General Terms and Conditions of Purchase

1. Applicability and Validity of the Client’s Terms and Conditions

These Terms and Conditions of Purchase apply exclusively to all contracts—including future ones—with business entities, legal entities under public law, and special funds under public law regarding deliveries and other services, including contracts for work and services. Any conflicting or additional terms and conditions of the Contractor are hereby rejected. They shall not be recognized even if they are not expressly rejected again upon receipt, and even if the delivery has been accepted and/or the goods have been paid for. They shall apply only if the purchaser has expressly agreed to them or to parts thereof in writing.

2. Order by the Client

Orders, verbal side agreements regarding the order, agreements, and statements made by the Client’s employees shall only become binding upon written confirmation by the Client. This also applies to subsequent changes and additions.
The Contractor shall immediately notify the Client in writing of any changes or extensions to the scope of delivery or services that prove necessary during execution. Such changes or extensions require the Client’s prior written consent.
The written form requirement is also satisfied when the communication is transmitted via electronic data transfer.
The contractor must confirm the order within eight business days by providing a legally valid, signed copy of the order (order acceptance). This applies to orders transmitted by the client via electronic data transfer. In this case, confirmations must be provided within two business days. Failure to confirm shall apply as acceptance.

3. Contractor’s Proposal

The Contractor must adhere strictly to the specification and wording of the request in the offer. In the event of deviations, an explicit note is required.
The Client reserves ownership rights and copyright to images, drawings, cost estimates, and other documents included in the Client’s requests; these may not be made available to third parties. Disclosure to third parties requires the Client’s express written consent. The documents are to be used exclusively for production based on the Client’s order; after the order has been fulfilled, they must be returned to the Client without being asked.
The preparation of quotes is free of charge and non-binding for the Client.
Upon submission of the quotation, the Contractor must, in accordance with the stipulations of § 48 of the Income Tax Act (EstG), provide a valid exemption certificate pursuant to § 48b of the Income Tax Act (EstG) in a readable copy or, in the case of an order-specific certificate, in the original. Otherwise, the quotation cannot be considered in the further procurement process. The Contractor must immediately inform the Client of any revocation of a valid exemption certificate.

4. Delivery and Performance Deadlines

The delivery or service dates specified in the order are binding. Deliveries made prior to the agreed-upon delivery date may be rejected by the Client. The Contractor is obligated to notify the Client immediately in writing if circumstances arise or become apparent to the Contractor that result in the inability to meet the agreed-upon date. The obligation to meet the agreed-upon dates remains unaffected by this.
In the event of a delay on the part of the Contractor, the Client may, after the fruitless expiration of a reasonable grace period set by the Client, have the delivery not yet performed by the Contractor carried out by a third party at the Contractor’s expense. Furthermore, it is possible for the Client to withdraw from the contract after the expiration of a reasonable grace period set by the Client without the Contractor having fulfilled its obligations.
In the event of a delay in delivery by the Contractor, the Client is authorized to claim a lump-sum penalty for delay amounting to 1% of the delivery value per completed week, but not exceeding 10%. The Contractor has the right to prove to the Client that no damage, or damage of a significantly lower magnitude, was incurred as a result of the delay. The Client reserves the right to apply further statutory claims in lieu of the lump-sum compensation for delay, in particular rescission or damages for non-performance.
In the event of force majeure, the Client is authorized to demand that the execution be performed at a later date. The Client is obligated to notify the Contractor of this without delay.
In addition to the rules set forth in the preceding paragraphs, the laws shall apply.
The contractor may only invoke the failure of the client to provide necessary documents if the contractor has not received these documents within a reasonable period of time despite a written reminder.

