General Terms and Conditions of Purchase

of ERC Additiv GmbH („ERC“)

1. Scope

  1. Goods and services provided by the contractor (“Contractor”) to ERC as the customer (“Customer”) shall exclusively be governed by these General Terms and Conditions of Purchase (hereafter referred to as Purchase Conditions )and any other written agreements.
  2. With the submission of an offer, these Purchase Conditions shall be deemed accepted by the Contractor.
  3. The General Terms and Conditions of the Contractor shall not become part of this agreement, even if the Customer does not expressly object to them. This also applies if the Contractor separately emphasises that it only intends to deliver at its own General Terms and Conditions or if the Customer does not expressly object to the General Terms and Conditions of the Contractor in an individual case, even if the Customer references a letter from the Contractor which contains the Contractor's Terms and Conditions or if the deliveries are accepted without any reservation or invoices are paid by the Customer.
  4. Under these Purchase Conditions, deliveries shall mean deliveries of items under a purchase contract or a contract for the supply of goods to be manufactured or produced (Werklieferungsvertrag).
  5. Under these Purchase Conditions, services shall mean services of any kind, including consulting services, development services, transport services, cleaning work, maintenance work and assembly work, regardless of whether the contracts for these services or this work should be classified as a contract for services, a contract for work or another contract, except for contracts described in Section 1.4.
  6. Until revoked by the Customer, these Purchase Conditions shall apply to all contracts that already have been or will be concluded with the Contractor, i.e. also to all future deliveries and performances of the Contractor, even if not expressly agreed again.

2. Orders

  1. Goods and services shall only be provided based on orders placed by the Customer.
  2. Unless a different binding period is provided for in an individual case, the Customer shall be bound by its orders for a period of 5 working days (working days shall be defined as Monday through Friday except for public holidays observed in the region in which the registered office of the Customer is located). The decisive factor for determining whether an order has been accepted in due time is the Customer's receipt of a statement of acceptance.
  3. It is not possible to derive any rights against the Customer from commitments, information, advice, etc. which are/is given orally or by telephone. Such oral statements only bind the Customer if they are confirmed by the Customer in writing or if the Customer demonstrably waived the written form requirement.
  4. The Customer's order number must be stated in all correspondence, on the invoices and on the shipping documents.
  5. The Customer may demand changes to the order after acceptance, subject to the further requirements of Section 3.10.
  6. The Contractor is not allowed to commission third parties with the performance of a contract for goods (or essential parts of it) without the prior written consent of the Customer.
  7. The Contractor assures that both the goods and spare parts for them can be supplied to the Customer at reasonable conditions for a period of 10 years following the delivery. Where the Contractor intends to discontinue the goods or spare parts for them after the expiry of this period, the Contractor has a duty to notify the Customer about this in writing without undue delay and give it the opportunity to place one final order.

3. Scope of delivery / performance of the service

  1. The scope of delivery and services shall be as defined in the order placed by the Customer.
  2. Any necessary protective equipment or certificates of origin, as well as any required instructions on storage, assembly or operation and safety data sheets issued in the official languages of the EU, must be supplied together with the goods free of charge. The same applies to any documents that are necessary for the maintenance and repair of the goods.
  3. The Contractor undertakes to use products and processes that are environmentally friendly within its economic means and the technical means available to it. At the Customer's request, the Contractor shall issue a certificate of inspection for the goods delivered, and do so free of charge.
  4. The Contractor shall provide the services personally and must not create any obligations for the Customer in transactions with third parties. The involvement of third parties requires the prior written consent of the Customer.
  5. The Contractor shall perform the services and the work assigned to it at its own direction and responsibility. Only the Contractor is allowed to give instructions to its employees.
  6. The Contractor shall only use carefully selected and qualified employees in the provision of the services. In this context, it shall specifically consider the Customer's interest in continuity. At the request of the Customer, the Contractor shall replace employees that do not have the required expert knowledge or otherwise impair the performance of the contract. The related additional expenses shall be borne by the Contractor.
  7. The Contractor must ensure that its employees comply with the contractual duties (in particular confidentiality and data protection). The Contractor shall inform all employees used in the performance of the contract about the relevant provisions and monitor compliance with these provisions.
  8. Where services are performed within the premises of the Customer or at another place of performance, the Contractor must comply with the safety regulations and information policies applicable at that location.
  9. The Contractor has a duty to regularly inform the Customer about the progress of the services and shall notify the Customer without undue delay in writing of any circumstances that (could) jeopardise the contractually agreed performance. After the service has been provided in full, the Contractor shall report to the Customer on its services and return everything it has obtained (for any reason) as a consequence of providing the service to the Customer.
  10. The Customer may demand changes to the contractual services at any time. This shall also apply to changes to the order after acceptance by the Contractor. In such a cases, prices and delivery dates shall be reasonably adjusted to the extent that the costs to be paid by the Contractor relevantly change as a result. The Contractor shall submit a written offer to the Customer for additional or further services. The Contractor may object to such changes if the performance of the changes is unreasonable for him or if the Customer does not accept the associated additional costs.

