price, the Seller’s retention of title shall expire no later than upon payment of the purchase price for the Goods supplied. In the ordinary course of business, we shall remain entitled to resell the Goods even before payment of the purchase price, subject to advance assignment of the resulting claim (alternatively, simple retention of title extended to resale shall apply). All other forms of retention of title are therefore excluded, in particular extended retention of title, passed-on retention of title and retention of title extended to Further Processing.

§ 7 Defective Delivery

(1) Our rights in the event of material defects and defects of title in the Goods (including incorrect and short deliveries as well as improper assembly/installation or defective instructions) and in the event of other breaches of duty by the Seller shall be governed by the statutory provisions and, exclusively in our favour, by the following supplements and clarifications.

(2) In accordance with the statutory provisions, the Seller shall in particular be liable for ensuring that the Goods have the agreed quality at the time the risk passes to us. In any event, product descriptions which – in particular by designation or reference in our order – form part of the respective contract or have been incorporated into the contract in the same manner as these GTCP shall be deemed agreements regarding quality. It shall make no difference whether the product description originates from us, the Seller or the manufacturer.

(3) In the case of Goods with digital elements or other digital content, the Seller shall be obliged to provide and update the digital content at least to the extent resulting from an agreement regarding quality pursuant to paragraph (2) or from other product descriptions issued by the manufacturer or on its behalf, particularly on the internet, in advertising or on the product label.

(4) At the time of conclusion of the contract, we shall not be obliged to inspect the Goods or make special enquiries regarding possible defects. Partly in derogation from Section 442 (1), sentence 2 BGB, we shall therefore be entitled to claims for defects without restriction even if, due to gross negligence, we were unaware of the defect at the time the contract was concluded.

(5) The statutory provisions (Sections 377, 381 of the German Commercial Code (HGB)) shall apply to the commercial duties of inspection and notification of defects, subject to the following: Our duty to inspect shall be limited to defects that are readily apparent during our incoming-goods inspection upon external examination, including the delivery documents (e.g. transport damage, incorrect or short deliveries), or that can be identified during our quality control by means of random sampling. Where acceptance has been agreed, there shall be no duty to inspect. Otherwise, the extent to which an inspection is feasible in the ordinary course of business shall depend on the circumstances of the individual case. Our duty to notify defects discovered at a later date shall remain unaffected. Irrespective of our duty to inspect, our notification of defects shall in any event be deemed immediate and timely if dispatched within 30 working days after discovery or, in the case of obvious defects, after delivery.

(6) Subsequent performance shall also include removal of the defective Goods and their reinstallation where, in accordance with their nature and intended purpose, the Goods were incorporated into or attached to another item before the defect became apparent; our statutory claim for reimbursement of the corresponding expenses (removal and installation costs) shall remain unaffected. The Seller shall bear the expenses required for inspection and subsequent performance, in particular transport, travel, labour and material costs as well as, where applicable, removal and installation costs, even if it transpires that no defect actually existed. Our liability for damages in the event of an unjustified request for rectification of defects shall remain unaffected; however, in this respect we shall be liable only if we knew or, due to gross negligence, failed to realise that no defect existed.

(7) Without prejudice to our statutory rights and the provisions of paragraph (5), the following shall apply: If the Seller fails to fulfil its obligation to provide subsequent performance – at our option by remedying the defect (repair) or delivering a defect-free item (replacement delivery) – within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the necessary expenses or an appropriate advance payment. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, a risk to operational safety or the threat of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without undue delay and, where possible, in advance.

(8) In all other respects, in the event of a material defect or defect of title, we shall be entitled under the statutory provisions to reduce the purchase price or withdraw from the contract. In addition, we shall be entitled to damages and reimbursement of expenses in accordance with the statutory provisions.

§ 8 Supplier Recourse

(1) Our statutory claims for reimbursement of expenses and recourse within a supply chain (supplier recourse pursuant to Sections 478, 445a, 445b and Sections 445c, 327 (5), 327 BGB) shall be available to us without restriction in addition to claims for defects. In particular, we shall be entitled to demand from the Seller precisely the type of subsequent performance (repair or replacement delivery) that we owe our customer in the individual case; in the case of Goods with digital elements or other digital content, this shall also apply with regard to the provision of necessary updates. Our statutory right of choice (Section 439 (1) BGB) shall not thereby be restricted.