5. Framework Orders

In the case of framework orders, a separate framework agreement for the materials to be delivered in each instance is completed between the two parties. This agreement results in the delivery prices and the total quantity of materials to be delivered for an estimated period of one year (annual requirement). The specific delivery call-up under a framework order is issued in writing by the Client in the amount of the previously agreed batch size. However, the Client is permitted to call up orders with low or high quantities, even in cases of deviation from the agreed batch sizes.
The contractor has the obligation to deliver the respective call-off quantity within 3 business days of receiving a written call-off order under a framework contract. The contractor has the obligation to maintain sufficient stock of materials from existing framework agreements at all times to ensure that the 3-business-day delivery deadline for individual call-off orders is always met. Framework agreements begin with the first call-up and end with the last call-up of the materials to be delivered.
The prices agreed upon in the framework contracts are always fixed prices that apply for the term of the individual framework contracts.
The Client undertakes to the Contractor to accept the quantities agreed upon in the respective framework contracts. However, the Client has no obligation to accept specific partial quantities within specific time frames. The actual quantity to be accepted is determined by the Client’s operational needs and the specific individual call-off orders.

6. Execution, Environmental Protection, Safety, Health Protection, and Quality

The delivery must meet the agreed-upon specifications, comply with recognized technical standards, and observe the valid legal and official regulations as well as the Client’s operational rules and regulations. In particular, the Contractor must comply with accident prevention regulations, the regulations of the employers’ liability insurance association (in particular BGVA1 and BGVA2), as well as generally accepted safety and occupational health rules. Machinery and technical equipment must correspond to the Machinery Ordinance and be delivered with operating instructions and an EU declaration of conformity. They must also correspond to the standards listed in Directories A and B of the “General Administrative Regulation on the Law on Technical Equipment,” as well as other rules pertaining to safety and the accident prevention regulations. Equipment bearing the CE mark is to be supplied preferably. If a certification mark has not been issued, compliance with the above-mentioned regulations must be demonstrated at our request.
To the extent applicable, the Contractor shall maintain a quality assurance system, e.g., in accordance with DIN EN ISO 9001–9003. The Client has authorization to inspect the system after prior consultation.
In the event that the Contractor supplies substances that are classified as hazardous substances under the Hazardous Substances Ordinance, the Contractor has the obligation to provide the EC safety datasheet (§ 4 GefStoffV) unsolicited prior to delivery.
The Contractor is prohibited from using carcinogenic substances. The Contractor must continuously align the quality of the products to be delivered to the Client with the latest state of the art and inform the Client of opportunities for improvement and technical modifications.

7. Insurance

The Contractor must maintain warranty periods and liability insurance coverage under standard industry terms (minimum coverage of 5 million euros per claim for personal injury or property damage, on a lump-sum basis). The Contractor must provide proof of existing insurance upon the Client’s request; low coverage amounts must be agreed upon with the Client on a case-by-case basis for the duration of the contract, including warranty periods and coverage limits. If the Client is entitled to further claims for damages, these remain unaffected.
All shipments addressed directly to the Client (e.g., deliveries under purchase agreements, work-and-materials contracts, maintenance contracts, or custom-made products—but not material deliveries for contracts for work and services performed by the Contractor at the Client’s systems) must be insured by the Contractor.

8. Retention of Title, Provision of Materials, Tools

If the Client provides parts to the Contractor, the Contractor reserves title to such parts. Any processing or transformation by the Contractor is carried out on behalf of the Client. If the item provided by the Client is processed or inseparably mixed with other items not belonging to the Client, the Client shall acquire co-ownership of the new item in the ratio of the value of the item subject to retention of title (purchase price plus sales tax) to the value of the other processed or mixed items at the time of processing or mixing. If the processing or mixing is carried out in such a way that the Contractor’s item is to be regarded as the principal item, the following provisions apply: the Contractor shall transfer proportional co-ownership to the Client; the Contractor shall hold sole ownership or co-ownership in trust for the Client.
The Client retains title to any tools provided; the Contractor has an obligation to use the tools exclusively for the manufacture of the goods ordered by the Client. The Contractor has the obligation to insure the tools belonging to the Client at replacement value, at its own expense, against fire, water, and theft damage. At the same time, the Contractor hereby assigns to the Client all claims for compensation arising from this insurance; the Client hereby accepts the assignment. The Contractor has the obligation to perform any necessary maintenance and inspection work on the Client’s tools, as well as to cover all servicing and repair costs, in a timely manner at its own expense. The Contractor must immediately notify the Client of any malfunctions; if the Contractor fails to do so through its own fault, claims for damages remain unaffected. To the extent that the security interests held against the Client pursuant to the foregoing rules exceed the purchase price of all of the Client’s goods subject to retention of title that have not yet been paid for by more than 20%, the Client has the obligation, upon the Contractor’s request, to release the security interests at the Client’s discretion.
With regard to the Contractor’s retention-of-title rights, the Contractor’s terms and conditions shall apply, provided that ownership of the goods passes to the Client upon payment and, accordingly, the extended form of the current-account retention of title does not apply. Due to the retention of title, the contractor may demand the return of the goods only if it has previously withdrawn from the contract.

