General terms and conditions of purchase of the company Fibrothelium GmbH

§ 1 Scope, form

(1) The present general terms and conditions of purchase (GTCP) shall apply to all business relations with our business partners and suppliers (‘seller’). The GTCP shall only apply if the seller is an entrepreneur (§ 14 German Civil Code – BGB), a legal entity under public law or a special fund under public law.
(2) The GTCP shall apply in particular to contracts for the sale and/or delivery of products (‘goods’), irrespective of whether the seller manufactures the goods itself or purchases them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the version of the GTCP valid at the time of the buyer’s order or, in any case, the last version communicated to the buyer in text form, shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
(3) These GTCP shall apply exclusively. Any deviating, conflicting or supplementary terms and conditions of the seller shall become part of the contract only if and to the extent that we have expressly agreed to their application in writing.
This requirement of consent shall apply in all cases, for example even if we are aware of the seller’s general terms and conditions of business without reservation.
(4) Individual agreements made with the seller in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTCP. For the content of such agreements, subjected to proof to the contrary, a written contract or our written confirmation shall be authoritative.
(5) Legally relevant declarations and notifications of the seller with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in the case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(6) References to the applicability of statutory provisions shall only have a clarifying significance. Even without such clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded.

§ 2 Conclusion of contract

(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The customer shall notify us of any obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.
(2) The seller shall confirm our order in writing within a period of 5 days or to execute it without reservation, in particular by dispatching the goods. A delayed acceptance shall be deemed a new offer and requires acceptance by us.

§ 3 Delivery time and delay in delivery

(1) The delivery time stated by us in the order is binding. If the delivery time is not comprised in the order and has not been agreed otherwise, it shall be two weeks from the conclusion of the contract. The seller shall be obliged to notify us in writing immediately if the agreed delivery times – for whatever reasons – probably cannot be met.
(2) If the seller fails to perform within the agreed delivery time or is in default, our rights – in particular to rescission and compensation – shall be determined in accordance with the statutory provisions. The provisions in § 3 remain unaffected.
(3) If the seller is in default, we may – in addition to any further statutory claims – demand lump-sum compensation for our damage caused by delay in the amount of 1 % of the net price per completed calendar week, but in total not more than 5 % of the net price of the delayed goods. We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage at all or only a considerably lower damage has been incurred.

§ 4 Performance, delivery, transfer of risk, default of acceptance

(1) Without our prior written consent, the seller shall not be entitled to have the service by third parties (e.g. subcontractors). The seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).
(2) Delivery shall be made ‘free domicile’ within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed upon, the delivery shall be made to our registered office in Aachen. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver).
(3) The delivery shall be accompanied by a delivery bill stating the date (issue and dispatch), contents of the delivery (article number and quantity) as well as our order ID (date and number). If the delivery bill is missing or incomplete, we shall not be liable for any resulting delays in processing and payment. A corresponding dispatch bill with the same content must be sent to us separately from the delivery bill.
(4) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer upon handover at the place of performance. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis. The handover or acceptance shall be deemed to be the same if we are in default of acceptance.
(5) The statutory provisions shall apply to the occurrence of our default in acceptance. The seller must, however, expressly offer us its performance even if an action or cooperation on our part (e.g. provision of material) has been agreed upon. If we are in default of acceptance, the seller shall be entitled to claim compensation for its additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to a non-representable item to be manufactured by the seller (individual production), the seller shall only be entitled to further rights if we have undertaken to cooperate and if we are responsible for the failure to cooperate.

§ 5 Prices and terms of payment

(1) The price stated in the order shall be binding. All prices shall be understood to include statutory value added tax, if this is not shown separately.
(2) Unless otherwise agreed in the individual case, the price shall include all services of the seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
(3) Unless otherwise agreed in individual cases, the agreed price shall be payable within 30 calendar days from complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the seller shall grant us a 3 % discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made if our transfer order is received by our bank before the payment deadline; we are not responsible for delays caused by banks involved in the payment process.
(4) We do not owe any interest on arrears. The statutory provisions shall apply to default in payment.
(5) We shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent provided by law. In particular, we shall be entitled to withhold payments due as long as we are still entitled to claims against the seller arising from incomplete or defective performance.
(6) The seller shall only have a right of set-off or a right of retention on the basis of undisputed counterclaims.

