General conditions of purchase

1. Application

1.1 The General Terms and Conditions of Purchase set out below apply exclusively to all purchase orders issued and contracts concluded (hereinafter also referred to as “Orders”) – also in the future – by AE Industry GmbH (hereinafter referred to as “Buyer” or “we” or “us”) and its affiliated companies within the meaning of Section 15 et set. of the AktG (German Stock Corporation Act) on the delivery of goods, in particular also machine and plant parts, as well as on the performance of services, in particular also assembly services and monitoring services during commissioning (hereinafter collectively referred to as “Delivery”). Any deviating or supplementary terms and conditions of our supplier or other contractual partner (hereinafter referred to as “Contractor” or “Supplier”) will not be binding for us, even if we fail to expressly object to them in individual cases or if we accept the Contractor’s Delivery without reservation in the knowledge of the Contractor’s conflicting terms and conditions.

1.2 If one or several provisions of the Order or of these Terms and Conditions of Purchase are or become ineffective or unenforceable, in whole or in part, the validity of the remaining provisions shall remain in full force and effect. The legal concept set out in Sec. 139 of the BGB (German Civil Code) does not apply, also in the sense of a burden of proof rule.

2. Purchase order and conclusion of contract; documents, drawings, etc.

2.1 Purchase orders, contracts, delivery call-offs, amendments and supplements will only be binding for us if they have been issued in writing, duly signed and were allocated a purchase order number and date. Orders placed over the telephone or verbally are only binding for us if such are confirmed immediately, in writing. Any amendment, supplement, side agreement or similar shall be made in writing and confirmed by us, in writing, in order to be effective. The written form requirement may only be waived in writing.

2.2 Offers, the preparation of drafts, production of samples or specimen by the Contractor shall be free of charge for us, unless otherwise agreed in writing. Drawings (with detailed dimensions) and order-related documents of the Contractor shall be supplied to us free of charge, to the extent agreed in each case. All drawings and documents that are necessary for the proper execution of assemblies, monitoring, repairs, procurement of replacement parts and maintenance, which fully describe the function of the delivered object, or which are necessary for obtaining authorisations or similar, must be supplied free of charge in any case. We are authorised to use these drawings and documents for the manufacture of replacement parts, modifications and the like – also by using commissioned third parties.

2.3 The Contractor must confirm our Offer / purchase order, in writing, within 10 calendar days, otherwise we are entitled to withdraw it. Sec. 147(2) of the BGB shall remain in full force and effect.

2.4 The documents, drawings, samples, models, etc. provided by us to the Contractor as well as the objects, materials and tools provided by us will remain our property, subject to mandatory statutory provisions. Any processing or installation shall be performed exclusively for us. The Contractor shall inform us immediately if there is a threat of access by third parties (e.g. seizures to our property (including items in which we have acquired a co-ownership by way of combination, mixing or processing). The risk of accidental loss and damage will pass to the Contractor upon handover of the above-mentioned documents and objects. After completion of the Order, all objects, documents, etc., any reproductions as well as all other materials shall be returned to us immediately without a request, at the expense and risk of the Contractor. We reserve all rights to the documents and objects which were prepared according to our specifications.

2.5 The objects and documents provided by us to the Contractor shall be kept in confidence and must be kept in secret insofar as they contain business secrets. Such must not be sold, pledged or otherwise passed on or made accessible to third parties or used in any way for third parties without our consent. The same applies to objects produced with the aid of these objects and documents, unless we agree to their use for other purposes. This also applies to items which the Contractor has developed or further developed according to our specifications and with our not only insignificant cooperation. The knowledge gained from the co-operation between the Contractor and us must not be disclosed to any third parties, unless the Contractor is legally obligated to disclose it or we give our consent to such disclosure. Such shall be stored and maintained with care. The products manufactured according to such may only be delivered to us. The Contractor will commit their subcontractors and sub-suppliers in the same way. The Contractor will be liable for culpably caused damage resulting from non-compliance with these regulations. The duty of secrecy will also apply after termination of the Contract and will end if the information to be kept secret has become public knowledge without any involvement of the Contractor.