9. Subcontractors, Workers from Non-EU Countries

The engagement of subcontractors requires the prior written consent of the Client. The Contractor must impose upon the subcontractors, with respect to the tasks they undertake, all obligations that the Contractor has assumed toward the Client and must ensure compliance with them.
If the Contractor or subcontractors use workers who are not nationals of EU countries, the Contractor should submit the work permits that correspond to the Client before work begins.
If the contractor uses subcontractors without our prior written consent in accordance with Section 2.(1), or if the contractor fails to to submit work permits in accordance with Section 2.(2), the Client shall have the right to terminate the contract or to claim damages for non-performance.
The Contractor may not prevent its subcontractors from completing contracts with the Client for other goods or services. In particular, exclusivity agreements with third parties that prevent the Client or the subcontractor from making references to goods or services required by the Client itself or the subcontractor for the fulfillment of such orders are prohibited.

10. Shipping, Place of Performance

Agreed delivery dates and deadlines are binding. The Client must be notified immediately in writing of any impending delivery delays. At the same time, the Contractor must propose appropriate countermeasures to the Client to mitigate the consequences of the delay. Unless otherwise agreed in writing, compliance with the delivery date or delivery period is determined by the receipt of the goods by the Client. The place of performance is the delivery address specified by the Client in the order.
Shipping is at the contractor’s expense and danger. The most cost-effective shipping options for the client must be selected, unless the client has expressly specified certain shipping requirements. Deliveries must be packaged in such a way as to avoid transportation damage.
In addition to the shipping address, the shipping documents must include the order details (order number, Client’s article number, order date, delivery location, recipient’s name if applicable, and container number). As a general rule, the shipment must be reported in writing to the client’s ordering department on the day of departure.
When delivering hazardous materials, product information—in particular safety datasheets—must be provided to the Client in a timely manner prior to delivery. The same applies to information regarding laws-mandated marketing restrictions.
The costs arising from misrouted deliveries shall be borne by the contractor, provided that the contractor is responsible for the transport or is at fault for the misrouting of the shipment. If the client’s order numbers or dispatch notes are missing from the shipping documents, all costs incurred as a result—such as demurrage charges, rerouting fees, and the like—shall be borne by the contractor. The Contractor may only invoke the failure of the Client to provide necessary documents if the Contractor has not received the documents even after a written reminder.
The contractor is generally only authorized to make partial deliveries or provide partial services with the client’s written consent.
The client has authorization to return packaging that is in good condition to the contractor in exchange for reimbursement of the value thereof that results from the invoice. Any other shipping instructions must be especially highlighted on the delivery note. The contractor shall bear the packaging costs unless otherwise agreed in writing. If, in individual cases, the client bears the costs of packaging, these shall be charged at the lowest possible rate. The take-back obligations are governed by the Packaging Ordinance of August 21, 1998, as it is valid at any given time.
The client reserves the right to accept or reject over- or under-deliveries.
If the contractor is in default of delivery, the client is entitled to the legal claims. In particular, the client is entitled to demand compensation for damages in lieu of performance after the fruitless expiration of a reasonable grace period set by the client. The Client’s claim to delivery is only excluded once the Contractor has paid the damages.

11. Declaration of Origin

In the event that the Contractor issues declarations regarding the originating status of the goods sold, the following shall apply:

The contractor undertakes to facilitate the verification of proofs of origin by the responsible customs authorities and to provide both the necessary information and any required confirmations.
The Contractor has an obligation to compensate for any damages resulting from the declared origin not being recognized by the responsible authority due to a defective certificate or the inability to verify the origin, unless the Contractor is not responsible for these consequences.