(2) Before acknowledging or satisfying a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2), (3), (6) sentence 2, 475 (4) BGB), we shall notify the Seller, briefly describe the circumstances and request a written statement. If no substantiated statement is provided within a reasonable period and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to have been owed to our customer. In such case, the burden shall be on the Seller to prove otherwise.

(3) Our claims arising from supplier recourse shall also apply where the defective Goods have been combined with another product or otherwise further processed by us, our customer or a third party, e.g. by incorporation, attachment or installation.

§ 9 Product Liability

(1) If the Seller is responsible for product damage, the Seller shall indemnify us against third-party claims to the extent that the cause falls within the Seller’s sphere of control and organisation and the Seller itself is liable in relation to third parties.

(2) As part of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683 and 670 BGB arising from or in connection with claims asserted by third parties, including recall measures carried out by us. To the extent possible and reasonable, we shall inform the Seller of the content and scope of recall measures and give the Seller an opportunity to comment. Further statutory claims shall remain unaffected.

(3) The Seller shall maintain product liability insurance, including recall risk and replacement of defective parts, with coverage of at least EUR 10 million per occurrence/once per annum, and business liability insurance with coverage of at least EUR 5 million per occurrence/once per annum.

§ 10 Limitation Periods

(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions unless otherwise stipulated below.

(2) In derogation from Section 438 (1) no. 3 BGB, the general limitation period for claims for defects shall be three years from the transfer of risk. Where acceptance has been agreed, the limitation period shall commence upon acceptance. The three-year limitation period shall also apply accordingly to claims arising from defects of title, without prejudice to the statutory limitation period for third-party claims in rem for surrender pursuant to Section 438 (1) no. 1 BGB; moreover, claims arising from defects of title shall in no event become statute-barred for as long as the third party can still assert the right against us, in particular because the third party’s claim has not become statute-barred.

(3) The limitation periods under sales law, including the foregoing extension, shall apply – to the extent provided by law – to all contractual claims for defects. To the extent that we are also entitled to non-contractual claims for damages due to a defect, the standard statutory limitation period (Sections 195, 199 BGB) shall apply unless application of the limitation periods under sales law results in a longer limitation period in the individual case.

§ 11 Governing Law and Jurisdiction

(1) These GTCP and the contractual relationship between us and the Seller shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) If the Seller is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, our registered office in Stuttgart shall be the exclusive – including international – place of jurisdiction for all disputes arising from the contractual relationship. The same shall apply if the Seller is an entrepreneur within the meaning of Section 14 BGB. However, in all cases we shall also be entitled to bring proceedings at the place of performance of the delivery obligation pursuant to these GTCP or a prevailing individual agreement, or at the Seller’s general place of jurisdiction. Prevailing statutory provisions, in particular those governing exclusive jurisdiction, shall remain unaffected.

§ 1 Scope, Form

(1) These General Terms and Conditions of Purchase (“GTCP”) apply to all business relationships with our business partners and suppliers (“Seller”). The GTCP apply only if the Seller is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

(2) The GTCP apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GTCP in the version valid at the time of the Buyer’s order, or in any event in the version most recently communicated to the Seller in text form, shall also apply as a framework agreement to future contracts of the same type without our having to refer to them again in each individual case.

(3) These GTCP shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Seller shall become part of the contract only if and to the extent that we have expressly agreed to their applicability in writing. This requirement for consent shall apply in all cases, including, for example, where the Seller refers to its general terms and conditions in its order confirmation and we do not expressly object thereto.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information contained in our order shall take precedence over these GTCP. In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce (ICC) in Paris in the version applicable at the time the contract is concluded.

(5) Legally relevant declarations and notices by the Seller in relation to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing. For the purposes of these GTCP, “in writing” includes written form and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, particularly in cases of doubt regarding the authority of the person making the declaration, shall remain unaffected.

(6) References to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded by these GTCP.

