Conditions
General terms and conditions of Frerk Aggregatebau GmbH

XI. Arbitration clause

I. General Scope

1. Our requests, the orders, order confirmations and receipts of deliveries and services are to be made exclusively on the basis of the following “General Terms and Conditions of Purchase”. Insofar as the following terms and conditions do not contain any deviating terms and conditions, the General Terms and Conditions of Frerk Aggregatebau GmbH also apply. Contractual conditions of the supplier which conflict with or deviate from the present General Terms and Conditions of Purchase shall neither be acknowledged nor considered unless we have expressly agreed in writing. Our GTP shall remain in force even if we unconditionally and in full awareness accept a delivery from a supplier whose terms oppose or deviate from our GTP.
2. All agreements are to be made in writing. Telefax or E-Mail is sufficient. 
3. Our GTP are valid for legal persons under public law, a special asset under public law or a company which, by signing the contract, pursues their commercial or independent professional activities. 

II. Offer documents, conclusion of contract and contract content

1. These terms and conditions of purchase are valid regardless of the legal nature of the contract signed with the supplier, which is to say that they are valid for sales contracts, labour contracts, contracts for labour and materials, and service contracts, as well as for all other contractual relationships within which we obtain deliveries and services from the supplier, or make use of services of any kind provided by the supplier.
2. Our orders shall only be binding when placed in writing and in subordination to the present terms and conditions of purchase. Drawings, samples and specifications provided for the contract are part of the order.
3. The supplier must confirm their acceptance of any order issued by us promptly. They must do so within 3 working days (Monday to Saturday) at the latest from the order letter dated by us, in writing, by means of a signed copy of the order or the same contents of the order. Once this time limit is exceeded, our order shall no longer be effective, or we shall be entitled to withdraw our order free of charge.
4. Our terms and conditions of purchase shall also be valid for all future business with the supplier. The separate Quality Assurance Agreement (QAA), as well as Frerk’s packaging and delivery requirements in each case, form part of our order.

III. Prices, payment conditions and accounting

1. 1. The prices agreed upon are fixed net prices. They include all expenditure in connection with the deliveries and services to be provided by the supplier. The statutory sales tax is not included in the prices.
2. We pay upon supply of the delivery or service in accordance with the contract as well as receipt of the proper invoice within 14 days with a 3% discount from the gross invoice amount, or within 45 days net.
3. All invoices must also carry, alongside our order and delivery number, the order date, and are to be sent to us in duplicate. Invoices which do not conform to this model will be sent back, without prejudice to our rights as set out in the agreed payment conditions.
4. Invoices must not be packaged in with the dispatch. Default of payment by our company shall only be excluded once a proper invoice has been received. Additional legal (and especially fiscal) duties of the supplier regarding the structure of the invoices shall remain unaffected.
5. We shall be entitled to the full range of set-off and retention rights stipulated by law.  Claims of the supplier against us cannot be assigned to third parties.