12. Entering and Vehicle Entry onto the Client’s Plant Premises/Construction Site

When entering or driving on the Client’s premises or construction site, the instructions of the Client’s qualified personnel must be followed. Entering or accessing the premises or construction site by vehicle must be notified in a timely manner. The provisions of the German Road Traffic Regulations (StVO) must be observed. The Client and its employees shall be liable, regardless of the legal basis, only for gross negligence and willful misconduct; in the event of injury to life, body, or health, they shall also be liable for simple negligence.
If services are performed on the client’s premises or construction site, the regulations corresponding to the construction site shall apply. Upon commencement of work or upon prior requirement, the Contractor’s supervisors shall be provided with a copy of the construction site regulations, including the list of annexes, against signature. Knowledge of the content of the construction site regulations, including the list of annexes, must be confirmed by a written declaration.

13. Transfer of Risk

The danger shall not pass to the Client until the delivery has been handed over to the Client or the service has been accepted by the Client. Acceptance is subject to inspection for defects, in particular for correctness, completeness, and suitability. We are authorized to inspect the subject matter of the contract to the extent and as soon as this is practicable in the proper course of business. We will notify the Client of any defects discovered immediately upon discovery. In the case of a latent defect, this applies from the time the defect is discovered. The Client is expressly exempt from the obligation to inspect the goods for defects without delay. To this extent, the Contractor waives the right to raise the defense of a delayed notice of defects.

14. Warranty

The Client is entitled to the full scope of statutory warranty and damages claims. In particular, the Contractor shall be liable to the Client to ensure that its deliveries and services correspond to recognized technical standards and the contractually agreed properties and standards. Irrespective of this, the Client is authorized, at its discretion, to demand that the Contractor remedy the defect or provide a replacement delivery. In this case, the Contractor has the obligation to bear all expenses necessary for the purpose of remedying the defect or providing a replacement delivery that the Client must bear in its relationship with its customer, provided that the defect already existed at the time the danger passed to the Client. Any rectification attempt by the Contractor shall apply to failure after the first unsuccessful attempt. The right to damages, in particular the right to damages for non-performance, is expressly reserved. The Client is also entitled to rescind the contract even if the Contractor’s breach of duty in question is only minor. Statutory warranty and guarantee claims shall become time-barred within 24 months after the transfer of risk, unless the law provides for longer periods. To the extent that the Client faces claims from third parties due to the defectiveness of the goods (contractor’s recourse), the statute of limitations is suspended until the expiration of a maximum of five years. The Contractor’s liability for defective goods shall end no later than ten years after delivery of the goods. This restriction shall not apply if the Client’s claims are based on facts of which the Contractor was aware or could not have been unaware and which the Contractor did not disclose to the Client. The Contractor hereby assigns to the Client—by way of performance—all claims to which it is entitled against its suppliers arising from and in connection with the delivery of defective goods. The Contractor shall provide the Client with all documents necessary to assert such claims and shall make all necessary statements.
The Contractor must correct defects free of charge—including incidental costs. If this is not possible, or if it is unreasonable to expect the Client to accept repaired parts, the Contractor must replace the defective parts with non-defective ones at no cost.
In urgent cases, or if the Contractor is in default regarding the rectification of defects, the Client may carry out the necessary measures itself or have them carried out by a third party at the Contractor’s expense. The Client shall notify the Contractor before carrying out the measures. If this is not possible, the measures necessary to prevent damage may be carried out in urgent cases without prior notification; in such cases, the Client shall provide notification immediately thereafter. The Contractor’s warranty obligation remains unaffected by this; this does not apply to defects attributable to measures carried out by the Client or a third party.
If rectification of a defect is not possible or cannot reasonably be expected of the Client, the Client may demand rescission or a reduction in price.
In the event of defects, the warranty period shall be extended by the time elapsed between the notification of the defect and its rectification. If the delivered item or service is redelivered, repaired in whole or in part, or replaced, the warranty period for the redelivered, replaced, or wholly or partially repaired item shall be repeated.
To the extent that the Contractor is responsible for product damage, the Contractor has the obligation to indemnify the Client against third-party claims for damages upon first request, to the extent that the cause lies within the Contractor’s sphere of control and organization and the Contractor is personally liable in its external relations.
Within the scope of its liability for claims for damages within the meaning of the preceding paragraph (6), the Contractor is also obligated to reimburse any expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) as well as in accordance with §§ 830, 840 BGB, which arise from or in connection with a recall campaign carried out by the Client. The Client shall instruct the Contractor on the content and scope of the recall measure to be carried out, to the extent possible and reasonable, and shall give the Contractor the option to comment. The Client reserves the right to assert any other statutory claims.
Liability arising from a breach of obligations under the Equipment and Product Safety Act is restricted to products placed on the market after May 1, 2004. Furthermore, claims for damages shall exist only for damages caused by an intentional or grossly negligent injury to obligations. Liability is—to the extent permitted—restricted to the value of the product.

