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General Terms and Conditions of Purchase (Version 2017/01/01)

Clause 1 - Miscellaneous and area of application

(1) All deliveries, services and offers by any Supplier (hereinafter referred to as “Supplier”) to SUER Nutzfahrzeugtechnik GmbH & Co. KG (hereinafter referred to as “SUER”) are exclusively based on these General Terms and Conditions of Purchase. These form an integral part of all contracts which we conclude with our suppliers with regard to the deliveries or services offered by them. They also apply to all future deliveries, services or offers to SUER even if they are not separately agreed to again.

(2) The business terms and conditions of our suppliers or third parties do not apply even if we do not specifically contradict their validity in the individual case. Even if we refer to a letter which includes the Supplier’s or a third party’s business terms and conditions or make reference to the latter, this does not constitute an agreement with the validity of such business terms and conditions.

(3) For their effectiveness, supplements and changes to the agreements reached, including these General Terms and Conditions of Purchase, require the written form. With the exception of managing directors or any holder of a special statutory authority (“Prokurist”), employees of SUER are not entitled to make any verbal agreements that deviate from these General Terms and Conditions of Purchase.  transmission by telecommunication, in particular by fax or email, is sufficient to maintain the written form requirement provided the copy of the signed declaration is sent.

 

Clause 2 - Orders and contracts

(1) As far as our offers do not expressly include a commitment period, we are bound to the offer for three weeks from the date of the offer. The receipt of the declaration of acceptance by us is decisive for the timely acceptance. Call-offs become binding unless the Supplier contradicts them within two (2) weeks from receipt.

(2) Delivery agreements (order and acceptance) and call-offs, as well as their changes and supplements, require the written form (including fax). Call-offs may also take place by way of data transmission.

(3) If we can no longer use the ordered products in our business operation based on circumstances occurring after the conclusion of the contract, we are entitled to terminate the contract at any time by submitting a written declaration stating a reason. In this case, we will reimburse the Supplier for the partial service supplied.

 

Clause 3 - Prices and payment terms, invoice details

(1) The price specified in the order is binding.

(2) In the absence of any deviating written agreement, the price includes delivery and transport to the delivery address stated in the contract including packaging material.

(3) As far as the price does not include packaging material in terms of the agreement and the remuneration for packaging material – which is not only provided on a loan basis –, is not expressly defined, packaging material is to be charged at a verifiable cost price. On request, the Supplier shall take back packaging material at his expense.

(4) Provided nothing else is agreed to, we will pay the purchase price into the Supplier’s domestic bank account within 30 days with 3% discount or within 45 days net as from delivery of the goods and receipt of the invoice. The receipt of our transfer order at our bank shall suffice for the punctuality of payments owed by us.

(5) All order confirmations, delivery documents and invoices must state the order number, the article number, delivery quantity and delivery address. If any of the required information is missing, and thus results in a delay in the processing procedure within our normal course of business, the payment deadlines mentioned in para 4 will be extended by the corresponding period.

(6) Invoices are to be sent in duplicate whereby the original and the copy shall be clearly marked. Invoices may not accompany the goods. Orders/deliveries are to be settled individually according to the respective order.

 

Clause 4 Delivery period and delivery, transfer of risk

(1) The relevant delivery period (delivery date or deadline) stated in our order or otherwise in terms of these General Terms and Conditions of Purchase is binding. Premature deliveries are not permissible.

(2) The Supplier is obligated to immediately inform us if circumstances arise or are recognisable whereby the delivery period cannot be met.

(3) If the latest day on which the delivery should take place can be determined on the basis of the agreement, the Supplier shall be in delay as from the expiry of this date without the requirement of a reminder on our part.

(4) In the event of a delivery delay we are entitled to the unrestricted legal claims including the right of withdrawal and claim for damages instead of the service after the fruitless expiry of a reasonable period of grace.

(5) In the event of delivery delays we are entitled, after prior written threat vis-à-vis the Supplier, to demand a contractual penalty for each commenced week of the delivery delay of 0.5% –maximum 5% – of the relevant order value. The contractual penalty is to be taken into account with regard to the compensation due by the Supplier for the damage caused by the delay.

(6) Without our prior written approval, the Supplier is not entitled to carry out partial deliveries.

(7) Unless otherwise agreed, deliveries of goods are only carried out from Monday to Friday between 08:00 and 15:00. A forwarding advice must be sent to us before despatch. The goods must also be packed in a way that transport damages can be avoided. The use of reusable containers is only possible with SUER’s approval and free of charge for SUER.