4. Delivery; passing of the risk; documents; packaging

  1. Unless otherwise agreed in writing, goods shall be delivered duty paid, including proper packaging, DDP (Incoterms 2020) to the named place of destination. Where a place of destination was not named, the place of destination shall be the registered office of the Customer.
  2. The risk shall pass as specified in the Incoterms agreed upon.
  3. The Contractor shall announce all deliveries to the Customer at the latest when goods are shipped by sending a notice of shipment. The Contractor may only make partial deliveries with the prior consent of the Customer.
  4. All deliveries must be accompanied by proper shipping documents / documents. They must contain the deliverable, the order items, the quantity, the weight, the packaging, the type of shipping and labelling, as well the Customer's order numbers (Auftrags- und Bestellnummer). The Contractor must comply with regulations on transporting hazardous goods; in particular, hazardous goods must be labelled as such. The Contractor shall be responsible for the consequences where shipping documents / documents are incorrect, incomplete or received late.
  5. Goods shall be delivered properly packaged. Superfluous packaging or packaging that is not environmentally friendly shall be avoided. The Customer is entitled to, at its discretion, return the packaging to the Contractor, or dispose of or recycle it, at the Contractor's expense. For any packaging that was charged as a separate item, the Contractor shall refund 2/3 of the invoice value to the Customer if this packaging is returned, provided that it is in good condition.

5. RIGHTS IN DELIVERABLES

  1. The deliverables produced for the Customer by the Contractor (or by third parties on its behalf) in any form, all samples or other materials, as well as all rights (including any patent and intellectual property rights) therein, shall irrevocably become the sole and exclusive property of the Customer when they arise. In addition, the Contractor shall irrevocably grant the Customer the transferable, sub-licensable right (which shall be unlimited in terms of place, content and time) to use and exploit all aforementioned copyrightable works in all forms of use and exploitation for the purposes agreed upon or specified in the contract. For deliverables that are specifically produced for the Customer, the aforementioned usage and exploitation rights also shall be granted exclusively. Where the Contractor makes a deliverable available to the Customer which includes any rights that existed before the provision of the services, the Contractor shall irrevocably grant the Customer a non-exclusive, transferable, sub-licensable right (which shall be unlimited in terms of place, content and time) to use and exploit it.
  2. The Contractor shall ensure that all employees involved in the provision of services or assistants of the Contractor or any third parties called upon for the provision of the services will not assert any rights that can be derived from the moral right of the author or other intellectual property rights. The Contractor must ensure, upon the Customer's first demand, that the relevant employees give their necessary consent to the registration of intellectual property rights and/or provide a statement of assignment regarding rights related to deliverables.
  3. The Contractor is entitled to keep a copy of the deliverable as proof of the services provided by it. The Contractor is not entitled to any further rights, in particular rights of reproduction or distribution.
  4. All claims with respect to the rights transferred or granted in accordance with this Section 5 shall be fully compensated by payment of the remuneration specified in Section 11.