15. Prices, Invoicing

The prices stated in the order are fixed prices (plus applicable sales tax), inclusive of all discounts and surcharges, delivered free to the place of use, including packaging, corrosion protection, and shipping costs. In the case of delivery not carriage paid, the Client shall bear only the most economical freight costs, unless the Client has specified a type of shipment. The type of pricing does not touch the agreement regarding the place of performance. Unless otherwise agreed in writing, or if the contractor offers more favorable terms, the client shall pay the agreed price less a 3% cash discount.
Payment and discount periods begin upon receipt of the invoice, but not before receipt of the goods or, in the case of services, not before their acceptance; and, if documentation, test certificates (e.g., factory certificates), or similar documents are part of the scope of services, not before their handover to the client in accordance with the contract.
The Client shall pay within 14 days with the above discount; however, the Client is also authorized to pay without deduction on the 15th of the month following delivery, provided that delivery has been made in full and without complaint and the invoice has been received.
The Client is entitled to set-off and retention rights to the extent permitted by law.
Invoices, to be issued in duplicate, must be sent—separately for each order—to the billing address specified in the order or to the Client’s management department upon completion of delivery or service; Order numbers must be specified, and all billing documents (parts lists, work sheets, measurements, etc.) must be enclosed.
Invoices for partial deliveries or services must be marked “Partial Delivery Invoice” or “Partial Service Invoice,” and final invoices must be marked “Remaining Delivery Invoice” or “Remaining Service Invoice.”
Each invoice must show the law-required value-added tax. Original invoices must not be included with the delivery of goods.

16. Payment

The Client shall pay on the agreed due date following receipt of the goods.
Payments do not constitute acceptance of the invoice.
Payments shall be made by check or bank transfer. Payment is considered timely if the check is mailed on the due date or the order for the transfer is placed at the bank on the due date. Interest on late payments cannot be claimed. The interest rate for late payment is 5 percentage points above the base rate. The Client has authorization in all cases to prove that the damages resulting from the delay are low compared to the amounts claimed by the buyer.

17. Prohibition on Assignment

Assignments and other transmissions of the Contractor’s rights and obligations outside the scope of application of Section 354a of the German Commercial Code (HGB) are excluded; exceptions require the Client’s written consent to be effective.

18. Termination

The contract for work and services may be terminated by the Client at any time until the completion of the work or the delivery of the work in accordance with § 649 of the German Civil Code (BGB). Notwithstanding the laws regulating the consequences of termination, the following applies: If the Client terminates the contract for good cause attributable to the Contractor, the Contractor shall be compensated only for the individual services rendered up to the date of receipt of the notice of termination that have been utilized by the Client. The client’s claims for damages remain unaffected. In particular, the contractor must reimburse any additional expenses incurred.
If the Client terminates the contract for good cause for which the Contractor is not responsible, the Contractor shall receive only the agreed-upon compensation for the individual deliveries and/or services rendered up to the date of receipt of the notice of termination and accepted by the Client. Any further claims by the Contractor are excluded. In all other respects, the consequences of termination as regulated in § 649 of the German Civil Code (BGB) shall apply.
The Client may withdraw from an order for deliveries (§ 433 BGB) at any time for good cause until the delivery is handed over. In this case, the preceding provisions correspond to each other mutatis mutandis with respect to the Contractor’s claim for remuneration; the Client shall acquire ownership of the partial deliveries and services for which remuneration has been paid.
A good cause within the meaning of paragraph (3) lies, in particular, if, as a result of governmental decisions, the client’s interest in the performance of the contractual services ceases to exist, an insolvency petition is filed on the part of the Contractor, the stipulations for filing an insolvency petition are met, or the Contractor fails to fulfill its obligation to remedy defective services within a reasonable period set in writing.

