General Purchasing Conditions

of ebility GmbH

1. General – Area of Application

1.1 Deliveries of products and services of any kind (particularly work performance or services) (hereinafter referred to as the “Deliveries”) are procured by us exclusively on these General Purchasing Conditions. General terms & conditions issued by the principal or supplier (hereinafter referred to as the “Supplier”) apply only in the event of express written confirmation by us. Neither a lack of objection nor payment or acceptance of the Deliveries
constitutes a recognition of third-party terms & conditions.

1.2 The Purchasing Conditions apply as a framework agreement also for future contracts concerning agreements with regard to Deliveries with the same Supplier, without us having to draw attention thereto again in every instance.

1.3 All agreements which are entered into between us and the Supplier for the purpose of executing this contract are to be recorded in writing.

 

2. Order – Order Confirmation, Offer Documents

2.1 The Supplier is obliged to confirm our order in writing without undue delay. If the order confirmation does not reach us within a period of 2 weeks from the date of placing the order, we reserve the right to cancel the order.

2.2 Orders can also be placed via delivery schedule requests. The quantity allocations named within the production release apply as fixed order items. Quantity allocations going beyond this are non-binding, insofar as nothing different is agreed upon in writing. Contrary order confirmations are invalid.

2.3 Illustrations, drawings, calculations, samples, models and other documents remain our property, and are to be kept confidential. They may not be made accessible to third parties without our express written consent. They are to be used exclusively for the production on the basis of our order; after executing the order, they are to be returned to us without request and free of cost.

2.4 The Supplier may only place sub-orders for the full or a significant production scope after obtaining our written consent.

 

3. Prices, Payment Terms, Assignment

3.1 The prices agreed upon when the order is placed are fixed prices and include all ancillary services necessary for contract performance. Delivery is made DDP (“free works” or “free place of use”) including recyclable packaging.

3.2 The respectively-valid VAT is not included in the price, and is to be shown separately in the invoice.

3.3 The invoices are to be submitted quoting the order number, order date and our materials number (if any) listed in the order, separate from the Deliveries; the Supplier is responsible for all of the consequences arising due to non-compliance with this obligation, insofar as it does not prove that these are not attributable to it.

3.4 If not agreed separately, we make payments within 60 days net after receipt of the invoice and after receipt of the materials and determination of due delivery.

3.5 Our payments do not entail any recognition of the contract conformity of the performance or correctness of the calculation.

3.6 We are entitled to set-off rights and rights of retention in the statutory scope.

 

4. Delivery

4.1 The delivery period given in the order/delivery request is binding, and – if no specific date is given – commences on the date on which the order is placed. What is authoritative for compliance with the delivery period is receipt of the goods by us or at the agreed place of use. In the case of Deliveries with assembly and/or installation, our acceptance is required for compliance with the period.

4.2 We can only take delivery at our facility on Mondays to Fridays from 8 am to 12.30 pm and 1.15 – 4.30 pm. In the event of non-compliance with these unloading times, delivery of the goods will be accepted only on the following unloading day. The costs arising as a result thereof are to be borne by the Supplier.

4.3 The Supplier is obliged to inform us in writing without undue delay if circumstances arise or become recognisable to it where the agreed delivery period cannot be complied with. Taking a late delivery entails no waiver of more extensive rights and claims; Moreover, the statutory regulation applies.

4.4 In the event of default in delivery, we are entitled to demand flat-rate compensation in the amount of 2% per working day of the default, but no more than 5% of the order value of the goods concerned. However, the Supplier is permitted to prove that we have suffered no loss at all or that our loss is significantly less than the flat-rate compensation demanded. Instead of the flat-rate compensation, we can rescind the contract and demand compensation of the loss which has actually arisen. More extensive statutory claims remain unaffected by this
provision.

4.5 The Supplier is obliged to fulfil and comply with 100% of the delivery scope. Excess or shortfall deliveries are permissible only with our express consent.

4.6 The delivery note is to name the valid index in addition to the drawing number.

4.7 Delivery is made without assembly or installation – insofar as nothing to the contrary is agreed upon in writing – at the Supplier’s expense and risk “free works” or “free place of use”. Delivery with assembly or installation or the rendering of services takes place in each instance “free place of use”; transfer of risk occurs upon acceptance.

 

5. Quality and Occupational Safety, Health and Environmental Protection

5.1 The Supplier is obliged to comply with our specifications, the recognised state-of-the-art technology, environmental and safety stipulations, any DIN norms, the agreed technical data and the agreements regarding the QM system as well as the UM system for its Deliveries. If required, our customer is to be granted a review of compliance at our Supplier after prior arrangement. The Supplier undertakes to comply with all statutory, environmental and safetyrelevant conditions in the manufacturer and purchaser country and to take account of the
prevailing conditions regarding environment, electricity and electromagnetic fields.