6. LEGAL REQUIREMENTS AND QUALITY ASSURANCE

  1. The Contractor undertakes to comply with the legal requirements applicable to the services at the place of performance and destination, in particular those regarding accident prevention, occupational and machine safety, and protection of the environment.
  2. The Contractor shall carry out quality assurance which is appropriate in type and scope and corresponds to the state of the art, and provide proof of this to the Customer upon request.
  3. At the Customer's request, the Contractor shall enter into an appropriate quality assurance agreement with the Customer.
  4. If claims are brought against the Customer based on a violation of legal regulations, in particular safety regulations, the Contractor has a duty to indemnify the Customer and its customers with respect to all claims that arise from services provided by the Contractor.
  5. The Contractor shall ensure that services are provided to the Customer in compliance with all provisions of the Minimum Wage Act (Mindestlohngesetz, MiLoG) and the Posted Workers Act (Arbeitnehmer-Entsendegesetz - AEntG), in particular that the employees used to provide the services are paid at least the applicable minimum wage or the minimum wage applicable within the relevant industry. In addition, the Contractor shall ensure that all social security contributions and contributions to trade associations are properly paid. The Contractor shall provide appropriate documents to evidence compliance with the aforementioned provisions at the Customer's request.
  6. The Contractor shall indemnify the Customer with respect to all claims and demands brought by third parties which are brought against it because of a breach of the duties set out in Section 15.1 unless the Contractor is not responsible for the breach of duty.
  7. Where the Contractor uses a subcontractor to provide the services to the Customer, the representation and the indemnification obligation set out in Sections 6.5 and 6.6 shall also extend to these subcontractors. This does not affect Section 3.4. In addition, the Contractor is liable to the Customer for any damage incurred by the Customer based on the failure to comply with the obligations set out in Sections 6.5 or 6.6.

7. Dates for deliveries and the performance of services; contractual penalty; substitute performance

  1. Dates and time periods for deliveries and the performance of services are binding. They shall be deemed complied with if goods are received free of defects and the correct quantities are delivered on (or by) the respective date at the named place of destination, or if the service is provided by the Contractor on (or by) the respective date at the named place of destination.
    Deliveries shall be made, and services shall be provided, during normal business hours. The Contractor shall contact the Customer to enquire about these hours.
  2. The Contractor may only make deliveries or provide services prematurely if it has obtained corresponding written consent of the Customer. The payment date agreed will not be affected by this.
  3. The Contractor shall notify the Customer of foreseeable delays in the delivery or the provision of services, and shall provide the reasons for and the likely duration of the delay in writing without undue delay.
  4. For delays in the delivery or the provision of services where the Contractor is at fault, the Customer is entitled to payment of a contractual penalty. The contractual penalty shall correspond to 0.2% of the contract value per commenced working day of the delay period (working days shall be defined as Monday through Friday except for public holidays observed in the region in which the registered office of the Customer is located), but shall be limited to a total of 5% of the contract value. The Customer may reserve the right to claim the contractual penalty until final payment.
  5. After an appropriate additional period of time for performance specified by the Customer has passed without success, the Customer also has the right to have the goods supplied, or the service performed, by a third party at the Contractor's expense. In this event, the Contractor has a duty to provide any necessary documents to the Customer without undue delay. Where proprietary rights hinder a performance by third parties, the Contractor has a duty to procure an appropriate release from such rights without undue delay.
  6. In addition, in the event of a delay in delivery, the Customer shall have all rights it is entitled to under the applicable legal regulations.
    Acceptance by the Customer of a delayed delivery or service does not constitute a waiver of claims for damages.