(8) Even if the despatch was agreed, risk is only transferred to us when the goods are handed over at the agreed destination.

 

Clause 5 - Ownership protection

(1) We reserve the right of ownership and copyright on all orders, instructions as well as any drawings, illustrations, calculations, descriptions and other documents. The Supplier may not make them accessible to a third party or use them himself or allow them to be used by a third party or duplicate them without our express approval. The Supplier shall, at our request, return these documents to us if they are no longer required in the normal course of business or if negotiations do not lead to the conclusion of a contract. In this case, any copies made by the Supplier shall be destroyed; the only exception to this is the storage within the framework of statutory retention obligations as well as data retention for the purpose of data storage within the scope of customary data backup.

(2) Tools, devices and models which we provide to the Supplier, or which are manufactured for contractual purposes and for which the Supplier charges us separately, remain our property or will become our property. The Supplier is required to mark them as our property, to store them safely and to protect them against any kind of damage and only use them for the purpose of this agreement. In the absence of any other agreement, the costs of their maintenance and repair are shared equally by the contracting partners. However, as far as these costs can be attributed to the items manufactured by the Supplier, or an unprofessional use on the part of the Supplier, his employees or other vicarious agents, they are to be borne solely by the Supplier. The Supplier shall notify us immediately of all [and] not merely insignificant damages to these items. On request, the Supplier is obligated to surrender the items in a proper condition if they are no longer necessary to fulfil the contracts concluded with us.

(3) The Supplier’s rights of ownership are only applicable as far as they relate to our payment obligation for the relevant products to which the Supplier reserves the right of ownership. In particular, expanded or extended reservations of title are impermissible.

 

Clause 6 - Warranty and Supplier Regress

(1) As far as nothing else is determined below, legal provisions shall apply to our rights with regard to material defects and defects of title of the goods (including incorrect or short delivery as well as unprofessional assembly, defective assembly, the operating or instruction manual) and for any other breach of duty on the part of the Supplier.

(2) The warranty period is 24 months. For parts which are destined for the automobile industry, this deadline is valid from the time of the vehicle registration or the installation of parts; for agreed test operations, as far as these are carried out without complaint and recognised by SUER.

(3) In terms of legal provisions, the Supplier is in particular liable to ensure that the goods have the agreed quality at the time the risk is transferred to us. In any case, the agreement governing quality relates to those product descriptions which – in particular by way of depiction or reference in our order – are the subject of the relevant contract or are included in the contract in a manner similar to these General Terms and Conditions of Purchase. Hereby, it is irrelevant whether the product description originates from us, the Supplier or the manufacturer.

(4) In deviation to section 442 para. 1 page 2 Civil Code [BGB = Bürgerliches Gesetzbuch), we are entitled to unrestricted claims for defects even if, when concluding the contract, we are unaware of the defects as a result of gross negligence.

(5) The legal guidelines (sections 377, 381 Commercial Code [HGB Handelsgesetzbuch] shall apply to the commercial inspection and requirements to give notice of defects as follows: Our obligation is restricted to defects which are obvious when conducting the external examination during our incoming goods inspection, including the delivery documents, as well as during our randomly carried out quality control (e.g. transport damage, incorrect or short delivery). No examination obligation exists where an acceptance has been agreed. Apart from that, it depends on the extent to which an examination – in consideration of the circumstances of an individual case – is necessary in terms of an ordinary course of business.

Our obligation to notify defects discovered later on remains unaffected. In all cases, our notification of defects is deemed as being prompt and punctual if it is received by the Supplier within 10 (ten) working days.

(6) Costs incurred by the Supplier for the purpose of examination and supplementary performance (including possible disassembly and installation costs) are borne by the Supplier even if it becomes evident that there was actually no defect. Our liability for compensation for an unjustified request to remove damages remains unaffected; in this regard, we are, however, only liable if we have recognised or, due to gross negligence, were unable to recognise the existence of a defect.

(7) If the Supplier does not meet his obligation to provide supplementary performance – at our choice by either removing the defect (repair) or by the delivery of an item free of defects (replacement delivery) within a reasonable deadline set by us, – we are entitled to remove the defect ourselves and demand compensation from the Supplier for the necessary expenditure or a corresponding advance payment. There shall be no need to set a deadline if the supplementary performance by the Supplier fails or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or impending occurrence of disproportionate damage); where possible, we will notify the Supplier of such circumstances without delay.