IV. Delivery, place of delivery, customs, delivery time, delayed delivery and control obligation

1. 1. Delivery times and delivery schedules stated in the purchase order are binding. They commence as of the date of order and refer to receipt of the delivery of the order at Frerk. 
2. The deliveries are to be made CIP (Carriage Insurance Paid, most recent Incoterms) to a location determined by us and, unless determined otherwise, shall include packaging and conservation.
3. For deliveries and services which are rendered from an EU country outside of Germany, the supplier must indicate their EU-VAT-ID number.
4. Imported goods must be delivered duty-paid. Within the provisions of Regulation (EC) No. 1207 / 2001, the supplier is obliged, at their own cost, to issue the declarations and information required, authorize checks executed by customs authorities, and supply the necessary official confirmations.
5. The supplier is obliged to inform us in writing and in detail of any possible approval obligations for (re)exports of their goods pursuant to the German, European and US export and customs provisions and the export and customs provisions of the originating country of their goods and services.
6. Delivery notes containing our order, assignment and item numbers are to be issued in a timely fashion for shipments of any kind. Our shipment instructions, as well as the general regulations of the transport industry, are to be complied with. The supplier is liable for any damage resulting from the non-observance of them.
7.  The goods are to be packaged dry in a suitable manner for proper transport, free of charge for us, unless otherwise expressly agreed upon by conclusion of contract. The supplier is obliged to take the packaging back, following registration, at the supplier’s cost, should we so wish.
8. Should the supplier become aware that the contractual intermediate or final deadline will not be met, for any reason, the supplier must immediately communicate this to us in writing, indicating the specific reasons and the estimated length of the delay. The subsequent costs shall be for the supplier’s account. Modifications or amendments of the order effected at a later stage shall not affect the delivery date set unless this is expressly agreed upon in writing.
9. A contractual penalty of 0.5% shall be applied for each started week of the delay, such penalty, however, is not to exceed 5% of the value of the delivery/service (net). A retention of the contractual penalty upon acceptance of the delivery or service is not required; it is sufficient that the contractual penalty be retained upon settlement of the contract. The assertion of a contractual penalty shall not prejudice the claim to contractual performance, and in particular the right to withdrawal from the contract and compensation.
10. Deliveries ahead of time and partial deliveries within 5 working days are subject to our prior, explicit written consent. We reserve the right to return deliveries arriving earlier than agreed at the supplier’s cost. If the goods are not returned in the event of early delivery, they shall be stored at the supplier’s expense and risk until the delivery date.
11. Should the supplier also not effect their delivery within a period of grace set by us (Section 634 BGB (German Civil Code) para.1 sentence 1), then we shall be entitled, even without warning, to decline acceptance, to withdraw from the contract or to demand compensation for non-fulfillment (Sections 463, 480 para.2 BGB; 635 BGB). We shall also have the right to withdraw from the contract if the supplier is not responsible for the delay. The additional expenses incurred due to the delay, in particular those owing to a different sort of coverage made necessary by the delay, shall be borne by the supplier.
12. In addition to the right to use software to the extent permitted by law (Section 69a et seq. of the Copyright Act), we have the right to use software, which belongs to the scope of delivery, including its documentation, with the agreed performance characteristics and to the extent necessary for use of the product in accordance with the contract. We may also make a back-up copy without any explicit agreement

V. Acceptance and transfer of risk

1. 1. Irrespective of the pricing terms agreed, the risk for items without installation or assembly shall pass to us upon receipt at the delivery address specified by us, and the risk for items with installation or assembly shall pass to us upon successful conclusion of acceptance. The start-up or use of same shall not substitute for our declaration of acceptance. 
2. Ownership of the goods delivered shall be transferred to us upon payment. Any prolonged or expanded retention of ownership is excluded.

VI. Material defects, title defects and warranty

1. We shall not be obligated to inspect the merchandise upon receipt. We shall attempt to inspect the merchandise for defects, especially accuracy, completeness and suitability, by way of sampling during the proper course of business. Section 377 HGB (German commercial code) is excluded, wherever this is permissible. Any complaint within 45 days after discovery of any fault or other deficiencies shall be deemed as being timely. The supplier waivers the objection for delayed notice of defects. 
2. Irrespective hereof, we are entitled to demand from the supplier at our discretion either the remedy of the defect or a substitute delivery. In this event, the contractual partner shall bear the expenses necessary to remedy the defect or to provide for the replacement. We nonetheless reserve the right to claim for damages.
3. Notwithstanding Section 442 para. 1, sentence 2 BGB (German Civil Code), we are also entitled to claim for defects without restriction if the defect remained unknown to us upon conclusion of the contract as a result of gross negligence.
4. The warranty period shall be 36 months, or the applicable statutory minimum warranty period if it is longer, starting with the transfer of risk, unless the merchandise has been used for a construction, in compliance with its customary use, causing defectiveness thereof.
5. Regarding defects in title, the supplier shall hold us harmless from any third-party claims. A 10-year statute of limitations applies for defects in title.
6. supplier guarantees that all deliveries are free from third party property rights and, in particular, that neither the deliveries nor the use of the goods delivered infringe any patents, licences or other third party property rights within Germany. If the supplier knows that their products are distributed by Frerk in certain countries, this shall also apply to these countries.
7. Where we incur any costs due to the defective delivery of the contractual object, in particular any transport, call-out, work or material costs or costs for any delivery inspection exceeding the usual scope, these costs shall be assumed by the supplier.