3. Prices and payment terms

3.1 All prices specified in the purchase order are fixed prices, unless otherwise agreed. They are quoted free shipping address and include any and all packaging and all other costs of delivery, such as e.g. taxes, customs duties, etc., unless the transport company is appointed by us or we carry out the transport ourselves or unless expressly otherwise agreed in writing. Insofar as the Contractor is obligated to perform assembly services, they shall also provide the tools and aids (e.g. lifting equipment, containers, etc.) required to carry out such assembly services at no additional cost to us.

3.2 Invoices must be issued by quoting our order number and shall be sent in digital form to the e-mail address provided by the Buyer. No invoices must be enclosed with the Delivery.

3.3 Agreed advance payments, instalments and payments on account shall be requested by the Contractor, in writing, in due time and shall be specially identified. Advance payments will only be made against the provision of a directly enforceable, irrevocable and unlimited bank guarantee issued by a major German bank or a German credit institution under public law, with the guarantor waiving the right of deposit and the defences of advance claim, invalidity and set-off, with the exception of setoff against recognised or legally established claims.

3.4 The payment will be made, unless otherwise agreed, by means of bank transfer, depending on the subject matter of the Contract, after delivery or acceptance and receipt of invoice, without any deductions within 60 days from the end of the month on the tenth of the following month. If a cash discount has been agreed in the Order, then this deduction of the cash discount shall be permissible even in the case of offsets or when justifiably exercising the right of retention based on defects. The payment shall be made subject to invoice verification.

3.5 The Contractor is not authorised to assign their claims against us or to dispose of them in any other way, unless we have given our prior written consent which we will not unreasonably withhold.

4. Delivery period and shipment terms, compliance with regulations, insurances

4.1 The dates and deadlines stated in the Order or otherwise agreed will be binding and, unless otherwise agreed, shall only be fulfilled upon complete delivery to the Buyer or to a location specified by the Buyer. The Contractor will be in default when the delivery date expires without the necessity of a reminder.

4.2 Partial, advance or short deliveries as well as deliveries outside our business hours (please refer to our Order for our business hours) require our prior written consent. Such will not justify any claim for early payment. Partial, advance or excess deliveries made without our consent may be returned or stored at the Contractor’s expense and risk. If the goods are returned, the Contractor must deliver them again on the agreed date. The acceptance of a delayed delivery or service does not constitute a waiver of any claims for damages caused by the delay.

4.3 We are entitled to dictate the transport route and means of transport to the place of receipt at our reasonable discretion. The goods to be delivered are to be packaged in an environmentally friendly and recyclable manner or otherwise packaged at our request. The packaging should ensure protection against damage, soiling and moisture during transport. Damage due to inadequate packaging will be borne by the Contractor even if we made no separate specifications. Upon delivery, the individual types must be packed separately and clearly labelled with the corresponding part number, order or commission number and purchase order number.

4.4 We will only pay any packaging costs if the compensation for such has been expressly agreed. Notwithstanding their statutory and regulatory obligations, the Contractor will be obligated to take back, at our request, the transport packaging of the Delivery at its own expense and at the place of delivery or to have it taken back by a third party commissioned by them. If we return the packaging, carriage paid, the freight costs invoiced to us shall be reimbursed, in full, by the Contractor. The Contractor will indemnify us against all claims of third parties which are directed against us on the occasion of or in connection with the possession or use of the transport packaging.

4.5 The Contractor will provide us, together with the Delivery, with detailed delivery documents in duplicate stating the order date, the purchase order, delivery and article number, weight, item and model number, if applicable, as well as the description of the goods. Delivery note and packing slip shall be enclosed with the relevant shipment.

4.6 At the latest on the day of dispatch, a shipping notice shall be sent to us, in advance, via fax or e-mail.

4.7 Upon dispatch and handover, the Contractor acknowledges and thereby warrants that the delivered goods comply with the provisions of the German Product Safety Act and the general, recognised, technical, safety-related and occupational-medical health regulations, as amended, as well as with the occupational safety, accident prevention and emmission control regulations and that all laws, regulations, guidelines and leaflets issued by the legislator, competent supervisory authorities, employers’ liability insurance associations, trade associations and technical inspection associations have been observed. We must be informed of the accident prevention and safety regulations applicable to the Delivery at the place of installation and the Delivery must comply with these regulations. Electrical installations must comply with VDE (German Testing and Certification Institute) regulations.

