General Terms and Conditions

General Terms and Conditions of Purchase of ALNO Aktiengesellschaft, Pful-lendorf, pino Küchen GmbH Coswig/ Klieken, and Gustav Wellmann GmbH & Co.KG, (as of 2015/07)

1. General – Scope of Applicability
  1. a. Our Terms and Conditions of Purchase apply exclusively. General terms and conditions of the supplier do not apply under any circumstances, even not if we have not objected to the supplier`s reference to the ap-plicability of its terms and conditions, nor if we accept or pay for the goods delivered by the supplier without any reservation.
  2. b. Our Terms and Conditions of Purchase shall only apply to businesses within the meaning of sec. 14 of the German Civil Code.
  3. c.Our Terms and Conditions of Purchase shall also apply to any future transactions with the supplier, including if we did not refer to them in the particular case.

2. Conclusion of the Contract
  1. a. Unless the parties have explicitly agreed otherwise, cost estimates are binding and free of charge.
  2. b. If the supplier does not confirm our purchase order within 5 business days from receipt, we shall not be bound to our purchase order. The ac-ceptance made thereafter shall be deemed a new offer by the supplier; we reserve the right to accept or reject it.
  3. c. Only orders issued in writing are binding on us. Verbal agreements be-come only binding upon our written confirmation.

3. Prices - Terms of Payment
  1. a. Prices shown in the order are binding. Unless otherwise agreed, the price includes “delivery free domicile” including packaging, transport, delivery, and insurance. The return of packaging material shall be subject to a separate agreement.
  2. b. Price increases due to an increase in costs after conclusion of the con-tract are excluded.
  3. c. We can process invoices only which, in accordance with the instructions given on our purchase order, indicate the relevant purchase order num-ber. The supplier shall be liable for any consequences arising from non-compliance with this requirement, unless the supplier can demonstrate that he is not responsible for such noncompliance.
  4. d. The invoice must show the amount of VAT separately.
  5. e. Unless otherwise agreed, we shall pay the purchase price within 45 days from delivery of the goods and receipt of invoice with a 3 % discount or within 60 days without discount.
  6. f. We shall be entitled to set-off and retention without any restrictions ac-cording to statutory law.
  7. g. Payment does not mean that we accept the delivery as in conformity with the contract.

4. Delivery Date
  1. a. Delivery dates and delivery periods are binding. The supplier`s reserva-tion of a timely self-supply shall be excluded.
  2. b. The supplier shall inform us promptly in writing of any events occurring or coming to its attention which could lead to a delay in delivery.
  3. c. In case of delay in delivery, we shall be entitled to the remedies afforded by law without any restriction. The unconditional acceptance of the goods does not mean that we waive our rights.
  4. d. In case of delay in delivery, we shall be entitled to claim a penalty amounting to 1% of the net price of the purchase order for every full week of delay. The penalty shall be limited to 5 % of the net price. The supplier may submit evidence that there has been no or only minor dam-age and that therefore a penalty would be unreasonable. We shall be en-titled to the penalty in addition to the right to demand performance. In case we accept late delivery, we are entitled to the penalty also if we have not reserved this right when accepting the delivery. We will declare the reservation of this right at the latest with final payment. Any further compensation claims beyond the penalty shall remain unaffected. How-ever, the penalty shall be set off against such compensation claims.

5. Transfer of Risk - Documents
  1. a. Unless otherwise agreed in writing, the goods shall be delivered free domicile at the supplier’s risk. The risk will not transfer to us before we received the delivery.
  2. b. Partial delivery shall only be permitted with our prior consent.
  3. c. The supplier shall state the correct purchase order number on all ship-ping papers and delivery notes. Should the supplier omit to do so, delays in processing for which we will not be liable will be unavoidable.

6. Claims for Defects
  1. a. The supplier warrants that all goods delivered are free of defects in quali-ty and title and in particular meet the newest, state-of-the-art standards and comply with the applicable statutory provisions and the rules and regulations issued by the authorities and the trade associations. The supplier may deviate from these regulations only with our prior written consent. This consent shall not affect the supplier’s liability for defects.
  2. b. The supplier shall notify us promptly of any reservation he has concern-ing a design which we requested.
  3. c. We shall promptly notify the supplier in writing of any obvious defects in the goods delivered as soon as they are detected in the normal course of business, however no later than 10 business days following delivery at our site. We shall notify the supplier in writing of hidden defects no later than 10 business days after discovery.
  4. d. In case of defects, we shall be entitled to the statutory claims without any limitation. At our discretion, we may require that the defects be corrected or the goods be replaced. The supplier shall be entitled to refuse the type of subsequent performance chosen by us if it can only be carried out with disproportionate costs. The supplier shall be responsible for all expenses incurred in correcting the defects or replacing the goods. The costs incurred by the supplier during fault testing and subsequent performance (including for installation and removal) shall be borne by the supplier, including if it turns out that the delivery was actually free of defects.
  5. e. We expressly reserve the right to claim damage compensation in accordance with the statutory provisions.
  6. f. After giving notification to this effect to the supplier, we may correct the defects at the supplier’s expense in cases of imminent danger or of par-ticular urgency not permitting to grant to the supplier the possibility to remedy the defect.
  7. g. The term of limitation for claims for defects shall be 5 years, commencing from the date of transfer of risk, unless the mandatory provisions of sec. 478, 479 German Civil Code apply. In case the defect is remedied by new delivery of a good free of defects, the aforementioned limitation period shall start running again with delivery of the defect free good.
  8. h. The limitation period for claims for defects shall in no event end before the limitation period for claims that our customers have against us for goods and services we have received from the supplier for the resale.