§ 2 Conclusion of Contract

(1) Our order shall become binding no earlier than upon its written issuance or confirmation. The Seller shall notify us of obvious errors (e.g. typographical or calculation errors) and omissions in the order, including the order documents, for the purpose of correction or completion prior to acceptance; otherwise, the contract shall be deemed not to have been concluded.

(2) The Seller is required to confirm our order in writing within 10 calendar days or, in particular, to execute it unconditionally by dispatching the Goods (acceptance).

(3) Late acceptance shall be deemed a new offer and shall require acceptance by us.

§ 3 Delivery Time and Delay in Delivery

(1) The delivery time specified by us in the order is binding. If no delivery time is specified in the order and no delivery time has otherwise been agreed, the delivery period shall be 30 calendar days from conclusion of the contract. The Seller is obliged to notify us immediately in writing if, for whatever reason, it is likely to be unable to meet agreed delivery times.

(2) If the Seller fails to perform or fails to perform within the agreed delivery time, or if the Seller is in default, our rights – in particular the rights to withdraw from the contract and claim damages – shall be governed by the statutory provisions. Paragraph (3) shall remain unaffected.

(3) If the Seller is in default, we may – in addition to any further statutory claims – demand liquidated damages for delay amounting to 1% of the net price for each completed calendar week of delay, but not exceeding a total of 5% of the net price of the Goods delivered late. We reserve the right to prove that greater damage has occurred. The Seller reserves the right to prove that no damage or only substantially lower damage has occurred.

§ 4 Performance, Delivery, Transfer of Risk, Default of Acceptance

(1) Without our prior written consent, the Seller shall not be entitled to have the performance owed by it carried out by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for its performance unless otherwise agreed in an individual case (e.g. limitation to available stock).

(2) Deliveries within Germany shall be made “free domicile” to the place specified in the order. If the destination is not specified and nothing else has been agreed, delivery shall be made to our registered office in Stuttgart. The respective destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver at the creditor’s place of business).

(3) The delivery must be accompanied by a delivery note stating the date (date of issue and dispatch), the contents of the delivery (item number and quantity), and our order reference (date and number). If the delivery note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch notice containing the same information must be sent to us separately from the delivery note.

(4) The risk of accidental loss of or accidental deterioration of the Goods shall pass to us upon delivery at the place of performance. Where acceptance has been agreed, acceptance shall be decisive for the transfer of risk. In all other respects, the statutory provisions governing contracts for work and services shall apply accordingly where acceptance has been agreed. Delivery or acceptance shall be deemed to have occurred if we are in default of acceptance.

(5) The statutory provisions shall apply to our default of acceptance. However, the Seller must expressly offer its performance to us even if a specific or determinable calendar date has been agreed for an act or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may claim reimbursement of its additional expenses in accordance with the statutory provisions (Section 304 BGB). If the contract concerns a non-fungible item to be manufactured by the Seller (custom-made item), the Seller shall have further rights only if we have undertaken to cooperate and are responsible for the failure to cooperate.

§ 5 Prices and Terms of Payment

(1) The price stated in the order is binding. All prices include statutory value-added tax unless VAT is shown separately.

(2) Unless otherwise agreed in an individual case, the price shall include all services and ancillary services provided by the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).

(3) The agreed price shall be due for payment within 60 calendar days following complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller shall grant us a 3% cash discount on the net invoice amount. In the case of bank transfer, payment shall be deemed timely if our transfer instruction is received by our bank before expiry of the payment period; we shall not be responsible for delays caused by the banks involved in the payment process.

(4) We shall not owe interest from the due date. The statutory provisions shall apply in the event of late payment.

(5) We shall be entitled to rights of set-off and retention as well as the defence of non-performance to the extent provided by law. In particular, we shall be entitled to withhold payments due for as long as we have claims against the Seller arising from incomplete or defective performance.

(6) The Seller shall have a right of set-off or retention only in respect of counterclaims that have been finally adjudicated or are undisputed.