4.8 In the case of works at our premises, the Supplier shall only assign employees who have the required qualifications for the work. Upon request on short notice, the Supplier shall provide us with certifications for a random examination. Persons who carry out work for the Contractor in fulfilment of the contract on our factory premises or on the customer’s construction site must observe the provisions of the respective company rules. The regulations applicable to entering and leaving the factory premises must be complied with. The Contractor must ensure that the personnel they deploy are fully covered by social insurance and the employers’ liability insurance and hold the necessary residence and work permits.

4.9 The Contractor shall ensure that they comply with the statutory provisions applicable to them when executing the Order. This applies, in particular, to anti-corruption and money laundering laws as well as antitrust, labour and environmental protection regulations. In particular, they must comply with the statutory provisions of the German Minimum Wage Act (MiLoG) and the German Posted Workers Act (AEntG) and ensure that the subcontractors they employ and their subcontractors do the same. The Contractor is obligated to provide the Buyer with proof of compliance with the provisions of the German Minimum Wage Act at any time upon request. The Contractor will indemnify the Buyer against any claims under the provisions of the AEntG or the MiLoG, also with regard to the subcontractors engaged by the Contractor and their other subcontractors.

4.10 The Contractor shall be obligated to hold sufficient liability insurance with the following minimum amounts of cover and to provide us with proof of such prior to performing the work:

- For personal injury EUR 5,000,000 per person and claim;

- For property damage EUR 5,000,000 per claim;

- For pecuniary damage EUR 5,000,000 per claim;

And in any case at least EUR 10,000,000 per calendar year. Immediately after conclusion of the contract, the Contractor engaged with delivering the goods as defined in Sec. 4 of the German Product Liability Act is obligated to take out product liability insurance of an appropriate amount, at least three times the value of the goods to be delivered, unless such is already in place, and to maintain the product liability insurance until the expiry of the period of liability for defects. At the beginning of each calendar year, the Contractor shall be obligated to submit to the Buyer, without the need for a request, suitable evidence of the insurance policies to be taken out by them. The Buyer will not be obligated to make instalment payments, until such evidence has been submitted.

4.11 The Contractor will be liable for all culpably caused additional costs and damage resulting from non-compliance with this item 4.

5. Default

5.1 As soon as any delay in Delivery becomes apparent, the Contractor shall inform us immediately, stating the reasons and the expected duration of such delay. The Contractor will not be released from the statutory consequences of default on account of such notification of the delay. If it becomes apparent that agreed delivery dates cannot be met, the Contractor shall take suitable measures in good time (e.g. shift work, overtime, work on weekends and public holidays, deployment of more personnel, express deliveries, etc.) in order to meet the delivery dates. The Contractor shall bear the costs for such.

5.2 The Contractor will be liable in accordance with the statutory provisions in case of default. If the Contractor is in default with a partial delivery, we may also assert the rights to which we are entitled in respect of those parts of the Delivery with which the Contractor is not yet in default.

5.3 Notwithstanding any further statutory or contractual claims, in the event of default on the part of the Contractor, we shall be entitled to demand, in addition to fulfilment, a contractual penalty of 0.2% of the total order value excluding VAT per work day, but no more than 5% of the total order value excluding VAT, as minimum damages. If the delay is limited to a partial service or partial delivery, the contractual penalty of 0.2% per work day or the upper limit of 5% shall be calculated on the part of the total order value excluding VAT attributable to the partial service or partial delivery. The contractual penalty shall, in any case, be limited to 5% of the total order value. We undertake to declare the reservation of the contractual penalty to the Contractor within 10 work days, calculated from receipt of the delayed delivery, and, in the case of partial deliveries calculated from receipt of the last partial delivery or in the case of work services not later than until final payment. If the contractual penalty can be allocated to individual partial services, the period of 10 work days will apply from acceptance of the respective partial service. Any further claims for damages by the Buyer will remain in full force and effect. However, the contractual penalty shall be offset against such claims for damages.

5.4 The Contractor can only invoke the lack of necessary documents or parts to be supplied by us if they have expressly reminded us of such, in writing, and have nevertheless not received them on time. In this case, the Contractor may, to the exclusion of any other claims, demand a reasonable extension of the delivery period, but by no more than the period of the delay in making the provision.

