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Terms and Conditions of Purchase of Alfra GmbH

1. Scope

These terms and conditions of purchase apply exclusively to these as well as to future deliveries and services of the supplier. These terms and conditions of purchase shall only apply if the supplier is an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law. Conflicting or deviating general terms and conditions of business will not be recognised by us, unless we have expressly agreed to their validity in writing. Our terms and conditions of purchase shall also apply if we accept or pay for deliveries of products and services of the supplier (hereinafter referred to as the contractual object) in the knowledge that the terms and conditions of the supplier are conflicting or deviate from our terms and conditions of purchase.

Individual agreements made with the supplier on a case-by-case basis (including ancillary agreements, additions and amendments) shall in all cases take precedence over these terms and conditions of purchase. The content of such agreements is governed by a written contract or our written confirmation.

Legally relevant declarations and notices, which are to be submitted to us by the supplier after conclusion of the contract (e.g. deadlines, reminders, declaration of withdrawal), must be made in writing in order to be effective.

References to the application of legal provisions are for the purposes of clarification only. Therefore, even without such clarification, the statutory provisions apply, insofar as they are not directly amended or expressly excluded in these terms and condition of purchase.

2. Conclusion of the contract

Our order shall be deemed binding at the earliest upon its written submission or confirmation. The supplier must inform us of obvious errors (e.g. typing and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before acceptance; otherwise, the contract shall be deemed not to have been concluded.

The supplier is required to confirm our order in writing within a period of 2 weeks or, in particular, to execute it without reservation by sending the goods (acceptance).

A late acceptance is considered a new offer and requires acceptance by us.

3. Prices

The price stated in the order is binding. Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including possible transport and liability insurance).

4. Payment, set-off, etc.

Payment is made 14 days after receipt of the invoice, with a deduction of a 3% discount or 60 days net after receipt of the invoice. In the event of acceptance of an early delivery, the agreed date shall be deemed to be the delivery date. The contractor is not entitled to assign its claims against us or to have them redeemed by third parties without our consent.

5. Place of performance, deliveries, packaging

Deliveries from free circulation within Europe are provided DDP, in the case of cross-border deliveries from third countries DAP, to the delivery address (INCOTERMS 2010) specified in our order. The supplier thus bears the material risk until the goods are accepted by us or our representative at the agreed destination. If the destination is not specified and nothing else has been agreed, the delivery must be made to our registered office in Hockenheim. The respective destination is also the place of performance (debt to be discharged at creditor’s domicile). Insofar as acceptance has been agreed, this is decisive for the transfer of risk. In addition, the statutory provisions of the contract for work and labour law shall also apply accordingly in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance. For quantities, weights and dimensions, the values determined by us during the goods receipt inspection are decisive, subject to other proof.

The supplier undertakes to use environmentally friendly packaging that allows re-use or cost-effective disposal. The packaging should ensure protection against damage, contamination and moisture during transport and storage, so that the assembly can be carried out at our premises without any additional outlay. All the instructions important for the content, storage and transport must be visible on the packaging.

If the supplier has assumed responsibility for the installation or assembly, it bears all necessary expenses such as travel expenses, provision of tools and daily allowances.

Partial deliveries are in principle inadmissible, unless we have expressly agreed to them or they are reasonable to us.

For quantities, weights and dimensions, the values determined by us during the goods receipt inspection are decisive, subject to other proof.

6. Delivery dates

The delivery time specified by us in the order is binding. The supplier is obliged to inform us immediately in writing if it is unlikely to be able to comply with agreed delivery times for whatever reason.

If the supplier does not perform its service or does not perform it within the agreed delivery time or if it is in default, our rights – in particular for withdrawal and damages – shall be determined in accordance with the statutory provisions. As soon as the supplier realises that it will not be able to meet the agreed delivery date or other deadlines in accordance with the contract, it must notify us immediately. The supplier can only invoke the absence of necessary information or documents to be provided by us if it has not received these within a reasonable period of time, despite a written warning.