§ 6 Confidentiality and Retention of Title

(1) We retain ownership rights and copyrights in the illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents provided by us. Such documents shall be used exclusively for contractual performance and shall be returned to us upon completion of the contract. The documents shall be kept confidential vis-à-vis third parties, including after termination of the contract. The confidentiality obligation shall cease only if and to the extent that the knowledge contained in the documents provided has become generally known. Separate confidentiality agreements and statutory provisions on the protection of trade secrets shall remain unaffected.

(2) The foregoing provision shall apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as tools, templates, samples and other items provided by us to the Seller for manufacturing purposes. As long as such items have not been processed, they shall be stored separately at the Seller’s expense and adequately insured against destruction and loss.

(3) Any processing, mixing or combining (“Further Processing”) of items provided by us shall be carried out by the Seller on our behalf. The same shall apply where the Goods supplied are further processed by us, with the result that we shall be deemed the manufacturer and shall acquire ownership of the product, at the latest upon Further Processing, in accordance with the statutory provisions.

(4) Title to the Goods shall be transferred to us unconditionally and irrespective of payment of the price. However, if in an individual case we accept an offer by the Seller to transfer title subject to payment of the purchase price, the Seller’s retention of title shall expire no later than upon payment of the purchase price for the Goods supplied. In the ordinary course of business, we shall remain entitled to resell the Goods even before payment of the purchase price, subject to advance assignment of the resulting claim (alternatively, simple retention of title extended to resale shall apply). All other forms of retention of title are therefore excluded, in particular extended retention of title, passed-on retention of title and retention of title extended to Further Processing.

§ 7 Defective Delivery

(1) Our rights in the event of material defects and defects of title in the Goods (including incorrect and short deliveries as well as improper assembly/installation or defective instructions) and in the event of other breaches of duty by the Seller shall be governed by the statutory provisions and, exclusively in our favour, by the following supplements and clarifications.

(2) In accordance with the statutory provisions, the Seller shall in particular be liable for ensuring that the Goods have the agreed quality at the time the risk passes to us. In any event, product descriptions which – in particular by designation or reference in our order – form part of the respective contract or have been incorporated into the contract in the same manner as these GTCP shall be deemed agreements regarding quality. It shall make no difference whether the product description originates from us, the Seller or the manufacturer.

(3) In the case of Goods with digital elements or other digital content, the Seller shall be obliged to provide and update the digital content at least to the extent resulting from an agreement regarding quality pursuant to paragraph (2) or from other product descriptions issued by the manufacturer or on its behalf, particularly on the internet, in advertising or on the product label.

(4) At the time of conclusion of the contract, we shall not be obliged to inspect the Goods or make special enquiries regarding possible defects. Partly in derogation from Section 442 (1), sentence 2 BGB, we shall therefore be entitled to claims for defects without restriction even if, due to gross negligence, we were unaware of the defect at the time the contract was concluded.

(5) The statutory provisions (Sections 377, 381 of the German Commercial Code (HGB)) shall apply to the commercial duties of inspection and notification of defects, subject to the following: Our duty to inspect shall be limited to defects that are readily apparent during our incoming-goods inspection upon external examination, including the delivery documents (e.g. transport damage, incorrect or short deliveries), or that can be identified during our quality control by means of random sampling. Where acceptance has been agreed, there shall be no duty to inspect. Otherwise, the extent to which an inspection is feasible in the ordinary course of business shall depend on the circumstances of the individual case. Our duty to notify defects discovered at a later date shall remain unaffected. Irrespective of our duty to inspect, our notification of defects shall in any event be deemed immediate and timely if dispatched within 30 working days after discovery or, in the case of obvious defects, after delivery.

(6) Subsequent performance shall also include removal of the defective Goods and their reinstallation where, in accordance with their nature and intended purpose, the Goods were incorporated into or attached to another item before the defect became apparent; our statutory claim for reimbursement of the corresponding expenses (removal and installation costs) shall remain unaffected. The Seller shall bear the expenses required for inspection and subsequent performance, in particular transport, travel, labour and material costs as well as, where applicable, removal and installation costs, even if it transpires that no defect actually existed. Our liability for damages in the event of an unjustified request for rectification of defects shall remain unaffected; however, in this respect we shall be liable only if we knew or, due to gross negligence, failed to realise that no defect existed.