(8) Apart from that, in terms of legal provisions, we are entitled to reduce the purchase price or withdraw from the contract in the event of material defects and defects of title. Furthermore, in terms of legal provisions, we are entitled to claim damages and reimbursement of expenses.

(9) Besides claims for defects, we are unrestrictedly entitled to the legally determined supplier regress within a supply chain (Supplier Regress in terms of sections 478, 479 Commercial Code). We are in particular entitled to demand exactly the type of supplementary performance (repair or replacement delivery) from the Supplier which we owe to our own buyer in an individual case. Our statutory right of choice (section 439 para 1 Commercial Code) is not restricted hereby.

(10) Prior to recognising or fulfilling a claim for defects asserted by our customer (including reimbursement of expenses in terms of section 478 para. 2, 439 para. 2 Commercial Code), we will notify the Supplier and give a brief description of the facts of the case and request a written statement. If the statement is not forthcoming within a reasonable deadline, and also no amicable solution is agreed, the actual claim for defects granted by us is deemed to be owed to our buyer; in this case, the Supplier is responsible to provide proof to the contrary.

(11) Our claims from supplier regress also apply if the goods were processed by us or by one of our buyers, for example by their installation into another product, prior to their sale to a consumer.

 

Clause 7 - Product Liability

(1) The Supplier is responsible for all claims asserted owing to personal injury or damage to property which can be attributed to a defective product delivered by the Supplier. The Supplier is obligated to indemnify us from any resultant liability. If we are under obligation to carry out a recall action vis-à-vis third parties due to a defect in a product delivered by the Supplier, the Supplier shall carry all the costs associated with the recall action.

(2) The Supplier is obligated, at his own expense, to maintain a product liability insurance with a cover of at least EUR 1,000,000.00 which, as far as this is not otherwise agreed in an individual case, is not required to cover a recall risk or criminal or similar damage. The Supplier will send a copy of the liability policy on request at any time.

 

Clause 8 - Protective rights

(1) In terms of paragraph 2, the Supplier is responsible to ensure that the products he delivers do not infringe on any protective rights of third parties in countries of the European Union or other countries in which he manufactures the products or has them manufactured. This applies in particular to trademarks, patent rights, design rights and copyrights.

(2) The Supplier is obligated to indemnify us from all claims asserted against us by third parties with regard to the infringements of intellectual property rights mentioned in paragraph 1 and to refund us all necessary expenses in connection with this claim. This entitlement exists irrespective of a culpability on the part of the Supplier.

(3) Our further legal claims with regard to defects of title relating to the products delivered to us remain unaffected.

 

Clause 9 - Spare parts

(1) For products delivered to us, the Supplier is obligated to make spare parts available for a period of at least six years after delivery.

(2) If the Supplier intends to terminate production of spare parts included in those products delivered to us, he will notify us immediately of the decision to discontinue the production. This decision must – subject to paragraph 1 – be made at least six months prior to the termination of production.

 

Clause 10 - Secrecy

(1) The Supplier is obligated to secrecy with regard to the conditions of the order as well as all the information and documents provided to him for this purpose (with the exception of information which is public knowledge) and only use the latter to execute the order. Once the enquiries have been settled or the orders have been processed, the Supplier will immediately return such information and documentation to us on request.

(2) The Supplier may not refer to our business relationship in advertising material, brochures etc. or delivery items manufactured for us without our prior written approval.

(3) Models, dies, templates, samples tools and other means of production, as well as confidential information which SUER KG provides to the Supplier or are fully paid for by SUER, may only be used for deliveries to third parties with SUER KG’s prior written approval. In all other cases, a delivery to third parties may only take place if this does not infringe on SUER’s industrial property rights / intellectual property rights (know-how). SUER is in principle willing, following prior agreement with the Supplier and against the payment of license fees, to permit a joint use of such industrial property rights / intellectual property rights (know-how).

(4) Means of production as described above, which are charged to SUER KG, become SUER KG’s property once they have been paid for. In this regard, all rights, in particular property rights and copyrights remain reserved. After the realization of this agreement, these means of production must be surrendered to SUER KG on request.

(5) In terms of this clause 10, the Supplier will accordingly impose this obligation on his sub-contractors.

 

Clause 11 - Assignment

The Supplier is not entitled to assign his claims arising from this contractual relationship to a third party. This does not apply as far as it concerns monetary claims. In this case, SUER can, at its own discretion, make a payment with a discharging effect to the Supplier or the third party.

