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General Purchasing Conditions (AEB)

of ACG Automation Center Germany GmbH & Co. KG (as of January 1st, 2021)

This is an automatic translated english version of the original German general purchasing conditions. Only the german version is legally binding.

I. Scope, form

  1. These general terms and conditions of purchase (AEB) apply to all business relationships with our business partners and suppliers (“seller”). The AEB only apply if the seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law

  2. The AEB apply in particular to contracts for the sale and/or delivery of movable items (“goods”), regardless of whether the seller manufactures the goods himself or buys them from suppliers (§§ 433, 650 BGB).

  3. These AEB apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the seller only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement for approval applies in any case, for example even if we accept the seller's deliveries without reservation in knowledge of the seller's general terms and conditions

  4. In individual cases, individual agreements made with the seller (including ancillary agreements, supplements and changes) always take precedence over these AEB. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.

  5. Legally relevant declarations and notifications by the seller in relation to the contract (e.g. setting a deadline, reminder, withdrawal) must be made in writing, ie in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and other evidence, especially in the case of doubts about the legitimacy of the declarant, remain unaffected.

  6. References to the validity of legal regulations only have clarifying meaning. Even without such a clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these AEB

 

II.  Offer documents, copyright, confidentiality

  1. We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents are to be used exclusively for the contractual service and are to be returned to us after the contract has been completed.

  2. The documents must be kept secret from third parties, even after the end of the contract. The confidentiality obligation only expires if and to the extent that the knowledge contained in the documents provided has become public knowledge

  3. The above provisions (II. Nos. 1 and 2) apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items that we provide to the seller for production

As long as they are not processed, such items are to be stored separately at the seller's expense and insured to a reasonable extent against destruction and loss.

 

II.  Delivery time and delay in delivery

  1. The delivery time specified by us in the order is binding. The seller is obliged to inform us immediately in writing if he is unlikely to meet the agreed delivery times - for whatever reason

  2. If the seller does not provide his service or not within the agreed delivery time or if he is in default, our rights - in particular to withdrawal and compensation for damages - are determined by the statutory provisions

 

III. Subcontractors, procurement risk

  1. The seller is not entitled to have third parties (e.g. subcontractors) perform the service owed by him without our prior written consent

  2. The seller bears the procurement risk for his services, unless otherwise agreed in individual cases (e.g. limitation to stock).

IV. Prices and terms of payment

  1. The price stated in the order is binding. All prices include statutory sales tax, unless this is shown separately

  2. Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the seller (e.g. assembly, installation) as well as all additional costs (e.g. proper packaging, transport costs including any transport and liability insurance).

  3. We do not owe interest on maturity. The statutory provisions apply to default in payment

  4. We are entitled to rights of offsetting and retention as well as the objection of non-fulfilment of the contract to the extent permitted by law. In particular, we are entitled to withhold payments that are due as long as we have claims from incomplete or defective services against the seller

  5. The seller only has a right of offsetting or retention due to legally established or undisputed

 

V. Items Provided and Retention of Title

  1. Any processing, mixing or connection (further processing) of items provided by the seller is carried out for us. The same applies to further processing of the delivered goods by us, so that we are considered the manufacturer and at the latest with further processing in accordance with the statutory provisions, ownership of the product

  2. The goods must be transferred to us unconditionally and without regard to the payment of the price

  3. However, if we accept an offer by the seller for transfer of title that is conditional on the payment of the purchase price, the seller's retention of title expires at the latest when the purchase price for the delivered goods is paid. All other forms of retention of title are excluded, in particular extended, forwarded and extended to further processing

 

VI. Defective delivery

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

  2. According to the statutory provisions, the seller is particularly liable for ensuring that the goods have the agreed quality when the risk passes to us

In any case, those product descriptions that are the subject of the respective contract or were included in the contract in the same way as these AEB – in particular by designation or reference in our order – shall be deemed to be an agreement on the quality. It makes no difference whether the product description comes from us, from the seller  or from the manufacturer.

  1. We are not obliged to examine the goods or make special inquiries about any defects upon conclusion of the contract. Partially deviating from § 442 paragraph 1 sentence 2 BGB, we are entitled to unrestricted claims for defects even if we were unaware of the defect at the time the contract was concluded due to gross negligence

  2. The statutory provisions apply to the commercial duty to examine and give notice of defects

{§§ 377, 381 HGB) with the following proviso: Our duty to inspect is limited to defects that come to light during our incoming goods inspection under external assessment including the delivery documents (e.g. transport damage, wrong and short deliveries). If acceptance has been agreed, there is no obligation to inspect. It also depends on the extent to which an investigation is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected.

  1. Subsequent performance also includes removing the defective goods and reinstalling them if the goods were installed in another item or attached to another item in accordance with their type and intended use; our statutory right to reimbursement of corresponding expenses remains unaffected. The seller shall also bear the expenses required for the purpose of testing and supplementary performance if it turns out that there was actually no defect. Our liability for damages in the event of unjustified requests to remedy defects remains unaffected; in this respect, however, we are only liable if we have recognized or failed to recognize through gross negligence that there is no defect

  2. Irrespective of our statutory rights and the regulations in paragraph 5, the following applies: If the seller fails to meet his obligation to provide supplementary performance - at our discretion by eliminating the defect (repair) or by delivering an item free of defects (replacement delivery) - within a reasonable period set by us after that, we can remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the seller. If the supplementary performance by the seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline is required; We will inform the seller of such circumstances immediately, if possible beforehand.

  3. Otherwise, in the event of a defect in quality or title, we are entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, according to the statutory provisions, we are entitled to claims for damages and damages

VII. Supplier Recourse

  1. Our statutory recourse claims within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 BGB) are unrestricted in addition to claims for defects. In particular, we are entitled to demand exactly the type of supplementary performance (repair or replacement delivery) from the seller that we owe our customer in the individual case. Our statutory right to choose (§ 439 Para. 1 BGB) is not restricted by this.

  2. Before we recognize or fulfill a defect claim asserted by our customer (including reimbursement of expenses according to §§ 445a Paragraph 1, 439 Paragraph 2 and 3 BGB), we will inform the seller and ask for a written statement with a brief description of the facts. If a substantiated statement is not made within a reasonable period of time and no amicable solution is brought about, the claim for defects actually granted by us is deemed to be owed to our customer. In this case, the seller is responsible for

  3. Our claims from supplier recourse also apply if the defective goods have been further processed by us or another entrepreneur, e.g. by installing them in another product.

VIII. Producer Liability

  1. If the seller is responsible for product damage, he must indemnify us from third-party claims to the extent that the cause lies within his sphere of control and organization and he himself in the external relationship

  2. As part of his indemnification obligation, the seller is happy to have expenses. §§ 683, 670 BGB, which result from or in connection with claims made by third parties, including recall campaigns carried out by us. We will inform the seller - as far as possible and reasonable - about the content and scope of recall measures and give him the opportunity to comment. Further legal claims remain unaffected.

IX.  Statute of limitations

The mutual claims of the contracting parties become time-barred in accordance with the statutory provisions, unless otherwise specified below.

X.  Choice of law and jurisdiction

  1. The law of the Federal Republic of Germany applies to these AEB and the contractual relationship between us and the seller, to the exclusion of international uniform law, in particular the UN Sales Convention.

  2. If the seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship is our place of business in 88069 Tettnang, Germany. The same applies if the seller is an entrepreneur within the meaning of Section 14 of the German Civil Code. In all cases, however, we are also entitled to file suit at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the seller's general place of jurisdiction. Overriding legal regulations, in particular regarding exclusive responsibilities, remain unaffected.

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