8. Interruption of deliveries or the provision of services; force majeure; rescission

  1. Where circumstances for which the Customer is not responsible lead to a shutdown of the operations of the Customer or a customer of the Customer for which the delivery or service was intended – or an impairment of those operations which significantly affects the ability to utilise the goods or service – the Customer's duty to accept the delivery or service shall be suspended for the duration of the shutdown or impairment of operations. In this respect, the Contractor must not assert any claims for damages against the Customer. This specifically applies in the case of force majeure: In the event of force majeure (as defined in Section 3 of the ICC Force Majeure Clause 2003) the Customer's duty to accept the delivery or service shall be suspended for as long as the ability to utilise the goods or service is significantly impaired or removed due to the force majeure. Where one of the parties cannot reasonably be expected to perform the contract due to the delay resulting from the above scenarios, this party can rescind the contract upon providing corresponding written notice to the other party without undue delay.
  2. The Customer has the right to terminate the contract in accordance with Sections 648 (General right of termination), 648a (Right to terminate a contract for good cause due to unacceptable circumstances) of the German Civil Code (BGB). The same applies mutatis mutandis to contracts for the supply of goods to be manufactured or produced (Werklieferungsverträge).
  3. The Customer may also exercise the statutory rights of rescission.
  4. If the Customer withdraws from the contract in whole or in part, the Contractor's payment claims shall lapse. Any down payments made shall be refunded to the Customer immediately and without deduction. In the event of a partial withdrawal from the contract, the Contractor's payment claims shall lapse only to the extent that they relate to the part which is subject of the withdrawal, and down payments shall only be refunded to the extent that they relate to the part which is subject of the withdrawal. The Contractor shall have no right of retention.
  5. Where the Customer rescinds the contract due to cessation of payments and/or due to the filing of an application for the initiation of insolvency proceedings against the Contractor's assets, the Customer is entitled to use (a) the facilities of the Contractor which are required for the continuation of the work or (b) the goods delivered by the Contractor until such time for an appropriate remuneration.

9. Place of performance

The place of performance for all mutual services and deliveries, including the satisfaction of any claims for subsequent performance, shall be the place of destination named by the Customer. Where no place of destination was named, the place of performance shall be the registered office of the Customer.

10. Prices of goods (purchase contracts and contracts for the supply of goods to be manufactured or produced (Werklieferungsverträge))

  1. The prices agreed for goods are fixed prices; the Contractor is not allowed to present any supplemental claims of any kind. Unless otherwise agreed in writing, prices are understood as DDP (Incoterms 2020) “Delivered Duty Paid” to the place of destination named in the order, without statutory VAT, including packaging. The price components shall be separately listed by the Contractor.
  2. The Customer will not pay for visits, samples, or the preparation of offers, projects, etc.

11. Remuneration for services (contracts for work and services, other contracts)

  1. The remuneration for services shall be agreed upon in the order. It shall be paid by the Customer a) based on the time and effort spent or b) as a flat-rate remuneration.
  2. Unless expressly provided for in the order, the Customer does not owe any other fees and the remuneration agreed shall also cover any efforts or compensation which are necessary for the contractually agreed performance, including insurance and expenses incurred for transport, travel and meals.
  3. Where the parties agree upon a flat-rate remuneration, this remuneration shall cover all efforts and compensation of the Contractor for all services owed under the relevant order.
  4. Where services are invoiced based on the effort spent (time and material), the Customer may request a limitation of costs from the Contractor at any time unless such a cost limitation was already agreed upon in the order. The cost limitation shall be understood as a binding basis for planning for the services to be provided. Where the Contractor can foresee that it will not be able to comply with the cost limitation, it shall notify the Customer of this in writing without undue delay, but at the latest when 75% of the cost limit agreed have been spent. The Customer may take all actions which seem appropriate to it to avoid costs that are higher than expected, which includes terminating the relevant order without notice, with immediate effect. Any amounts beyond the cost limit agreed shall be renegotiated by the parties and shall be approved in the form of a written order by the Customer.
  5. Where the parties agree on a strict limitation of costs in the order, this limitation shall be understood as a guaranteed maximum price of the services to be provided. All additional costs arising from or in connection with the provision of the services shall be borne by the Contractor. The cost limit may be adjusted to account for any additional costs for which the Customer is responsible.
  6. Services that are invoiced based on the time and effort spent shall be invoiced on a monthly basis. The Contractor shall provide proof of its services invoiced based on the time and effort spent.

