General Terms and Conditions of Purchase of UNITRONIC GmbH for Use in Business Transactions with Entrepreneurs

Status: August 2023

§ 1 Scope of application

1.1 These General Terms and Conditions of Purchase (hereinafter “GTCP”) apply exclusively to all current and future supply relationships of Unitronic GmbH (hereinafter “Unitronic”) with suppliers who are entrepreneurs (sec 14 German Civil Code), a legal entity under public law or a special fund under public law (hereinafter “Supplier or Suppliers”).

They apply to contracts for the purchase and/or delivery of movable goods (“goods”) or contracts for work and materials as well as custom-made products regardless of whether the supplier manufactures the goods himself or purchases them from third suppliers.

1.2 By accepting and executing an order or by concluding a contract, the supplier acknowledges these GPC in the version valid at the time of the order/ the conclusion of the contract. The GTCP can be accessed at any time on Unitronic’s website at Deviating and/ or conflicting GTC of the supplier shall not be recognised unless Unitronic has expressly agreed to them. The GTCP shall also apply if Unitronic accepts the delivery without reservation in the knowledge of conflicting or deviating conditions of the supplier. A silence of Unitronic on an order or order confirmation of the supplier with contradictory GTC of the supplier also does not represent a corresponding consent.

1.3 The GTCP shall also apply to all future transactions and contracts with the supplier, even if Unitronic no longer expressly refers to them.

1.4 Individual agreements (e.g. framework supply agreements, quality assurance agreements) and specifications in an order from Unitronic shall take precedence over the GPC.

§ 2 Orders, conclusion of contract, text form

2.1 An order from Unitronic shall be deemed binding at the earliest upon written submission or confirmation. Insofar as a contract has not already been concluded by Unitronic’s order in response to an offer from the supplier, the supplier undertakes to accept an order from Unitronic within a reasonable period of time, at the latest, however, within a period of two weeks. The receipt of the declaration of acceptance by Unitronic is decisive for the timely acceptance. A delayed acceptance is considered a new offer and requires acceptance by Unitronic.

2.2 The offer, order, acceptance or conclusion of the contract as well as all agreements made for the purpose of executing the order/contract must be made in writing. Written form within the meaning of these GPC includes written and text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, shall remain unaffected.

§ 3 Delivery/ service, place of fulfilment, change of order, spare parts

3.1 The scope of delivery results from the respective contract or from the offer and order. Documents, reports, ideas, drafts, models, samples and all other results arising during the fulfilment of the order are part of the delivery/service.

3.2 Without Unitronic’s prior written consent, the supplier shall not be entitled to have the delivery/ service owed by him provided by third parties.

3.3 The supplier shall bear the procurement risk for its delivery/service unless otherwise agreed in individual cases. This shall also apply to the procurement of raw materials and materials which are required for the manufacture of the deliveries and the performance of the services.

The supplier shall bear the costs for stocking up with raw goods and materials, even if these are only supplied in specified (minimum)sizes/ (minimum)quantities. If stock goods are still available at the end of the contract and if these can be used for the wearing parts/spare parts regulation according to section 3.9, the stock goods must be put aside for this purpose. If it is not possible to use them within the framework of the wearing parts/spare parts regulation in accordance with section 3.9, the supplier must offer any surplus stock goods to Unitronic. Unitronic has the right, but not the obligation, to accept the offered stock goods at the material value.

3.4 Unless otherwise agreed, the delivery/service shall take place at Unitronic’s place of business (so-called place of performance). This shall also be the place of performance for any subsequent performance (obligation to deliver).

3.5 The Supplier shall provide its deliveries/services with the utmost care in compliance with the latest state of science and technology, in compliance with statutory and official safety regulations as well as recommendations of professional associations.

The supplier undertakes to comply with all specifications set out in the order or contract and shall not modify them without Unitronic’s prior written consent (text form).

3.6 Partial deliveries/services are not permitted unless otherwise expressly agreed in advance.

3.7 At Unitronic’s request, the supplier shall provide information on the composition of the delivery item/service and its specifics, insofar as this is necessary for the fulfilment of official requirements.

3.8 As long as the supplier has not (fully) fulfilled his obligations, Unitronic has the right to demand changes to the order with regard to design, execution, quantity and delivery time within the scope of what is reasonable. In this case, the effects (e.g. additional or reduced costs, delivery dates, etc.) are to be settled by mutual agreement.

The supplier shall immediately notify Unitronic in text form of any concerns that the supplier may have about the way in which the delivery/service is to be changed as requested by Unitronic and propose adjustments in order to meet the specifications or legal requirements.

3.9 The supplier is obliged to supply wearing parts as well as spare parts for the period of ordinary technical use, but at least during the 7 years after the last delivery, on reasonable terms and within a reasonable period of time.