(7) Without prejudice to our statutory rights and the provisions of paragraph (5), the following shall apply: If the Seller fails to fulfil its obligation to provide subsequent performance – at our option by remedying the defect (repair) or delivering a defect-free item (replacement delivery) – within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the necessary expenses or an appropriate advance payment. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, a risk to operational safety or the threat of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without undue delay and, where possible, in advance.

(8) In all other respects, in the event of a material defect or defect of title, we shall be entitled under the statutory provisions to reduce the purchase price or withdraw from the contract. In addition, we shall be entitled to damages and reimbursement of expenses in accordance with the statutory provisions.

§ 8 Supplier Recourse

(1) Our statutory claims for reimbursement of expenses and recourse within a supply chain (supplier recourse pursuant to Sections 478, 445a, 445b and Sections 445c, 327 (5), 327 BGB) shall be available to us without restriction in addition to claims for defects. In particular, we shall be entitled to demand from the Seller precisely the type of subsequent performance (repair or replacement delivery) that we owe our customer in the individual case; in the case of Goods with digital elements or other digital content, this shall also apply with regard to the provision of necessary updates. Our statutory right of choice (Section 439 (1) BGB) shall not thereby be restricted.

(2) Before acknowledging or satisfying a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2), (3), (6) sentence 2, 475 (4) BGB), we shall notify the Seller, briefly describe the circumstances and request a written statement. If no substantiated statement is provided within a reasonable period and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to have been owed to our customer. In such case, the burden shall be on the Seller to prove otherwise.

(3) Our claims arising from supplier recourse shall also apply where the defective Goods have been combined with another product or otherwise further processed by us, our customer or a third party, e.g. by incorporation, attachment or installation.

§ 9 Product Liability

(1) If the Seller is responsible for product damage, the Seller shall indemnify us against third-party claims to the extent that the cause falls within the Seller’s sphere of control and organisation and the Seller itself is liable in relation to third parties.

(2) As part of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683 and 670 BGB arising from or in connection with claims asserted by third parties, including recall measures carried out by us. To the extent possible and reasonable, we shall inform the Seller of the content and scope of recall measures and give the Seller an opportunity to comment. Further statutory claims shall remain unaffected.

(3) The Seller shall maintain product liability insurance, including recall risk and replacement of defective parts, with coverage of at least EUR 10 million per occurrence/once per annum, and business liability insurance with coverage of at least EUR 5 million per occurrence/once per annum.

§ 10 Limitation Periods

(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions unless otherwise stipulated below.

(2) In derogation from Section 438 (1) no. 3 BGB, the general limitation period for claims for defects shall be three years from the transfer of risk. Where acceptance has been agreed, the limitation period shall commence upon acceptance. The three-year limitation period shall also apply accordingly to claims arising from defects of title, without prejudice to the statutory limitation period for third-party claims in rem for surrender pursuant to Section 438 (1) no. 1 BGB; moreover, claims arising from defects of title shall in no event become statute-barred for as long as the third party can still assert the right against us, in particular because the third party’s claim has not become statute-barred.

(3) The limitation periods under sales law, including the foregoing extension, shall apply – to the extent provided by law – to all contractual claims for defects. To the extent that we are also entitled to non-contractual claims for damages due to a defect, the standard statutory limitation period (Sections 195, 199 BGB) shall apply unless application of the limitation periods under sales law results in a longer limitation period in the individual case.

§ 11 Governing Law and Jurisdiction

(1) These GTCP and the contractual relationship between us and the Seller shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) If the Seller is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, our registered office in Stuttgart shall be the exclusive – including international – place of jurisdiction for all disputes arising from the contractual relationship. The same shall apply if the Seller is an entrepreneur within the meaning of Section 14 BGB. However, in all cases we shall also be entitled to bring proceedings at the place of performance of the delivery obligation pursuant to these GTCP or a prevailing individual agreement, or at the Seller’s general place of jurisdiction. Prevailing statutory provisions, in particular those governing exclusive jurisdiction, shall remain unaffected.