5.5 Events of force majeure or obstacles not attributable to us which make it impossible or significantly more difficult to accept the delivery or service in our company or at our customer’s premises shall postpone our acceptance obligation for the term of their duration.

6. Place of delivery and place of fulfilment, acceptance and transfer of risk

6.1 The place of fulfilment for all mutual obligations arising from the contract is the plant specified in our purchase order, unless we expressly state a different shipping address in our purchase order.

6.2 Insofar as Sec. 377 of the HGB (German Commercial Code) is applicable, the statutory provisions (Sections 377, 381 of the HGB) shall apply with the following proviso: our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection by making an external examination, including the delivery documents (e.g. transport damage, incorrect and short delivery) or which are recognisable during our quality control by random sampling. No duty to inspect shall apply, insofar as an acceptance has been agreed. Furthermore, it 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 that were discovered later remains in full force and effect. Notwithstanding our duty to inspect, our complaint (notification of defects) will be deemed to have been made immediately and in good time if it is sent within 7 days after the discovery or, in the case of obvious defects, within 3 days after the delivery.

6.3 In the case of the acceptance of services, in particular assembly services and monitoring services, in the case of the commissioning of systems, a formal acceptance must always take place within a reasonable period after completion of the service, unless we expressly agree otherwise, in writing, with the Contractor. Each party may call in an expert for the formal acceptance at their own expense. A written acceptance protocol must be drawn up on the acceptance. If the Contractor fails to attend the joint acceptance date despite being invited in good time, the acceptance shall take effect when we notify the Contractor, in writing, of the result of the successful acceptance. The agreed or required instructions for use, safety declarations and declarations of conformity and the like must be enclosed with the Delivery, otherwise it shall be deemed incomplete.

6.4 The full or partial use of the delivery, in particular of parts of a constructional installation, for the continuation of the work or for the preparation of the commissioning of the entire plant or interim tests will not constitute any acceptance of the Delivery, nor shall any payments which might have been made.

6.5 Even if we agree to pay freight costs, the risk shall not pass to us until we or a person authorised by us, in writing, has accepted the Delivery at the agreed place of fulfilment or after acceptance of the Delivery, whichever occurs later. That will not apply if the transport company is appointed by us or if we carry out the transport ourselves. If Incoterms have been agreed, the resulting regulations on the transfer of risk shall remain in full force and effect.

7. Warranty

7.1 The Contractor warrants that the subject matter of the order is free from defects and that it corresponds to the quality specified in our order letter, without their liability being limited or excluded in terms of reason or amount. In addition, the Contractor shall comply with the latest versions of statutory, regulatory and other applicable regulations, such as accident prevention regulations, DIN standards and the regulations of professional associations, e.g. VDE, VDI.

7.2 The parties agree that defects resulting from deliveries or services provided by the Contractor’s suppliers or subcontractors shall be deemed to be defects in the product delivered by the Contractor.

7.3 In case of defects in the Delivery, we are entitled, at our discretion, to demand that the Contractor rectify the defects free of charge instead of withdrawing from the contract, reducing the purchase price or delivering defect-free replacement goods. Any and all costs incurred in connection with the inspection and rectification of defects, such as dismantling and installation costs, transport and travelling costs, material costs, etc., shall be borne by the Contractor; this shall also apply if it is determined that there was in fact no defect. Our liability for damages in the event of unjustified requests to remedy defects shall remain in full force and effect; however, we shall only be liable in this respect if we recognised or were grossly negligent in not recognising that there was no defect.

7.4 The Contractor will assume the warranty for a period of 36 months, unless the law or the order provide for longer periods or unless expressly agreed otherwise. The warranty period commences upon acceptance of the Delivery, if acceptance is required, and otherwise upon delivery.

7.5 In addition to the statutory and contractual warranty claims, we are entitled to take the necessary measures to remedy defects at the Contractor’s expense and risk if the Contractor fails to fulfil their obligation of subsequent performance within a reasonable period set by us. The same applies in urgent cases, provided that the Contractor has been informed by us of the existence of the defect and if a high level of damage is to be expected in relation to the Contractor’s warranty obligation on account of the urgency.