19. Waste Disposal

To the extent that scrap is generated in connection with the Contractor’s deliveries or services, the Contractor shall recycle or correct the scrap—unless there is a deviation in the written agreement—at its own expense in accordance with the provisions of waste management law. Ownership, danger, and liability under waste management law shall pass to the Contractor at the time the waste is generated.

20. Weights, Quantities

In the event of weight discrepancies, the weight determined by the Client upon receipt shall apply, unless the Contractor proves that the weight it calculated was correctly determined using a generally accepted method. The same applies to quantities.

21. Industrial Property Rights (Patents, Licenses, Utility Models, etc.),
copyright

The Contractor is liable to ensure that the delivery and use of the delivered items and/or the manufactured work do not infringe upon any patents or intellectual property rights of third parties. The Contractor undertakes to indemnify the Client against any claims by third parties arising from the infringement of these rights and to hold the Client harmless in all other respects. The Client is authorized to enter into agreements with the third party without the Contractor’s consent, in particular to complete a settlement. Even if the Contractor holds industrial property rights, repairs may be carried out by the Client or its agents.

22. Confidentiality

The Contractor has the obligation to treat all information received in the course of fulfilling the order as unobstructedly confidential. This does not apply to information that was already known to the Contractor upon receipt or of which the Contractor has otherwise gained knowledge (e.g., from third parties without a confidentiality reservation or through the Contractor’s own independent efforts).
All documents provided by the Client remain the Client’s property. They may not be made accessible to third parties and must be returned to the Client in full and without request upon completion of the order. Specialists and subcontractors engaged by the Contractor do not apply as third parties if they have undertaken the same obligation of confidentiality toward the Contractor. The Contractor is liable for all damages incurred by the Client as a result of a breach of this obligation.
3. The Client shall have exclusive rights to use all images, drawings, calculations, analytical methods, formulations, and other works produced or developed by the Contractor in connection with the conclusion and execution of the order.

23. Data Protection

The Contractor agrees that the Client may store, edit, and transfer the Contractor’s personal data to affiliated companies to the extent necessary for the fulfillment and processing of the order.

24. Publication, Advertising

Any evaluation or disclosure of the business relationship with the Client in publications or for advertising purposes is permitted only with the Client’s express prior written consent.

25. Export

The Contractor is aware that the export of documents and items of any type often requires authorization, e.g., under the Foreign Trade Act. The Contractor is responsible for ensuring that, in cases where it exports its own documents or items, or The Client’s documents or items, the transfer is subject to inspection for approval and—where necessary—all required authorizations are obtained in a timely manner and all relevant legal provisions are complied with.
In the event of a violation of these provisions, the Client reserves the right to assert claims for compensation for any damages incurred.

26. Jurisdiction

To the extent that the Contractor is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law, or a special fund under public law, the Client’s registered office shall be the exclusively applicable place of jurisdiction for all disputes that result directly or indirectly from the contractual relationship. In addition, the Client is authorized to bring an action before the court responsible for the Contractor’s place of business.

27. Contract Language, Applicable Law

The language of the contract is German. German law applies.
2. If the Contractor has its registered office abroad, German law shall apply, to the exclusion of conflict-of-laws rules and including the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980. Standard commercial clauses shall be interpreted in accordance with the valid Incoterms – ICC, Paris.

28. Severability Clause

Should any individual provisions of this agreement be or become invalid or unenforceable, the remaining provisions shall remain in full force and effect.
The parties have an obligation to replace the invalid or unenforceable provision with a provision that is as economically equivalent as possible from the time the invalidity or unenforceability takes effect.

E. Zoller GmbH & Co. KG
Terms and Conditions of Purchase /