12. Terms of payment

  1. The payment method to be used for payments shall be chosen by the Customer.
  2. The period for payment shall commence upon the Customer's receipt of a proper invoice, in duplicate, and proof (which must be provided together with the invoice) that all goods have been delivered or that the service has been provided in full, or, where agreed, upon the Customer's acceptance of the goods delivered. Early deliveries or partial deliveries do not trigger the commencement of the period for payment.
  3. Proper invoices must comply with all statutory requirements and must correspond to the specifications set out in the order. The latter, at a minimum, include the requirement to state the order number and other identifiers. Invoices not properly issued only shall be deemed received by the Customer after they have been corrected. Unless otherwise agreed, invoices must be issued in EUR.
    Invoices can be submitted via the internet by sending an email to rechnung(at)erc-additiv.de. Unless otherwise agreed in writing, payments shall be made within 30 days of receipt of invoice with a 3% discount, or 60 days net. The discount may also be applied if the Customer applies a setoff or withholds payments because of defects; the discount period shall commence after the complete remediation of defects.
  4. The Customer shall not be in default of payment without a payment reminder.
  5. The Customer is entitled to rights of setoff and retention within the statutory limits.
  6. Where the Customer must make payments in advance of the delivery (down payments), the Contractor shall provide appropriate bank guarantees from a German financial institution for the benefit of the Customer before the Customer makes the payment.
  7. Payments do not mean that a particular delivery was accepted as being in compliance with the contractual specifications. Payments are made subject to subsequent claims.

13. Assignment; seizure; retention of title

  1. The Contractor must not assign its claims against the Customer to third parties or have third parties collect them without the Customer's consent. Where the Contractor assigns its claims to third parties regardless or allows third parties to collect them, the Customer, at its discretion, may make a payment to the Contractor or the third party with discharging effect.
    With respect to the extended retention of title of the Contractor's upstream suppliers the Customer's consent to an advance assignment shall hereby be deemed granted.
  2. In the event of seizures, attachment, or other disposals by third parties with respect to the goods owed by the Contractor, the Contractor must notify the Customer without undue delay.
  3. Any retention of title by the Contractor is only binding if it was agreed in writing separately from the General Terms and Conditions of the Contractor.
    The Contractor may only enforce its retention of title claim after it has rescinded the contract.

14. Warranty for goods (purchase contracts and contracts for the supply of goods to be manufactured or produced (Werklieferungsverträge))

  1. The Contractor warrants that all goods delivered will be free of defects, will correspond to the items listed in the order and to that order's specifications, will be suitable for the intended use and application, will correspond to the current generally recognised state of the art and will comply with the relevant national and international legal regulations, including the regulations and guidelines of public authorities, trade associations and professional associations. The Contractor shall conduct a plausibility check before accepting the order. If the Contractor has any concerns regarding the type of design desired by the Customer, it shall notify the Customer of this in writing without undue delay.
  2. The warranty period shall be 36 months following the delivery at the place of destination named. Where the statutory warranty period is longer, the statutory warranty period applies. In the event of a remediation of a defect or a supplementary delivery, the limitation period shall commence anew (in the case of a remediation of a defect only with respect to the defect remedied and further with respect to the fact that the remediation work is free of defects).
  3. The Customer shall inspect the goods delivered within a reasonable period of time for apparent deviations with respect to quality or quantity. The Contractor shall be notified of any deficiencies identified within a period of 10 working days as of receipt of goods.
    The Contractor shall be notified of any deviations with respect to quality or quantity which are not apparent as soon as they are noticed in the normal course of business. The notification shall be deemed provided in a timely manner if it is provided within a period of 10 working days following the discovery of the deficiency.
  4. With respect to bulk deliveries the Customer only needs to perform random checks. If random checks show that a significant share of the samples checked do not comply with the contractually agreed or statutory requirements, the Customer is released from the duty to perform further inspections and entitled to reject the entire shipment and request subsequent performance in the form of a new shipment or a remediation of deficiencies. The rejection of the shipment does not imply a rescission of the contract. Any further rights are not precluded thereby.
  5. Where defects become apparent during the warranty period, the Customer may, at its discretion, assert the statutory warranty claims and, in addition, request the removal of the defective item and the installation of a replacement (as remediation in kind), as well as compensation for the efforts undertaken by it and damages from the Contractor.
  6. All expenses incurred in connection with the discovery and remediation of defects, in particular the costs of inspection, the costs of removal and installation, transport, road, labour and material costs, as well as travel expenses, shall be borne by the Contractor. This also applies where expenses increase due to the fact that the deliverable was taken to a place other than the place of destination.
  7. Where the Contractor does not comply with the Customer's request to remedy the defect within a period granted by the Customer, the Customer has the right to take the required actions itself or have the defect remedied by third parties at the Contractor's expense. Where such period does not need to be granted, the Customer also has this right without granting the period for remediation.
  8. Without prior coordination, measures to remedy minor defects or to avert disproportionately large damage or to avoid endangering the operational safety of the Customer or third parties may be taken by the Customer or by the third party commissioned by the Customer at the expense of the Contractor. The Customer shall promptly notify the Contractor of the reason for, as well as the type and scope of, such actions. This shall not affect the warranty obligation of the Contractor.
  9. For goods, or parts thereof, which cannot be used by the Customer or the end customer as long as the defect exists or while the defect is being remedied, the warranty period shall be extended by the period of the interruption of use. For goods, or parts thereof, that are repaired or replaced, the warranty period shall commence anew at the time when the defect has been remedied.