If the supplier intends to discontinue the delivery of the spare parts after the expiry of the aforementioned periods or to discontinue the delivery of the delivery item during this period, Unitronic shall be informed of this immediately and given the opportunity to place a final order before the discontinuation.

§ 4 Delivery/Service Dates, Delay

4.1 All delivery/service dates stated in the order are binding. If the delivery time is exceptionally not specified in the order and also not otherwise agreed, it shall be 4 (four) weeks from the conclusion of the contract. If a delay in delivery/service threatens to occur, the supplier shall immediately inform Unitronic of the delay as well as the expected duration and – if possible – the causes of the delay.

4.2 The risk of accidental loss and accidental deterioration of the item shall pass to Unitronic upon handover at the place of performance. If an 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 apply accordingly to the acceptance.

4.3 If and insofar as Unitronic is in default of acceptance, the supplier can demand compensation for his additional expenses in accordance with the statutory provisions (sec. 304 German Civil Code). If the contract concerns a non-representable item to be manufactured (individual production), the supplier shall only be entitled to further rights if Unitronic is obliged to cooperate and is responsible for the failure to cooperate.

4.4 If the supplier does not provide his delivery/service or does not provide it within the agreed delivery time or if he is in default, the rights of Unitronic – in particular to withdrawal and compensation for damages – shall be determined in accordance with the statutory provisions.

4.5 If the supplier is in default with his delivery/service, Unitronic shall also be entitled, in addition to further statutory claims, to demand lump-sum compensation from Unitronic for the damage caused by default in the amount of 1% of the net price per completed calendar week, but in total not more than 5% of the net price of the goods delivered late.

Unitronic reserves the right to prove higher damages. Conversely, the supplier reserves the right to prove that no damage at all or only significantly less damage has been incurred.

§ 5 Prices, terms of payment

5.1 The prices shown in the order are binding. They include the statutory value added tax if this is not shown separately.

5.2 Unless otherwise agreed, the price shall also include all ancillary services (e.g. assembly, installation) as well as ancillary costs (e.g. freight, packaging, insurance, customs duties). Claims based on additional deliveries/services can only be asserted after prior written agreement and commissioning of the additional deliveries/services between the contracting parties. Otherwise, subsequent claims in excess of the total price are excluded.

5.3 The deliveries/services shall be insured by the supplier against transport damage, incorrect loading or unloading and theft at the supplier’s expense.

5.4 Unless otherwise agreed in writing, payment of the price shall be due 30 days after complete delivery/service (including any agreed acceptance) as well as receipt of an auditable invoice and receipt of all contractually required documents. Payment shall be made non-cash to the supplier’s business account. For this purpose, the supplier shall provide appropriate bank details. In the case of agreed partial services, payment shall only become due with the last delivery. The receipt of the amount on the supplier’s account is decisive for the timeliness of the payments.

If payment is made by Unitronic within 14 calendar days, the supplier shall grant a 3% discount on the net amount of the invoice.

5.5 All order confirmations, delivery documents and invoices must state Unitronic’s order number, article number, delivery quantity and delivery address. If one or more of these details are missing and processing by Unitronic is delayed as a result in the normal course of business, the respective payment deadline shall be extended by the period of the delay.

5.6 The statutory provisions shall apply to default in payment.

5.7 Unitronic shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent provided by law. The supplier’s rights of set-off and retention shall only apply insofar as these are undisputed or have been legally established.

§ 6 Securing ownership

6.1 In the event that Unitronic provides the supplier with drawings, illustrations, calculations, (product) descriptions, implementation instructions and other documents for the purpose of order fulfilment, Unitronic reserves the ownership and/or copyright. The supplier may neither make them accessible to third parties nor use or reproduce them himself or through third parties without the express consent of Unitronic. In this respect, the documents are to be kept secret, even after termination of the contract; this does not apply if the knowledge contained therein has become generally known in the meantime. The supplier shall return these documents in full at Unitronic’s request if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. In this case, copies made must be destroyed; the only exceptions to this are storage within the scope of statutory storage obligations and the storage of data for backup purposes within the scope of normal data backup.

6.2 For tools, models, samples, fabrics and other materials made available to the supplier, the provisions in Clause 6.1 shall apply to the same extent. Such items shall be stored separately at the supplier’s expense and adequately insured against destruction or loss. These items shall also be returned – insofar as they are no longer required for the fulfilment of the contractual obligations.

6.3 In the event of processing, mixing or combining (further processing) of provided items, this shall be carried out exclusively for Unitronic. The same applies in the event of further processing by Unitronic itself. In these cases, Unitronic shall be deemed the manufacturer and shall acquire ownership of the result in accordance with the statutory provisions.

6.4 The supplier shall bear the cost of repairing any damage to the items referred to in Clauses 6.1 to 6.3 which is attributable to improper use by the supplier, its employees or other vicarious agents.