§ 6 Secrecy and retention of title

(1) We retain title to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents and we reserve the right of ownership and copyright. Such documents are to be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall expire only if and insofar as the knowledge contained in the documents provided has become generally known.
(2) The above provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products), as well as for tools, templates, samples and other items which we provide to the seller for production. Such items shall – as long as they are not processed – be stored separately at the expense of the seller and insured to a reasonable extent against destruction and loss.
(3) Any processing, mixing or combining (further processing) of provided items by the seller shall be carried out on our behalf. The same shall apply in the event of further processing of the delivered goods by us, so that we are deemed to be the manufacturer and acquire ownership at the latest upon further processing in accordance with the statutory provisions.
The same shall apply in the event of further processing of the goods supplied by us, so that we shall be deemed to be the manufacturer and acquire ownership of the product at the latest with the further processing in accordance with the statutory provisions.
(4) The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. However, if we accept in an individual case an offer of the seller for the transfer of ownership, the seller’s reservation of ownership shall expire at the latest upon payment of the purchase price for the delivered goods.
We shall remain authorized to resell the goods in the ordinary course of business, even before payment of the purchase price, with advance assignment of the claim arising therefrom. (Alternatively, the simple retention of title extends to the resale). Excluded are all other forms of retention of title, in particular the extended retention of title and the reservation of title extended to further processing.

§ 7 Defective delivery

(1) For our rights in case of material defects and defects of title of the goods (including incorrect and improper assembly, defective assembly instructions or operating instructions) and in the event of other breaches of duty by the seller, the statutory provisions shall apply, unless otherwise stipulated below.
(2) In accordance with the statutory provisions, the seller shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us.
In any case, those product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or have been included in the contract in the same way as these GTCP shall be deemed to be an agreement on the quality. It states whether the product description originates from us, from the seller or from the manufacturer.
(3) Notwithstanding Section 442 (1) sentence 2 of the German Civil Code (BGB), we shall be entitled without limitation if the defect remained unknown to us at the time of conclusion of the contract as a result of gross negligence.
(4) The statutory provisions shall apply to the commercial duty to inspect and to give notice of defects. (§§ 377, 381 HGB) shall apply with the following provision: our obligation to examine shall be limited to defects which become apparent during our incoming goods inspection by means of external examination including documents (e.g. transport damage, wrong and short delivery) or which become apparent during our quality control by sampling. Insofar as acceptance has been agreed, there shall be no obligation to inspect. In all other respects it depends on the extent to which an inspection 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 shall remain unaffected. Notwithstanding our duty to examine, our notice of defect shall be deemed to have been made without undue delay and in due time if it is made within 10 working days from discovery or, in the case of obvious defects, from delivery.
(5) Subsequent performance shall also include the removal of the defective goods and their re-installation if the goods have been installed in another object or attached to another object in accordance with their nature. Our statutory claim for reimbursement of corresponding expenses shall remain unaffected. The expenses necessary for the purpose of inspection and supplementary performance shall be borne by the seller even if it turns out that no defect actually existed. Our liability for damages in the event of unjustified request for rectification of defects shall remain unaffected; however, we shall only be liable in this respect, if we recognized or were grossly negligent in not recognizing that there was no defect.
(6) Without prejudice to our statutory rights and the provisions in § 5, the following shall apply: If the seller fails to meet his obligation to remedy the defect – at our option by remedying the defect (rectification) or by delivery of a defect-free item (replacement delivery) – within a reasonable period of time set by us, we shall be entitled to remedy the defect ourselves and to demand reimbursement from the seller of the expenses required for this purpose or an appropriate advance payment. If the subsequent performance by the seller failed or is unreasonable for us (e.g. due to particular urgency, endangerment of the operational safety or the threat of disproportionate damage), no deadline needs be set. In the case of such circumstances we shall inform the seller without undue delay, if possible in advance.
(7) Otherwise, in the event of a material defect or defect of title, we shall be entitled in accordance with the statutory provisions to reduce the purchase price or to withdraw from the contract. In addition we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.

§ 8 Supplier recourse

(1) Our legally determined recourse claims within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 BGB) shall accrue to us in addition to the claims for defects without restriction. In particular, we shall be entitled to choose exactly the type of supplementary performance (repair or replacement) which we owe our customer in the individual case. Our statutory right to choose (§ 439 para. 1 BGB) shall not be limited hereby.
(2) Before we can assert a claim for defect asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2) and (3) BGB), we shall inform the seller and request a written statement, briefly explaining the facts. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, then the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the seller shall have the burden of proof to the contrary.
(3) Our claims from supplier recourse shall also apply if the defective goods have been further processed by us or another contractor, e.g. by incorporation into another product.