15. Warranty / conformity of services with the contract (contracts for work or services, other contracts)

  1. With respect to contracts for work or services and other contracts, the Contractor must ensure that the contractually agreed services are provided with due care, correctly and in a timely and professional manner. The provisions set out in Section 15.2 of this agreement only apply to contracts for services and other contracts (Dienstverträge und sonstige Verträge); the other provisions of this Section 15 only apply to contracts for work (Werkvertrag).
  2. Special provisions only for contracts for services and other contracts: In the provision of services under contracts for services or other contracts, e.g. the management of transactions (Geschäftsbesorgung), the Contractor shall comply with the specifications and documentation agreed, quality agreements and the requirements resulting from the current state of the art of technology and science, as well as the relevant national and international legal regulations, including the regulations and guidelines of public authorities, trade associations and professional associations. The Contractor shall conduct a plausibility check before accepting the order. If the Contractor has any concerns regarding the type of design desired by the Customer, it shall notify the Customer of this in writing without undue delay.
  3. Special provisions only for contracts for work:
    a.) The Contractor warrants that the services provided by it under a contract for work will be free of deficiencies, will comply with the specifications and documentation agreed in the contract and the quality agreements, will be suitable for the contractually agreed use, will correspond to the current state of the art of technology and science, and will comply with the relevant national and international legal regulations, including the regulations and guidelines of public authorities, trade associations and professional associations. The Contractor shall conduct a plausibility check before accepting the order. If the Contractor has any concerns regarding the type of design desired by the Customer, it shall notify the Customer of this in writing without undue delay.
    b.) The warranty period is 36 months after acceptance. Where the statutory warranty period is longer, the statutory warranty period applies.
    c.)  All expenses incurred in connection with the discovery and remediation of defects, in particular the costs of inspection, the costs of removal and installation, transport, road, labour and material costs, as well as travel expenses, shall be borne by the Contractor. This also applies where expenses increase due to the fact that the deliverable was taken to a place other than the place of destination.
    d.) Where the Contractor does not comply with the Customer's request to remedy the defect within an appropriate period granted by the Customer, the Customer has the right to take the required actions itself or have the defect remedied by third parties at the Contractor's expense and also request an advance for costs from the Contractor. Where such period does not need to be granted, the Customer also has this right without granting the period for remediation.
    e.) Without prior coordination, measures to remedy minor defects or to avert disproportionately large damage or to avoid endangering the operational safety of the Customer or third parties may be taken by the Customer or third parties appointed by the Customer at the expense of the Contractor. The Customer shall inform the Contractor immediately of the reason, nature and scope of such measures. The warranty obligation of the Contractor shall not be affected thereby.
    f.) In the event of a remediation of a defect or a supplementary delivery, the limitation period shall commence anew (in the case of a remediation of a defect only with respect to the defect remedied and with respect to the fact that the remediation work is free of defects).
     

