AEB - General Conditions of Purchase of Wilhelm Modersohn GmbH & Co. KG (part of Leviat)

§ 1 Scope, form

(1) These General Terms and Conditions of Purchase (GTP) shall apply to all business relations with our business partners and suppliers ("Seller"). The AEB shall only apply if the Seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

(2) The AEB shall apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether the Seller manufactures the Goods himself or purchases them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GT&Cs in the version valid at the time of our order or, in any case, in the version most recently communicated to the Seller in text form, shall apply as a framework agreement also for similar future contracts, without our having to refer to them again in each individual case.

(3) These AEB shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of the Seller shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. This consent requirement shall apply in any case, for example even if we accept the Seller's deliveries without reservation in the knowledge of the Seller's General Terms and Conditions of Business.

(4) Individual agreements made with the Seller in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GPC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

(5) Legally relevant declarations and notifications of the Seller with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, remain unaffected.

(6) References to the validity of statutory provisions shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.

§ 2 Conclusion of contract

(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The Seller shall notify 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.

(2) A written confirmation of our order within a period of 14 days or an unconditional dispatch of the goods shall be deemed to be acceptance.

In the event of late acceptance (late written confirmation or unconditional dispatch of the goods) on the part of the Seller, we reserve the right to reject the written confirmation immediately as delayed or to refuse to accept the goods. Our silence in response to a delayed acceptance shall be deemed to be our consent.

§ 3 Delivery time and delay in delivery

(1) The delivery time stated by us in the order is binding. If the delivery time was not stated in the order and was not otherwise agreed, it shall be four weeks for goods to be manufactured by the Seller on our behalf (custom-made products), and one week in all other cases - in particular for goods marked by the Seller as available from stock - in each case from the conclusion of the contract. The Seller is obliged to inform us immediately in writing if he is likely to be unable to meet agreed delivery times - for whatever reason.

(2) If the Seller does not perform his services or does not perform them within the agreed delivery time or if he is in default, our rights - in particular to rescission and compensation - shall be determined in accordance with the statutory provisions. The regulations in paragraph 3 remain unaffected.

(3) If the Seller is in default, we may - in addition to further statutory claims - demand lump-sum compensation for our damage caused by default in the amount of 1% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods delivered late. We expressly reserve the right to claim higher damages if we can provide appropriate evidence. The Seller reserves the right to prove that no damage at all or only a significantly lower damage has been incurred.

§ 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 him rendered by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for his services unless otherwise agreed in individual cases (e.g. limitation to stock).

(2) Within Germany, delivery shall be made "free domicile" to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, delivery shall be made to our registered office in 32139 Spenge. The respective destination is also the place of performance for the delivery and any subsequent performance (obligation to be performed at the place of performance).

(3) The delivery shall be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (article number and quantity) and our order identification (date and number). If the delivery note is missing or incomplete, we are not responsible for any delays in processing and payment resulting from this. Separated from the delivery note, a corresponding dispatch note with the same content must be sent to us.

(4) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly in the case of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.

(5) The statutory provisions shall apply to the occurrence of our default of acceptance. However, the Seller must also expressly offer us his service if a specific or determinable calendar period has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may demand compensation for additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to an unacceptable item to be manufactured by the Seller (individual production), the Seller shall only be entitled to further rights if we are obliged 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 this is shown separately.

(2) Unless otherwise agreed in individual cases, the price includes 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 is due for payment within 30 calendar days from 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% discount on the gross amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our bank receives our transfer order before the payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.

(4) We do not owe any interest on maturity. The statutory provisions shall apply to default of payment.

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

(6) The Seller shall only have a right of set-off or retention on the basis of counterclaims that have been determined as legally binding or are undisputed.

§ 6 Secrecy and reservation of title

(1) We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents are to be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall not expire until and insofar as the knowledge contained in the documents provided has become generally known.

(2) The above provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the Seller for production. Such items - as long as they are not processed - are to be stored separately at the expense of the Seller, treated with care and insured to a reasonable extent against destruction and loss.
(3) Any processing, mixing or combination (further processing) of items provided by the Seller shall be carried out for us. The same shall apply if the goods supplied are further processed by us, so that we shall be deemed to be the manufacturer and shall acquire title to the product in accordance with the statutory provisions at the latest when the goods are further processed.

(4) The transfer of ownership of the goods to us must take place unconditionally and without regard to the payment of the price. If, however, we accept in individual cases an offer of transfer of title from the Seller conditional upon payment of the purchase price, the Seller's reservation of title shall expire at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we shall remain authorised to resell the goods in advance of payment of the purchase price and to assign the resulting claim in advance (alternatively, simple reservation of title extended to resale). This excludes all other forms of retention of title, in particular the extended, forwarded and extended retention of title to further processing.

§ 7 Defective delivery

(1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including wrong and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the Seller, unless otherwise stipulated below.

(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us. In any case, those product descriptions which - in particular by designation or reference in our order - are the subject matter of the respective contract or have been incorporated into the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, the seller or the manufacturer.

(3) Notwithstanding § 442 para. 1 p. 2 BGB (German Civil Code), we shall be entitled to claims for defects without restriction even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.