§ 9 Producer’s liability

(1) If the seller is responsible for damage to a product, he shall indemnify us against claims of third parties to the extent that the cause lies within his sphere of control and organization and he himself is liable in the external relationship.
(2) Within the scope of his obligation to indemnify, the seller shall bear expenses pursuant to §§ 683, 670 of the German Civil Code (BGB), which arise from or in connection with claims of third parties including recall actions carried out by us. About the content and scope of recall measures, we shall inform the seller – to the extent possible – and give him the opportunity to comment. Further legal claims shall remain unaffected.
(3) The seller has taken out a product liability insurance with a lump sum of at least EUR 5 million per personal injury/property damage.

§ 10 Statute of limitations

(1) The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.
(2) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims for defects shall be 3 years from the passing of risk. Insofar as acceptance has been agreed, the period of limitation shall commence with the acceptance. The 3-year limitation period shall also apply mutatis mutandis to claims arising from defects in title, whereby the statutory limitation period for third parties (§ 438 para. 1 no. 1 BGB) remains unaffected; claims arising from defects of title shall in no case become statute-barred as long as the third party has the right – in particular in the absence of a statute of limitations – can still assert the right against us.
(3) The limitation periods of the law on sales, including the above extension, shall apply – to the statutory scope – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period shall apply (§§ 195, 199 BGB), unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.

§ 11 Data protection

(1) Data collected and processed in connection with the conclusion and performance of the contract and processed in connection with the conclusion and execution of the contract shall be used exclusively for the content of the contract, the implementation or execution of the contractual relationship in accordance with Article 6 Paragraph 1 b DSGVO (Data Protection Regulation). The data collected in this way will not be forwarded to third parties. In order to enable payments, the necessary data will be passed on to the credit institution commissioned with the payment and/or the service provider who is to process the payment. The use of personal data is only used to the extent necessary or if we are required to do so by law or by court order.
(2) After the purpose for which the data was collected has been achieved, the seller’s personal data shall be stored until such time as this is no longer required by regulations, in particular in tax law.
(3) The seller shall have a claim against us for information as to whether we store and process personal store and process personal data from him. If applicable, the seller shall have a right to information regarding the personal data, and the seller shall also have a right to receive from us the information referred to in Article 15 of the GDPR.
(4) Insofar as data are recorded incorrectly and incompletely, the seller has, in case of inaccuracy, a right to rectification and, in the case of incompleteness, the seller may demand that the data should be completed in accordance with Article 16 of the GDPR.
(5) The seller may request the deletion of the personal data. We shall comply with this request without undue delay if one of the following circumstances is given:
– the personal data are no longer necessary because the purpose for which they were collected or processed has been achieved,
– the seller revokes his or her consent and another basis for the collection and processing of the personal data is not given,
– the seller’s data have been collected and processed in a manner that is not lawful.
The seller shall not be entitled to the deletion of the personal data to the extent that we need them to enforce our contractual claims.
(6) The seller shall have the right to restrict the processing of the personal data if one of the following circumstances is given:
– the accuracy of the collected data is disputed by the seller,
– the processing of the personal data is in breach of the law and the seller requests the restriction of the use of the data instead of its complete deletion, or
– we no longer require the data, but the seller still needs them to enforce its legal positions
– the seller has objected to the collection and processing of the data and it is not yet clear whether the objection was justified or not.
(7) The seller shall have the right to have the personal data concerning him, which have been provided by him in a format that he can understand, and the seller shall have the right to send this data to another data controller without resistance by us. This only applies if the processing is based on the seller’s consent or on the basis of a contract and the processing of the data is carried out by us as part of an automated procedure.
(8) Insofar as the processing of personal data is based on a consent of the seller, the seller shall have the right to revoke the consent at any time.
(9) In the event of a breach of the provisions of the DSGVO, the seller shall have the right to contact (General Data Protection Regulation) directly the supervisory authority for data protection. The exercise of the aforementioned rights under the DSGVO is not associated with costs.

§ 12 Choice of law and place of jurisdiction

(1) These GTCP and the contractual relationship between us and the seller shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(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 shall be our registered office in Aachen. The same shall apply if the seller is an entrepreneur within the meaning of § 14 BGB. However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCP or a prior individual agreement or at the general place of jurisdiction of the seller. Overriding statutory provisions, in particular those relating to exclusive jurisdiction, shall remain unaffected.

Version date: 15.09.2021