16. Rights of third parties

  1. The Contractor guarantees that the goods and services will be free of any rights of third parties. The Contractor undertakes to indemnify the Customer and its customers with respect to any damage and costs incurred by the Customer or its customers due to a failure to comply with this guarantee.
    The Contractor and the Customer will notify each other without undue delay of any risks of violations of law or alleged violations of law they become aware of and will try to prevent any related claims by mutual agreement.
  2. Where a contractually agreed use of the goods delivered or the service provided leads to a violation of rights of third parties, the Customer is entitled to purchase the necessary usage rights from the owner of the rights at the expense of the Contractor. The Contractor has a duty to support the Customer in out-of-court disputes or litigation with the owner of the rights.
    In addition, in the event of defects in title, the Customer shall have the rights it is entitled to under the applicable legal regulations. The limitation period for claims based on defects in title is 10 years.

17. Software

  1. The Customer may use the software which is part of the goods delivered, including the documentation, to the extent this is necessary for the contractually agreed use of the goods. The Contractor grants the Customer an irrevocable, non-exclusive license (which shall be unlimited in terms of time and place) in this respect.
  2. The Contractor shall check the software for viruses, trojans or other malware, using up-to-date, standard virus protection programmes, before it is shipped and installed.

18. Legal requirements, quality assurance, product liability

  1. The Contractor is advised that the Customer sells its products all over the world.
  2. The Contractor undertakes to comply with the legal regulations applicable to the goods at the place of destination, in particular those regarding accident prevention, occupational and machine safety, hazardous goods and protection of the environment. The Contractor must ensure that its goods comply with the provisions of Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH Regulation”). In particular, the Contractor must ensure that the substances contained in its goods, where this is required according to the provisions of the Reach Regulation, have been registered or pre-registered, and that all information necessary according to the provisions of the REACH Regulation, such as safety data sheets and/or chemical safety reports, will be made available to the Customer.
  3. The Contractor shall carry out quality assurance which is appropriate in type and scope and corresponds to the state of the art, and provide proof of this to the Customer upon request.
    At the Customer's request, the Contractor shall enter into an appropriate quality assurance agreement with the Customer.
  4. The Contractor must conduct inspections at the factory to ensure that the goods correspond to the technical specifications of the Customer and comply with the provisions in Sections 14.1 and/or 15.3.1. The Contractor has a duty to create records of the inspections conducted and to archive all test, measurement and inspection results for a period of 10 years. The Customer is entitled to view the documents and make copies of them at any time.
  5. Unless otherwise agreed in writing, the Contractor shall label or mark the deliverables to ensure that they can be permanently identified as products of the Contractor.
  6. If claims are brought against the Customer based on a violation of legal regulations, in particular safety regulations, or based on product liability under domestic or foreign laws, the Contractor has a duty to indemnify the Customer and its customers with respect to all claims that are due to goods delivered by the Contractor. This indemnification shall also include the costs of any precautionary recall campaign. Where this is possible and reasonable, the Customer will notify the Contractor of the content and scope of the recall campaign to be carried out and give the Contractor an opportunity to make a statement.
  7. The Contractor shall take out insurance with an adequate sum insured to protect against all product liability risks, including the recall risk, and shall provide the insurance policy to the Customer for review upon request.
  8. The Contractor shall notify the Customer of any changes in the composition of the material used or the constructive design of the goods delivered by it without being specifically requested to do so and without undue delay. The changes require the Customer's written consent. The Contractor and the Customer will notify each other of any risks of injury or alleged cases of injury of which they become aware without undue delay and will mutually endeavour to prevent any related claims.

19. Customs and foreign trade law

  1. The Contractor undertakes to comply with the applicable domestic and international customs and foreign trade law (collectively referred to as “foreign trade law”). The Contractor shall provide to the Customer in writing all information and data that the Customer needs to comply with foreign trade law for the export, import and reexport of goods, and shall do so at the latest 2 weeks after an order is placed or, where changes are concerned, without undue delay. This applies in particular to the following: a.) all applicable export list numbers, including the Export Control Classification Number specified in the US Commerce Control List (ECCN);
    b.) the commodity code specified in the current commodity classification for foreign trade statistics and the HS (Harmonized System) code, and
    c.)  country of origin (non-preferential origin) and, where requested by the Customer, supplier’s declaration regarding the preferential origin (for European suppliers) or preference certificates (e.g. movement certificate, declaration of origin) (for non-European suppliers).
    All of the aforementioned information and data is agreed as a condition of the goods delivered.
  2. If the Contractor breaches its duties set out in Section 19.1, the Customer has the right to rescind the contract and claim compensation for any damage incurred as a consequence. The Contractor shall indemnify the Customer in this respect.