 

Clause 12 - Quality Assurance and documentation

(1) For its deliveries, the Suppler shall comply with the recognised rules of technology, the safety regulations and the agreed technical data. Changes to the delivery item require SUER’s prior written approval. For the first-sample test, reference is made to the script “Securing quality of deliveries – supplier selection/production processes – and product release/quality performance in series”, Frankfurt am Main 1998. Irrespective thereof, the Supplier shall continuously check the quality of the delivery items. The contracting partners will mutually keep each other informed of the possibilities of quality improvement.

(2) If the Supplier and SUER KG have not agreed on the type and scope of the testing as well as test equipment and methods, SUER, at the Supplier’s request – within the scope of its knowledge, experience and capabilities – is willing to discuss the testing with the Supplier in order to determine the required standard of testing technology. Furthermore, on request, SUER will inform the Supplier of pertinent safety regulations.

(3) For those technical documents, or those for which there is a separate agreement, in particular, for example commercial vehicle parts marked with “D”, the Supplier shall furthermore keep a separate record as to when, and how and by whom the delivery items were tested with regards to the characteristics requiring documentation and the findings of these examinations. The test documents must be retained for a period of at least 15 years and presented to SUER on request. The Supplier shall impose these regulations on its sub-suppliers to the same extent within the scope of legal possibilities. The VDA Document "Furnishing evidence - Guidelines for documenting and archiving quality requirements", Frankfurt am Main 1998, should be referred to as a guide.

(4) As far as the authorities responsible for vehicle safety, exhaust regulations or the like, request to inspect the production process and SUER’s test documents to review certain requirements, the Supplier, at SUER’s request, declares his willingness to grant them the same rights in his company and to provide all reasonable support in this regard.

 

Clause 13 - Working in our plants

(1) All persons entering SUER’s plants to fulfil a delivery contract or the resultant obligations are subject to the provisions of SUER’s work regulations.

(2) SUER is only liable for any kind of accidents or damages in cases of intentional or gross negligence.

 

Clause 14 - Provisions

(1) SUER retains ownership to any material it may possibly provide to the Supplier. The Supplier processes or remodels on behalf of SUER. In the event of processing or mixing, SUER acquires co-ownership to the new item proportionate to the value of its [own] item to the other processed items at the time of processing.

(2) Materials provided by SUER must be stored separately and marked. They must be sufficiently insured against fire, water, theft and other cases of damage at the Supplier’s expense.

(3) The materials provided by SUER may only be used for their intended purpose.

(4) If the Supplier sells material that is owned by SUER he shall already now assign the claims arising from the sale against the purchaser with all ancillary rights to SUER. SUER accepts this assignment.

(5) The Supplier remains authorized to collect the claim. SUER’s authorization to personally collect the claim remains unaffected therefrom; however, SUER undertakes not to collect the claim as long as the Supplier properly meets his obligations.

(6) For well-justified reasons, the Supplier is, at SUER’s request, obligated to notify the purchaser of the assignment and to hand SUER the necessary documents to assert the claim.

(7) SUER will release the securities it holds insofar as the value of securities exceeds the secured claims by more than 20 percent.

 

Clause 15 - Final provisions

(1) If the Supplier is a merchant, a legal person under public law or a special fund under public law or does not have a general place of jurisdiction in the Federal Republic of Germany, Remscheid shall be the place of jurisdiction for all possible disputes arising from the business relationship between SUER and the Supplier. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this regulation.

(2) The relationships between SUER and the Supplier are exclusively subject to the law of the Federal Republic of Germany. The agreement of the United Nations governing the international sale of goods of 11 April 1980 (UN Convention on Contracts for the International Sale of Goods (CISG)) does not apply.

(3) Should this agreement or these General Terms and Conditions of Business contain lacunae, such effective regulations to fill these lacunae, which the contracting partners would have agreed in terms of the commercial intent of the agreement and for the purpose of these General Terms and Conditions of Business had they known of the lacuna, are deemed agreed.

 

Note:

The Supplier notes that SUER stores data in connection with the contractual relationship in terms of section 28 Federal Data Protection Act for the purpose of data processing and reserves the right to transfer these data to third parties (e.g. insurance companies), as far as they are required to fulfil the agreement.

 

Suer Nutzfahrzeugtechnik GmbH & Co. KG