(4) For the commercial duty of inspection and notification of defects, the statutory provisions (§§ 377, 381 HGB) shall apply with the following proviso: Our duty of inspection shall be limited to defects which are openly apparent during our incoming goods inspection under external appraisal including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognisable during our quality control in a random sampling procedure. If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the normal course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Irrespective of our duty to inspect, our complaint (notification of defects) shall in any case be deemed to be prompt and timely if it is sent within five working days of discovery or, in the case of obvious defects, of delivery. As a total period for inspection and notification of defects, 14 days shall in any case be deemed to be immediate and in good time, whereby a longer period may also be appropriate taking into account the circumstances of the individual case.

(5) Subsequent performance shall also include the removal of the defective goods and their reinstallation, provided that the goods have been installed in or attached to another object in accordance with their nature and intended use; our legal claim to reimbursement of corresponding expenses shall remain unaffected. The Seller shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of unjustified requests for the removal of defects shall remain unaffected; however, in this respect we shall only be liable if we have recognised or grossly negligently failed to recognise that there was no defect.

(6) Notwithstanding our statutory rights and the provisions in para. 5, the following shall apply: If the Seller does not fulfil his obligation of subsequent performance - at our discretion either by remedying the defect (subsequent improvement) 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 from the Seller reimbursement of the expenses required for this or a corresponding advance payment. If the subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without delay, if possible in advance.

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

§ 8 Supplier recourse

(1) In addition to claims for defects, we shall be entitled without restriction to our legally determined rights of recourse within a supply chain (supplier recourse according to §§ 445a, 445b, 478 BGB). In particular, we are entitled to demand from the Seller exactly the type of subsequent performance (repair or replacement) that we owe to our customer in the individual case. Our legal right of choice (§ 439 para. 1 BGB) is not restricted by this.

(2) Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with §§ 445a para. 1, 439 para. 2 and 3 BGB), we shall notify the Seller and request a written statement with a brief description of the facts. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Seller shall be responsible for providing proof to the contrary.

(3) Our claims arising from supplier recourse shall also apply if the defective goods have been further processed by us or another entrepreneur, e.g. by installation in another product.

§ 9 Producer liability

(1) If the Seller is responsible for a product damage, he shall indemnify us from third party claims to the extent that the cause is within his sphere of control and organisation and he is liable himself in the external relationship.

(2) Within the scope of his obligation to indemnify, the Seller shall reimburse us for expenses pursuant to §§ 683, 670 BGB (German Civil Code) which arise from or in connection with a third-party claim, including recall actions carried out by us. We shall inform the Seller - as far as possible and reasonable - about the content and scope of recall measures and give him the opportunity to comment. Further legal claims shall remain unaffected.

(3) The Seller shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage.

§ 10 Supply of spare parts

(1) The Seller undertakes to keep spare parts (original parts) for the goods delivered to us for a period of at least 8 years from the corresponding delivery.

(2) If the Seller intends to discontinue the production of spare parts for the respective delivered goods or if the supply of spare parts is endangered for other reasons, the Seller is obliged to inform us immediately in writing or text form.

§ 11 Industrial property rights

(1) The Seller warrants that no rights of third parties, in particular industrial property rights or copyrights of third parties - whether in Germany or abroad - are infringed in connection with the goods delivered by him.

(2) The Seller undertakes to indemnify us against all claims which third parties make against us in connection with the goods delivered by the Seller on account of an infringement of industrial property rights and/or copyrights - whether in Germany or abroad - and to reimburse us for all necessary expenses in connection with any claim - including lawyers' fees and court costs - or also to indemnify us in this respect.

(3) Any further claims to which we may be entitled shall remain unaffected.

§ 12 Limitation period

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

(2) Notwithstanding § 438 (1) No. 3 BGB (German Civil Code), the general limitation period for claims for defects is 3 years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year period of limitation shall apply accordingly to claims arising from defects of title, whereby the statutory period of limitation for third-party claims for surrender in rem (§ 438 para. 1 No. 1 BGB) shall remain unaffected; moreover, claims arising from defects of title shall in no case become statute-barred as long as the third party can still assert the right - in particular in the absence of a period of limitation - against us. It is merely pointed out for clarification purposes that the statutory limitation period remains in force with regard to claims within the meaning of § 438 para. 1 nos. 1 and 2 BGB.

(3) The limitation periods of the law on sales, including the above extension, shall apply - to the statutory extent - to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply here, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
§ 13 Choice of law and place of jurisdiction

(1) These GPC and the contractual relationship between us and the Seller shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Sales Convention.

(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, the exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship is our registered office in 32139 Spenge. In all cases, however, we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the Seller. Priority statutory provisions, in particular those relating to exclusive jurisdiction, shall remain unaffected.

§ 14 Miscellaneous

(1) If provisions of these GPC are or become invalid in whole or in part, the remaining provisions shall remain valid.
(2) The personal data necessary for the transaction shall be stored and treated confidentially in accordance with the applicable data protection regulations.
(3) Even if these GPC are not addressed to consumers, we hereby inform you as a precaution that we are neither willing nor obliged to participate in dispute settlement proceedings before a consumer arbitration board.

Status May 2019