7.6 The Contractor will remain solely responsible for drawings, plans, calculations etc. used for the order, even if these are authorised by us.

7.7 The Contractor shall be liable for culpably caused damage to materials and objects provided by us, e.g. due to defective processing.

8. Replacement parts

The Contractor undertakes to supply us with operational, functional and installation-compatible replacement parts at short notice for at least 10 years, upon request. If the production of replacement parts is discontinued, we must be informed, in writing, at least 12 months before the production is discontinued.

9. Industrial Property Rights

9.1 To the extent that deliveries and services are protected by patents and copyrights, the Supplier shall grant to AE all of those rights for reproduction, for use, for operation, for release to third parties, for adaptation, for modification or for translation, which are required for the application and use of the deliveries and services in accordance with the purpose of the order that has been placed. This granting of rights shall be considered settled with the remuneration according to item 3.

9.2 AE shall receive unrestricted ownership of the deliveries and services, particularly those involving folders, plans, technical memos, drawings, prototypes, models or tools.

9.3 The Supplier shall be obligated to indemnify AE in regard to any liabilities based on claims that the deliveries or services infringe patents, copyrights, trade secrets or other industrial property rights of third parties, to the extent that the Supplier does not prove that they are not at fault. In such a case, the Supplier shall be obligated to assume all of the costs and payment obligations resulting from a final verdict reached by a court or from a settlement, provided that AE informs the Supplier within ten (10) days of the assertion of a claim, grants the Supplier sole control and decision regarding the legal defence and the conducting of settlement negotiations as well as provides the supplier with any reasonable support upon request. Item 7.1 shall apply accordingly.

10. Withdrawal from the contract; anti-corruption duty; third-party rights, retention of title by third parties; retention and offsetting; duties to notify or authorise for exports

10.1 If the Contractor ceases its payments or if a request is filed to initiate insolvency proceedings over their assets or if out-of-court debt settlement proceedings are initiated or if proceedings similar to insolvency proceedings or debt settlement proceedings are requested or initiated, we will be entitled to withdraw from the contract, either in full or for the part of the Delivery not yet fulfilled at this time, or to demand compensation instead of performance if there are justified reasons for this (such as protection against a particular increase in risk in the event of insolvency in the event of imminent impairment, e.g. of the Contractor’s reliability, further performance, subsequent warranty claims or future additional services such as maintenance, etc.).

10.2 The Contractor warrants that neither they nor any persons attributable to them nor the subcontractors they use have offered, promised or granted advantages to third parties involved in the preparation, conclusion or execution of the order on the Buyer’s side, or to persons related to these persons, or will do so in the future (anti-corruption obligation).

10.3 The Contractor warrants that their Delivery and its use will not infringe any German or foreign patents, industrial property rights or other rights of third parties or violate statutory or official regulations of any kind. They shall indemnify us against all claims in this respect that third parties may make against us; this shall not apply if an infringement is not attributable to the Contractor.

10.4 The Contractor will ensure that third parties do not retain title to the ordered goods.

10.5 The Contractor’s rights of retention and rights of set-off against us are excluded, unless the Contractor derives these rights from recognised or legally established claims.

10.6 If the Contractor knows or must assume from the circumstances that we will take the Delivery abroad or use it there, they must inform us, without the need for a request, before conclusion of the contract whether we must notify an authority of the export or require a licence for the export, in particular in accordance with the German Foreign Trade and Payments Act or the German War Weapons Control Act with the associated implementing provisions.

11. General provisions

11.1 The relationship with the Contractor shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and German private international law.

11.2 The exclusive – also international – place of jurisdiction for all differences of opinion arising from or in connection with the contract or its validity shall be Mannheim, Germany, for business transactions with merchants, legal entities under public law and special funds under public law or contractors who have no general place of jurisdiction in the Federal Republic of Germany. The same shall apply if the Contractor is an entrepreneur (Sec. 14 of the BGB). However, we will also be entitled, at our discretion, to sue the Contractor at any other general or special place of jurisdiction in accordance with the general provisions. Our right to bring an action against the Contractor if claims are brought against us by third parties in Germany or abroad in connection with the Contractor’s products or services will remain in full force and effect. Overriding statutory provisions, in particular regarding exclusive responsibilities, will remain in full force and effect.

Version: 2024