7. Liability
  1. a. The supplier`s liability for damage compensation shall be unrestricted.
  2. b. The supplier shall be responsible for faults of his representatives and vi-carious agents to the same extent as for his own faults.

8. Product Liability
  1. a. Should we be hold responsible for product liability, the supplier shall in-demnify and hold us harmless against all claims to the extent that the damage has been caused by a defect of the good delivered by the sup-plier. In case of fault-based liability, the supplier shall only be obliged to this indemnification in case he acted culpably. To the extent the cause for damage is within his sphere of responsibility, the supplier must provide evidence that he did not act culpably.
  2. b. The supplier agrees to maintain a comprehensive product liability insur-ance in the appropriate amount and upon request, submit the insurance police for inspection. This shall be without prejudice to any claims for damages to which we are eventually entitled.
  3. c. In this context, the supplier agrees in addition to compensate for any ex-penses pursuant to sec. 683, 670 and sec. 830, 840, 426 of the German Civil Code, arising from or in connection with any recall action which we may have to perform. To the extent possible and reasonable, we shall notify the supplier of the content and extent of the recall operations per-formed and give the supplier the opportunity to express an opinion in this respect. This shall be without prejudice to any further legal remedies.

9. Intellectual Property Rights
  1. a. We shall retain all proprietary rights and copyrights in the diagrams, drawings, calculations and other documents. The provisions contained in Clause 11. a. shall apply complementarily.
  2. b. The supplier warrants that the products delivered do not infringe any third-party rights, in particular intellectual and industrial property rights in Europe.
  3. c. If a claim is made by a third party because of an (alleged) infringement, the supplier agrees, upon first written demand, to indemnify and hold us harmless from such claims.
  4. d. The supplier’s obligation of indemnification shall cover all necessary ex-penses arising out of or in connection with such a claim of infringement by a third party.
10. Reservation of Title – Provision of Parts
  1. a. The supplier shall not be entitled to an extended or expended reservation of title, or current account reservation. There are no third party rights in the delivery item.
  2. b. If agreed between the parties, the supplier shall be entitled to a simple reservation of title, and title shall pass to us upon payment of the pur-chase price. The supplier shall only be entitled to demand return of the delivered good after he has withdrawn from the contract.
  3. c. We shall retain title in any parts eventually made available to the supplier. Processing or modification of these parts by the supplier shall be carried out on our behalf. In case of processing or inseparable mixing of these parts with other goods, we shall acquire joint title to the new objects in proportion to the value of our parts (purchase price plus VAT) to the value of the other goods. If the new objects are regarded as the main thing, the parties agree that the supplier shall assign joint ownership in this thing proportionally to us. The supplier shall keep ownership on our behalf.
  4. d. If the amount of the security interests to which we are entitled pursuant to clause 10. c. exceeds the purchase price of all our unpaid goods under retention of title by more than 10 %, we shall be obligated upon the sup-plier`s request to surrender the security interests at our option.
11. Confidentiality
  1. a. The supplier agrees to keep in strict secrecy all diagrams, drawings, cal-culations and other documents and information provided and to use them exclusively to perform our purchase orders. They may not be disclosed to any third party without our written consent. Upon completion of the purchase order, the supplier must, of its own accord, return promptly these confidential documents.
  2. b. The obligation of confidentiality shall survive the completion of the pur-chase order and shall expire when and to the extent that the manufactur-ing know-how contained in the diagrams, drawings, calculations and oth-er documents provided has become part of the public domain.

12. Data Protection

  1. The parties will observe the statutory provisions for the protection of per-sonal data at all times.
13. Governing law – Place of Jurisdiction
  1. a. The law of the Federal Republic of Germany shall exclusively govern all legal aspects of the relationship between us and the supplier. The appli-cation of the UN Sales Convention of April 11, 1980 is excluded.
  2. b. Exclusive place of jurisdiction is our place of business. We reserve the right to sue the supplier at any competent court.
14. Final Provisions
  1. a. Unless otherwise stated on our purchase order, the place of performance shall be our principal place of business.
  2. b. The invalidity of any provision of these General Terms and Conditions of Purchase shall not affect the validity of the other provisions. The invalid provision shall be replaced with a valid provision corresponding with the invalid provision and the parties` economic objectives to the largest extent possible. The aforementioned provision applies mutatis mutandis in case of a gap.
  3. c. Agreements and its modifications and supplements require the written form to be valid. The written form requirement also applies to a waiver of the written form requirement itself. Verbal arrangements require written confirmation to be valid.
  4. d. Should the supplier discontinue its payments, or should bankruptcy pro-ceedings be initiated over its assets, we may withdraw from the Agree-ment.
  5. e. The language of the contract is German. In case the parties use an addi-tional language, the German language will always prevail.