If the supplier is in default, we are entitled to charge a contractual penalty of 0.5% of the net value of the delayed delivery per working day, but not more than 5% of the value of the goods. We are entitled to demand the contractual penalty in addition to the fulfilment of the contract and a minimum amount of compensation owed by the supplier in accordance with the statutory provisions; the assertion of further claims remains unaffected. If we accept the delayed service, we will enforce the contractual penalty at the latest with the final payment.

The unreserved acceptance of the delayed delivery or service does not constitute a waiver of the claims we are entitled to enforce as a result of the delayed delivery or service.

7. Retention of title

Ownership of the contractual objects shall transfer to us upon full payment. However, we are entitled to continue processing or reselling the goods in accordance with the agreement even before full payment is made. A prolonged or extended retention of title requires our express written consent.

8. Confidentiality

The supplier will treat confidential information, in particular documents, samples, business intentions, personal data, problems, data, drawings and/or problem resolutions and other specific know-how (hereinafter referred to overall as "information") we have provided access to for the duration and after termination of the contractual relationship as such, and in particular shall not pass it on to third parties or use it without authorisation for its own business purposes. The supplier will also impose this obligation on its employees.

This obligation of confidentiality does not apply to information that

  • was already known to the other party outside the contractual relationship;
  • Ÿhas been lawfully acquired by third parties;
  • Ÿis or will become generally known or is state of the art;
  • Ÿis released by the issuing contractual partner.

Upon termination of this contractual relationship, the supplier must return all documents and information that require to be kept confidential without being requested to do so or destroy them at our request and provide us with proof of this. Software and presentation versions provided for personal use must be uninstalled immediately and without request by the supplier.

In the event of a culpable breach of this obligation of confidentiality, the supplier undertakes to pay an appropriate contractual penalty, the amount of which shall be determined by us at our reasonable discretion and which, in the event of a dispute, is subject to full judicial review.

The supplier complies with the rules of data protection, in particular if it is granted access to our company or to hardware and software. It shall ensure that its vicarious agents also comply with these provisions, in particular obliging them to comply with data secrecy before they take up their duties.

9. Insurance

For the duration of the contract, including warranty periods and limitation periods for claims for defects, the supplier must take out and maintain appropriate liability insurance with industry-standard conditions and a minimum cover amount of EUR 2 million per claim.

10. Warranty

The contractor warrants that the goods comply with our specifications and other information such as standards and other documents and that it checks them for this compliance before shipping them. In all cases, the goods must comply with generally accepted technical rules and occupational health and safety and accident prevention regulations, as laid down in particular in EN standards, DIN standards, VDE regulations and other recognised technical regulations. The supplier also warrants that the delivered items are free of SVHCs (Substances of Very High Concern) within the meaning of EU Regulation No. 1907/2006 (REACH Regulation), unless it has informed us about the type and quantity of the contained SVHCs before delivery. Relevant certificates of conformity and, if applicable, CE markings should be enclosed with the delivery. In the case of cross-border delivery of goods, the contractor is itself obliged to submit or present a manufacturer/origin declaration of the goods without being requested to do so. The long-term supplier declarations must be issued without request by 31 December of each year.

We are obliged to check the delivery within a reasonable period of time. The complaint shall be deemed to have been made in due time if it is received by the contractor within a period of seven working days, calculated from the date of acceptance of the goods or, in the case of hidden defects, as of the point of discovery.

In urgent cases or if the contractor does not fulfil a warranty obligation within the statutory period, we are entitled to have damaged parts replaced or repaired and any ensuing damages remedied at the expense of the contractor or to make a covering purchase at the expense of the contractor.

If the order involves the production of castings, the contractor shall check the conformity of the model with the drawing as well as the casting feasibility before the casting is carried out and assumes the warranty for this. Subsequent objections to defective construction are excluded.

The supplier undertakes to implement a proven and established quality assurance system with regard to the deliveries or services covered by the delivery in accordance with the ISO certificates or Reach / RO certificates that are valid in each case.