5.2 The goods delivered must fulfil the requirements laid down by all pertinent EU stipulations, particularly the respectively-current version of the RoHS Directive 2011/65/EU with the amendment of Appendix II pursuant to 2015/863/EU, the REACH Regulation 1907/2006, the Low Voltage Directive 2006/95/EC or its successor Directive 2014/35/EU, the Ecodesign Directive 2009/125/EC, the Machinery Directive 2006/42/EC as well as
Directive 2001/95/EC concerning general product safety. In the case of parts which do not fulfil the requirements, this must be shown in the first sample inspection report. It will be checked in the framework of the approval process whether approval can be granted.

5.3 Changes to the delivery item require our prior written consent.

5.4 Dispatch of the first serial delivery (including in the case of product changes) can only be
commenced once written approval of our review has been issued after initial sampling.

5.5 We are to be notified about health-threatening materials without request.

 

6. Acceptance Process

6.1 Insofar as the Supplier owes work performance or a work delivery concerning non-fungible items, formal acceptance is necessary, which requires an express declaration on our part. The acceptance obligation arising out of our delivery schedules is determined for manufactured contract items and the materials procured for them in accordance with the approval periods defined in the delivery requests. Manufacturing approval and the right regarding disposal of materials are postponed in each instance in accordance with the time interval if no change is
notified by us. Force majeure, industrial disputes, unrest, official measures, transport disruptions and other impediments which arise for us or our suppliers and customers, and which result in the limitation or cessation of our products, release us for the duration and in the scope of their effect from an acceptance or compensation obligation, insofar as we are unable to avert this impediment using reasonable means. This applies correspondingly for the Supplier’s obligations.

6.2 If the review of the Supplier’s performance requires commissioning or initial operation for testing purposes, then acceptance will take place only after successful completion of the testing.

6.3 Payments by us do not mean that the delivery has been accepted by us.

 

7. Notification of Defects

7.1 Our incoming check is limited to a quantity and identity check on the basis of the delivery papers as well as to checking for transport damage or other damage recognisable from the outside. Defects in the delivery are to be notified, as soon as they are discovered in the framework of this limited incoming check or later in the course of an ordinary business process, to the Supplier in writing without undue delay. In addition, the Supplier waives the
objection of late inspection and defect notification.

7.2 In the case of delivery to third parties, any inspection and complaint obligation is only incumbent upon the receipt of the goods, in the framework of section 7.1 hereof.

 

8. Quality Defects

8.1 The period of limitations for defect claims is 36 months, calculated from transfer of risk. In the case of delivery to locations where we execute our orders outside our facilities or workshops, the warranty period starts to run from delivery to or acceptance by our principal. This applies also for repaired parts or new parts delivered. If the Supplier checks the existence of a defect with our consent, or if the Supplier rectifies a defect, the running of the period of limitations for defect claims is suspended, commencing on the date of receipt by the Supplier of the defect notification, until the Supplier gives us final notification of the outcome of the check or declares the defect to have been rectified or refuses to continue rectification. Section 10.3 hereof remains unaffected thereby.

8.2 We are entitled to the statutory defect claims without reduction. We are entitled in particular to demand defect rectification or replacement delivery from the Supplier, as we choose. In such case, the Supplier is obliged to bear all of the expenditure necessary for the purpose of subsequent performance. In urgent cases – particularly in order to avert acute danger or to prevent greater damage – if the Supplier is tardy in the fulfilment of its obligations or if
subsequent performance has failed, we can have defects rectified at its expense or otherwise have ourselves supplied with flawless goods.

8.3 If we incur costs as a consequence of the defective delivery of the contract item, particularly transport costs, journey costs, labour costs, materials costs or costs of an incoming check which goes beyond the usual scope, then the Supplier is obliged to bear these costs.

 

9. Liability, Indemnification, Insurance Coverage

9.1 The Supplier is liable for all (direct and indirect) damage and losses which are suffered by us or a third party in connection with the use of the delivery unless the Supplier has not culpably caused the defect. Liability pursuant to the German Product Liability Act remains unaffected.

9.2 We are entitled to demand compensation from the Supplier of expenditure which we have to bear in the relationship with our customer because the latter has made a claim against us for compensation of the expenditure necessary for the purpose of the subsequent performance, particularly transport costs, distance costs, labour costs and materials costs.

9.3 If it is known to the Supplier that goods delivered will be sold on by us or Deliveries will continue to be used, and if the Supplier is aware in what country onward delivery or continued use will take place, then the Supplier indemnifies us against all claims which our customer can assert against us due to delivery of defective goods or other contractually-non-compliant delivery, be this on the basis of statutory provisions of substantive German law or be this on the basis of statutory provisions of substantive law in the country to which the goods are delivered. If our customer’s claim is based on a breach of obligation on our part or if the defect or the contractually-non-compliant delivery is not attributable to the Supplier for other reasons, no indemnification occurs.

9.4 In the cases set out in 9.2 and 9.3 hereof, time-barring occurs at the earliest two months after the date on which we fulfilled the claims made against us by our customer, but no later than five years after delivery by the Supplier.