6.5 The transfer of ownership of the goods to Unitronic shall be unconditional and without regard to the payment of the price. If, in an individual case, an offer of the supplier conditional on the payment of the purchase price is accepted by Unitronic, the supplier’s retention of title shall expire at the latest upon payment. Even in the latter case, Unitronic shall remain entitled to resell the goods in the ordinary course of business prior to payment, whereby this may only take place with advance assignment of the claim arising from this (alternatively validity of the simple reservation of title extended to the resale). All other forms of retention of title, in particular the extended, passed-on and prolonged retention of title, are excluded.

§ 7 Property rights

The supplier warrants that the goods delivered by him do not infringe any industrial property rights of third parties in countries of the European Union or other countries in which he manufactures the goods or has them manufactured. He is obliged to indemnify Unitronic against all claims made by third parties against Unitronic due to such an infringement of industrial property rights and to reimburse Unitronic for all necessary expenses in connection with this claim. This shall not apply insofar as the supplier proves that he is neither responsible for the infringement of industrial property rights nor should have been aware of it at the time of delivery if he had exercised due commercial care.

§ 8 Defective delivery

8.1 Unitronic shall be entitled to the statutory claims in the event of material defects and defects of title in the delivery/service (including incorrect and short delivery as well as improper assembly/installation or defective instructions) as well as in the event of other breaches of duty by the supplier.

8.2 In accordance with the statutory provisions, the supplier shall be liable in particular for ensuring that the goods have the agreed quality/condition at the time of transfer of risk to Unitronic. In any case, those (product) descriptions which are the subject of the respective contract, in particular by designation or reference in Unitronic’s order, shall be deemed to be an agreement on the quality/condition. It is irrelevant whether the (product) description originates from Unitronic, the supplier or the manufacturer.

In the case of deliveries/services with digital elements or other digital content, the supplier shall owe the provision and updating of the digital content insofar as this results from a quality agreement or other (product) descriptions of the manufacturer or in the order, on the Internet, in advertising or on the goods label.

8.3 Upon conclusion of the contract, Unitronic is not obliged to carry out an inspection or make special enquiries about any defects. Partially deviating from sec. 442 para. 1 sentence 2 German Civil Code, Unitronic shall therefore also be entitled to claims for defects without restriction if the defect remained unknown at the time of conclusion of the contract due to gross negligence.

8.4 The commercial inspection and complaint obligations are based on the statutory provisions (sec. 377, 381 para. 2 German Commercial Code), whereby Unitronic’s inspection obligation shall be limited to defects which become apparent during the incoming goods control under external inspection including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognisable during the quality control in the random sampling procedure. If acceptance has been agreed, no inspection in the aforementioned sense is required. In this case, the acceptance is the decisive factor. An obligation to give notice of defects discovered later remains unaffected. Notwithstanding the aforementioned obligation to examine, a complaint (notice of defect) by Unitronic shall be deemed to be immediate and timely if it is sent within 7 working days from discovery or, in the case of obvious defects, from delivery.

§ 9 Product liability

9.1 Insofar as the supplier is responsible for product damage, he shall be obliged to indemnify Unitronic against claims for damages by third parties upon first request, insofar as the cause lies within his sphere of control and organisation and he himself is liable in relation to third parties. If Unitronic is obliged to carry out a recall action towards third parties due to a defect in a product supplied by the supplier, the supplier shall bear all costs associated with the recall action.

9.2 The supplier shall maintain product liability insurance at its own expense with coverage of at least EUR 5 million. The supplier shall send Unitronic a copy of the liability policy at any time upon request.

§ 10 Limitation period

10.1 The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.

10.2 Notwithstanding sec 438 para. 1 no. 3 BGB, the general limitation period for claims for defects shall be 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall begin with acceptance. The 3-year limitation period shall also apply accordingly to claims arising from defects of title, whereby the statutory limitation period for claims in rem by third parties for surrender shall remain unaffected; claims arising from defects of title shall furthermore not become time-barred in any case as long as the third party can still assert the right against Unitronic.

10.3 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 Unitronic is also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (sec. 195, 199 German Civil Code) shall apply for this, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.

§ 11 Choice of law and place of jurisdiction

11.1 These GPC and the contractual relationship between Unitronic and the supplier shall be governed by the law of the Federal Republic of Germany excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).

11.2 The exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of Unitronic in Neuss, Germany. However, Unitronic shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCP or a prior individual agreement or at the general place of jurisdiction of the supplier. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.

§ 12 Binding nature of the contract

The contract concluded between Unitronic and the Customer shall remain binding in its remaining parts even if individual provisions of these GPC are legally invalid. This shall not apply if adherence to the contract would represent an unreasonable hardship for one party.