20. Confidentiality; models; tools; documents; advertising

  1. The Contractor has a duty to treat all information (such as technical, commercial and organisational details) that it learns about in the context of its business relationship with the Customer as a trade secret and – both during and after completing the provision of the service – keep such information confidential and not make it available to third parties. This does not apply to information which is or becomes known to the general public without any violation of this provision.
  2. The Contractor has a duty to comply with all data protection regulations, as amended.
  3. Models, tools and devices that are produced or procured by the Contractor at the expense of the Customer shall become the property of the Customer after they have been paid for. They shall be handled by the Contractor with due care, shall be marked as property of the Customer and – where possible – shall be stored separately from other products of the Contractor, and shall be insured against loss and other damage at the expense of the Contractor. Products or parts thereof which are produced using these models and tools or these devices may only be produced for, or supplied to, the Customer. At the request of the Customer, the Contractor shall return all of the models, tools and devices to the Customer free from rights of third parties.
  4. All drawings, plans, sketches and other technical documents made available to the Contractor to process orders or provide services, as well as any materials provided to the Contractor, shall remain the Customer's property, even if they are incorporated. They shall be returned to the Customer at any time upon request and without undue delay after the contract has been performed without any special request.
  5. Documents and materials of the Customer may only be used for purposes of the Customer and only within the limits approved by the Customer. They must not be reproduced or made available to third parties without the prior written consent of the Customer.
  6. The Contractor may only refer to its business relationship with the Customer with the written consent of the Customer. The Contractor is not allowed to use trade names, logos or trademarks of the Customer.
    The Contractor is not allowed to present the deliverable specifically produced or processed for the Customer at trade fairs or make it available to third parties.

21. Severability clause

If a provision of a contract is or becomes invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced with the valid provision the parties would have agreed upon, reasonably taking into account the mutual economic interests, at the time when they executed the contract if they had been aware of the invalidity.

22. Venue and applicable law

  1. If the Contractor is domiciled in the EU or in the European Economic Area, the following applies: If the Contractor is a businessman, a legal entity under public law or a special fund under public law, or does not have a general place of jurisdiction in Germany, the exclusive venue shall lie in the courts with jurisdiction over the Customer's registered office. Notwithstanding the foregoing, the Customer may also bring a complaint at the Contractor's general place of jurisdiction.
    On the other hand, if the Contractor’s registered office is located outside of the EU and the European Economic Area, all disputes arising under and in connection with the contracts executed subject to the applicability of these General Terms and Conditions of Purchase shall exclusively be settled by the court of arbitration of the Hamburg Chamber of Commerce. Its decisions are final and there is no recourse to the ordinary courts. The defendant is entitled to bring a counterclaim before the court of arbitration. The place of arbitration is Hamburg. The proceedings, and in particular the taking of evidence, shall be conducted in accordance with the arbitration rules and the rules of Book 10 of the German Code of Civil Procedure (Zivilprozessordnung). Procedural principles of common law, including, without limitation, those relating to the production of documents, do not apply (neither directly nor by analogy). If one party must pay the other party’s legal expenses in connection with the arbitration proceedings, such expenses shall be limited to the costs that may be charged according to the German Lawyers’ Compensation Act (Rechtsanwaltsvergütungsgesetz, RVG).
  2. The mutual legal relations shall be governed by the laws of the Federal Republic of Germany. The conflict of law provisions of international private law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply.

Compliance Notice

Please be advised that our employees have been instructed to comply with all applicable legal regulations and the values and principles of ERC.
In particular, our employees must not request, solicit promises for or accept any improper advantages or benefits.

Stand: 1. February 2020