VII. Product liability and exemption

1. If claims are made against us because of violation of official safety precautions or because of domestic or foreign product liability regulations or laws, resulting from defectiveness of the product used, the cause of which is traced back to a commodity of the supplier, we shall be entitled to demand from the supplier compensation for this damage to the extent that the damage was caused by the products supplied by the supplier. This damage also includes the cost of any recall action which may be required. If a defect occurs in a part delivered by the supplier, it shall be assumed that the defect has occurred exclusively within the area of responsibility of the supplier.
2. The supplier shall maintain a product liability insurance policy. The amount covered shall be no less than EUR 5,000,000.00 per case of personal injury/damage to property, as blanket cover; if we are entitled to further claims for damages, these shall remain unaffected.

VIII. Retention of ownership and provision of materials

1. We reserve the ownership of materials provided by us. The material shall only be used for its intended purpose. The supplier undertakes processing or transformation on our behalf. In the event of processing or admixture of our retained merchandise with other materials not in our possession, we shall acquire co-ownership in the new merchandise pro-rated by the value of our materials (purchase price plus VAT) relative to the value of the other processed materials at the time of processing.
2. If the material provided by us is intermixed inseparably with others not belonging to us, we shall acquire co-ownership of the new article in proportion to the value of the conditional goods (purchase price plus VAT) to the other intermixed articles at the time of intermixture. In the event that the commingling is effected in such a way that the supplier’s asset shall be regarded as the prime asset, it is agreed that the supplier shall transfer joint title to us proportionately. The supplier shall hold sole ownership or joint ownership in safe custody for us.

IX. Force majeure, copyrights, industrial property rights

1. Unpredictable, unavoidable and/or exceptional events which are beyond our control and exercise a major influence on our operations or even result in suspension of them, shall release us from our obligation to take delivery.
2. We are entitled to withdraw from the contract if an occurrence described in point 1 lasts longer than three months, unless the case at hand is a special production for us. In the event of such a termination, the supplier shall not be entitled to any compensation.
3. If we do not exercise our right to withdraw from the contract, we shall be released from the obligation to contractual performance for the duration of the hindrances designated in point 1.
4. Drawings, samples, processes, etc. which have been provided along with our order remain under our ownership. The supplier is expressly obliged not to use the aforementioned documents for deliveries to third parties, whether directly or indirectly. They must be returned to us in serviceable condition together with the last delivery or service from the corresponding order. These documents shall be used by the supplier, and only be made accessible or known to third parties insofar as this is absolutely necessary for the execution of our order, and only when we have consented to this in writing and in advance.
5. All business and technical details of our business relationship which are not already common knowledge are to treated confidentially and must not be divulged to third parties.
6. The supplier shall be responsible for ensuring that the use and resale of the goods ordered by us is permissible without infringement of a third party’s industrial property rights (patents, utility models, trademarks, licence rights, etc.). The supplier keeps us indemnified against any claims for infringement of third party property rights. Should third party industrial property rights be infringed, we shall be entitled to withdraw from the contract and demand damage compensation in accordance with the legal preconditions.
7. In the event of legal proceedings due to infringement of property rights, the supplier must provide securities for the full amount of the proven or impending damage. The supplier, moreover, shall bear all legal and non-legal costs and expenses incurred in relation to legal proceedings due to infringement of property rights.
8. Points 6. and 7. above shall not apply if the supplier can prove that they have not been at fault for the infringement of property rights. 
9. We shall be entitled to all property rights resulting from an invention in connection with the contractual performance, or from know-how obtained in connection with it.
10. We are entitled to the sole ownership and copyright of drawings, models, tools, devices and software developed in the course of the order execution which have served as aids for carrying out the order. We are entitled to make them accessible to third parties and to use them ourselves. Should the contractual object in the delivery comprise a planning or other predominantly development performance (e.g. design or development work), we shall not be restricted to the contractually agreed usage of the performance.