11. Quality assurance, goods receipt inspection

The supplier is obliged to maintain a quality management system ("QMS") which reflects the very latest in the state of the art. The supplier shall carry out production-related inspections in accordance with his QMS. If necessary, we will agree an inspection plan for a special preliminary stage inspection with the supplier.

The supplier carries out a final inspection of the products, which ensures that only faultless goods are delivered.

The statutory provisions (Sections 377, 381 of the German Commercial Code) apply to the commercial obligation to inspect and complain, with the following proviso: our duty to inspect is limited to defects which come to light during our goods receipt inspection in an external examination including of the delivery documents as well as in our quality control as part of a spot check procedure (e.g. transport damage, incorrect and under-delivery). Insofar as acceptance has been agreed, there is no obligation to carry out an inspection. It is also important to know to what extent an inspection is appropriate in accordance with the proper course of business, taking into account the circumstances of the individual case. Our duty to complain about defects discovered at a later stage remains unaffected. In all cases, our complaint (notification of defects) shall be deemed to be immediate and timely if it is received by the supplier within seven working days.

12. Rights in the event of defects

Our rights in the event of material and legal defects of the goods (including incorrect and under-delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the case of other breaches of duty by the supplier are subject to the statutory provisions unless specified otherwise below.

In accordance with the statutory provisions, the supplier is particularly liable for ensuring that the goods are of the agreed quality in the event of a transfer of risk to us. In any case, the product descriptions which are the subject of the respective contract, in particular by name or reference in our order, or which have been included in the contract in the same way as these terms and conditions of purchase, shall be deemed to be an agreement regarding the quality of the products. It makes no difference whether the product description comes from us, from the supplier or from the manufacturer.

If, in order to fulfil its warranty obligations, the supplier makes new deliveries or maintains or repairs parts of the delivery within the limitation period, the limitation period begins to run anew from the point when the supplier has completely fulfilled our claims for supplementary performance, unless, based on the suppliers conduct, we had to assume that it did not regard itself as being obliged to take the measure, but only carried out the replacement delivery or rectification of defects for reasons of goodwill.

The costs incurred by the supplier for the purpose of testing and repairing (including possible removal and installation costs) shall also be borne by the supplier if it is found that there was in fact no defect. Our liability for damages in the event of an unjustified claim for rectification of defects remains unaffected; in this respect, however, we shall only be liable if we have recognised or grossly negligently failed to recognise that there was no defect.

If the supplier fails to fulfil his obligation to render supplementary performance – at our option by remedying the defect (repair) or by delivering a defect-free item (replacement delivery) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand compensation from the supplier for the expenses required for this purpose or a corresponding advance. If the supplementary performance by the supplier has failed or is unreasonable for us (e.g. due to particular urgency, danger to operational safety or the threat of disproportionate damage), there is no need to set a time limit; we will inform the supplier of such circumstances immediately, if possible in advance.

In addition, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. Furthermore, we are entitled to claim compensation for damages and expenses in accordance with the statutory provisions.

13. Limitation

The reciprocal claims of the contracting parties are time-barred in accordance with the statutory provisions, unless specified otherwise below.

By way of derogation from Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims for defects is 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period begins with the acceptance. The 3-year limitation period also applies accordingly to claims arising from defects in title, whereby the statutory limitation period for claims in rem by third parties (Section 438 (1) No. 1 BGB) remains unaffected; furthermore, claims arising from defects in title shall not become time-barred in any case, as long as the third party can still assert the right against us, in particular in the absence of a limitation period.

The limitation periods of the right to purchase, including the above extension, apply to all contractual claims for defects to the extent permitted by law. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (Sections 195, 199 BGB) applies if the application of the limitation periods of the right to purchase does not result in a longer limitation period in individual cases.

14. Product liability

If the supplier is responsible for damage to a product, it shall indemnify us from claims of third parties insofar as the cause lies in its sphere of control and organisation and the supplier is personally liable in relation to the third parties.