9.5 The Supplier undertakes to maintain product-liability insurance with a reasonable coverage sum, and to prove this upon request. If we are entitled to more extensive compensation claims, these remain unaffected.

9.6 Insofar as the Supplier’s delivery is responsible for damage or loss, the Supplier is obliged to indemnify us against third-party compensation claims upon first demand insofar as the origin is in the Supplier’s sphere of control and organisation and the Supplier itself is liable in the external relationship. If we or our customer carry out measures to avert danger (e.g. recall campaign), the Supplier is liable insofar as the Supplier is legally obliged in this respect, and indemnifies us in this respect upon first demand.

9.7 We are entitled without restriction to our legally-defined recourse claims within a delivery chain (supplier recourse pursuant to § 445a, § 445b and § 478 of the German Civil Code (BGB)) in addition to the defect claims. In particular, we are entitled to demand precisely the type of subsequent performance (subsequent improvement or replacement delivery) from the Supplier which we owe our customer in the individual case. Our statutory selection right (§ 439.1 of the BGB) is not restricted thereby. Our claims arising out of supplier recourse apply even if the defective goods have been further processed by us or another contractor, e.g. by installing them into another productß

 

10. Third-Party Rights, Proprietary Rights, Defects in Title

10.1 The Supplier is responsible for ensuring that the use or onward sale of its performance is permissible without breaching third-party rights, including the industrial property rights and copyright.

10.2 The Supplier shall indemnify us upon first demand in the event of the breach of third-party rights against all of the claims which the third party makes on the basis of statutory provisions against us. This only applies for claims due to foreign statutory provisions if the Supplier is aware that we will be selling on the goods supplied by the Supplier and in what country, or in what country we will be using services rendered by the Supplier.

10.3 A ten-year period of limitations from transfer of risk applies with regard to defects in title.

 

11. Retention of Title, Provision

11.1 We recognise only the Supplier’s simple retention of title.

11.2 Insofar as we provide parts to the Supplier, we reserve the ownership rights therein. Processing or reshaping by the Supplier is done on our behalf. If our goods subject to retention of title are processed together with other items which do not belong to us, then we acquire co-ownership of the new item in the ratio of the value of our item to the value of the other items processed at the time of the processing.

11.3 If the item provided by us is inseparably combined with other items not belonging to us, then we acquire co-ownership of the new item in the ratio of the value of the item subject to retention of title to the value of the other items combined at the time of the combining. If the combining is done in such a way that the Supplier’s item is to be regarded as the main item, then it is deemed to be agreed that the Supplier transfers proportionate co-ownership
to us; the Supplier safeguards sole ownership or co-ownership on our behalf. 11.4 Insofar as the security rights to which we are entitled pursuant to 11.2 and/or 11.3 hereof exceed the purchase price of all of our unpaid goods which are subject to retention of title by more than 20%, then upon the Supplier’s request we are obliged to release corresponding security rights in accordance with our selection.

 

12. Production Means and Materials
In the event of the provision of production means and materials by us, the terms of a tool contract/tool-loan contract to be agreed upon separately will apply.

 

13. Supply Stipulations
Our separate stipulations (General Supply and Dispatch Rules for Suppliers), which we forward by means of a circular or if necessary to our suppliers, apply with regard to the supply.

 

14 Supplier Declarations, Proof of Origin, Export Checks

14.1 Separate supplier declarations pursuant to Regulation (EC) Nr. 1207/2001 with details about the country of origin and the customs tariff number are to be given for all goods delivered. If long-term supplier declarations are used, notice about changes to the information provided in the long-term supplier declaration must be given in a separate letter to our customs department. The obligation to make supplier declarations containing details about the country of origin and the customs tariff number also exists for goods delivered without preferential
origin.

14.2 For suppliers which are not domiciled in the EU, preferential origin evidence is to be presented without request. Autonomous origin certificates are to be presented upon request.

14.3 The Supplier undertakes to notify us about export permit obligations (inter alia national export list numbers as well as those for the USA) existing for all materials supplied. The notification is to be made together with the supplier declaration and/or the proof of origin directly to our customs department. The Supplier bears all of the disadvantageous consequences of any incomplete notification or failure to give notification. Information in other business papers is not permissible.

 

15. Place of Performance, Legal Venue, Applicable Law, CISG

15.1 The legal venue is Frankfurt am Main. We are also entitled to sue the Supplier at its general legal venue.

15.2 Insofar as nothing to the contrary arises from the order, our registered place of business or the use location desired by us is the place of performance.

15.3 Exclusively the substantive law of the Federal Republic of Germany applies for all legal relations between the Supplier and us; the CISG shall not apply. INCOTERMS in the currently-valid version shall apply for the interpretation of supply clauses.

15.4 If a provision of these Conditions is null and void for any reason, then the validity of the other provisions shall remain unaffected thereby. The contract partners are obliged to replace the invalid provision with a valid provision which comes as close as possible thereto in terms of economic success.

 

As of December 2021

 

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