X. Safety, documentation, environmental protection

1. All goods and services of the supplier must comply with the current statutory provisions and directives, in particular those concerning safety and environmental protection, including the directive on hazardous substances, the German Electrical and Electronic Equipment Act (”ElektroG”) and the safety recommendations of the competent German professional associations e.g. VDE, VDI and DIN. The respective certifications, testing certificates and other records shall be added to the deliveries free of charge. The EC certificate of conformity in accordance with the relevant machine and EC directives must be sent as part of the documentation included in the scope of delivery. Insofar as more far-reaching requirements are not stipulated in the order, the delivery items are to be supplied in the quality usual in the trade and, insofar as DIN/EN or their equivalent standards pertain, in compliance with the latter, attaching the corresponding documentation/specification of goods. The supplier expressly guarantees that the materials supplied are not contaminated and do not contain impurities. Any resulting costs shall be assumed by the supplier. For software products, the delivery obligation is only fulfilled once the complete (systems and user) documentation has been handed over. In the case of any programs specifically written for us, the program must also be delivered in source code format.
2. If the supplier brings deliveries or services onto our premises, the supplier is obliged to observe the safety, environmental and fire protection instructions in their version applicable in each case.
3. The supplier shall be obliged to determine the current state of the legal provisions and regulations with regards to substance restrictions, and to comply with them. The supplier is obliged to use non-prohibited substances. Hazardous substances and substances to be avoided as defined by the valid laws and guidelines must be stated by the supplier on the specifications. If applicable, safety data sheets must be submitted already along with the supplies, as well as the delivery note with the first delivery. (These documents are to be submitted at least in German or English.) Information on breaches of substance restrictions and the delivery of prohibited materials must be communicated to us immediately.
4. For deliveries and for performing services, the supplier shall be solely responsible for compliance with the accident prevention regulations. Thereafter, any protective equipment as well as any instructions by the manufacturer required to comply with these regulations must be supplied together with the goods or services free of charge.

XI. Anti-corruption clause

1. The supplier declares that they have not taken part in inadmissible agreements restricting competition in the last two years, and that neither economic law nor antitrust proceedings are pendent against them.
2. Without prejudice to other termination and withdrawal rights, we are entitled to terminate or withdraw from the contract without notice should the supplier or their employees
   • a) offer, promise or supply gifts, other grants or other advantages, whether directly or indirectly, to our employees who have been entrusted to the supplier for the preparation, completion or execution of the contract, or to related parties.
   • b) commit criminal offences against us or are accomplice in criminal offences against us which fall under Section 298 StGB (German Penal Code) (Anticompetitive arrangements in tenders), Section 299 StGB (Bribery and corruptibility in commercial transactions), Section 333 StGB (Granting of advantages), Section 334 StGB (Bribery), Section 17 UWG (Unfair Competition Law) (Betrayal of business and trade secrets) or Section 18 UWG (Use of templates).
3. In the event of a breach as defined in paragraph 1. or 2., the supplier shall be obliged to pay a penalty sum of 10% of the order amount. Any additional damage claims shall remain unaffected.

XII. Place of fulfillment and jurisdiction

1. 1. The place of fulfillment is Schweringen.
2. For all disputes arising out of the contract, action is to be raised at the court that is competent for our head office if the supplier is a merchant, a legal person under public law or a special asset under public law. We shall also be entitled to file suit at the headquarters of the supplier.
3. German law applies.