As part of its indemnification obligation, the supplier shall reimburse expenses in accordance with Sections 683, 670 of the German Civil Code (BGB) arising out of or in connection with a claim by third parties, including recalls carried out by us. We will inform the supplier of the content and scope of recall measures if this is possible and reasonable and give the supplier the opportunity to comment. Further legal claims remain unaffected.

15. Intellectual property rights, indemnity

Insofar as we provide the supplier with plans, documents, sketches or other protectable information for the provision of its services, the supplier is hereby granted a non-exclusive right of use to such information for its own internal personal use which can be revoked at any time and is limited to the duration of the order processing. The right of use neither includes reproduction nor distribution, processing or making information available to the public. The supplier may not use such sensitive information to process orders from other customers.

If the joint cooperation gives rise to new patentable results, the parties will enter into a separate agreement on their registration and use, in which the proportions of the development work done must be adequately taken into account. However, we shall acquire at least a non-exclusive right of use to the object of the property right, which is free of charge and unrestricted in terms of time, content and place.

The supplier guarantees that the worldwide use of its deliveries and services by us or our customers in accordance with the contract does not conflict with the intellectual property rights of third parties. The supplier shall indemnify us against all claims of third parties that are brought against us due to a culpable infringement of intellectual property rights by the supplier and compensate us for all reasonable expenses and costs that arise for us in connection with the defence of such claims.

16. Spare parts

The supplier shall ensure and undertake to ensure that it is possible to supply us or our customers with replacement supplies or spare parts for the contractual products for a further 10 years after the last serial delivery at reasonable, normal commercial conditions.

17. Tools, materials

If we provide materials, devices or tools for the production of the contractual objects, they remain our property. If the supplier procures or manufactures such materials, devices or tools on our behalf, we acquire the property by paying the agreed price. The tools then remain in the suppliers possession on a loan basis.

The supplier is responsible for the proper maintenance and insurance of materials, devices and tools. Unless otherwise agreed by the parties, the costs for this are included in the agreed product price.

We may at any time demand the return of the items owned by us, unless the supplier requires these items to fulfil its contractual obligations in respect of us. The supplier is not entitled to use materials, devices or tools provided by us for orders from other customers.

18. Export licences

The supplier is responsible for ensuring that the contractual products are suitable for export to the agreed or known destination countries when processed or used as intended. In the event of any obstacles to delivery which may nevertheless arise due to official decisions and/or national or international regulations, in particular export control regulations as well as embargoes or other sanctions imposed due to the suppliers contractual products, the supplier is obliged to provide us with adequate support as soon as possible with regard to obtaining the required export permit. If the delivery obstacle persists for more than 6 months, we are entitled to a special right of withdrawal with regard to the affected parts.

The supplier is obligated to inform us of any licencing obligations or restrictions on (re-)exports of its goods in accordance with German, European, US export and customs regulations as well as the export and customs regulations of the country of origin of its goods in its business documents and to send us the following information in good time before the first delivery and without delay in the event of changes (technical and legal changes or official findings) for goods subject to authorisation:

  • A description of the goods,
  • All applicable export list numbers including the Export Control Classification Number according to the U.S. Commerce Control List (ECCN),
  • Trade origin of the goods,
  • Statistical goods number (HS code),
  • A contact person in its company to clarify any queries.

19. Language

Unless otherwise agreed, communication shall take place in the German or English language. All documents, such as reports, certificates, drawings and test reports, must be provided by the supplier in German or English at the latest upon request.

20. Place of performance - place of jurisdiction

Unless expressly agreed otherwise, our registered office is the place of performance. The court responsible for Hockenheim is the place of jurisdiction for all disputes arising from our orders. However, we are also entitled to appeal to the courts at the suppliers registered office. The law of the Federal Republic of Germany applies exclusively to the exclusion of the UN Convention on Contracts for the Sale of Goods (CISG).

Delivery addresses:

Alfra GmbH
DE-68766 Hockenheim

Alfra GmbH
Berlin plant
Hamburger Straße 12
DE-14532 Stahnsdorf

As of: 01/2020