0. Preliminary Remarks / Subject Matter of Contract

FEAG GmbH, Berlin and its affiliated companies FEAG Holding GmbH, FEAG Bremen GmbH, FEAG St. Ingbert GmbH and FEAG SLK Elektro s.r.o. purchase goods and services as Ordering Party from Contractors exclusively on the basis of the following Terms and Conditions of Ordering and subordinate to the other provisions included. Deviating terms of delivery of the Contractor are hereby rejected. Agreements, in particular as far as they amend these terms and conditions, shall only become binding upon written confirmation by the Ordering Party.

I. Order and order confirmation

1. The Ordering Party may revoke the order if the Contractor has not accepted it in writing within two weeks of receipt (order confirmation).
2. If the order confirmation differs from the order, the Ordering Party shall only be bound if he has agreed to the deviation in writing. In particular, the Ordering Party shall only be bound by the Contractor’s General Terms and Conditions to the extent that they are in accordance with the Ordering Party’s terms and conditions or if the Ordering Party has agreed to them in writing. The acceptance of deliveries or services as well as payments shall not constitute consent.
3. Amendments or additions to the order shall only be effective if they have been confirmed in writing by the Ordering Party.

II. Rights of use

1. The Contractor grants the Ordering Party the non-exclusive, transferable, worldwide and perpetual right a) to use or to have the software and the associated documentation used (hereinafter collectively referred to as “Software”); b) to sublicense the right of use pursuant to sect. II 1. a) to affiliated companies as defined by § 15 German Stock Corporation Act (AktG), other distributors and to end customers as far as individual software is concerned; c) to license affiliated companies as defined by § 15 German Stock Corporation Act (AktG) and other distributors the right to grant end customers the right of use pursuant to No. II 1.a); d) to copy the software for installation in hardware or to have it copied by affiliated companies as defined by § 15 German Stock Corporation Act (AktG) or other distributors.
2. In addition to the right granted in paragraph 1, the Ordering Party, affiliated companies as defined by § 15 of the German Stock Corporation Act (AktG) and other distributors are authorised to allow end customers to transfer the software licences. 3. Any sub-licences granted by the Ordering Party must provide adequate protection for the Contractor’s intellectual property in the Software by using the same contractual provisions that the Ordering Party use to protect their own intellectual property.

III. Performance period, contractual penalty in the event of default

1. The timeliness of deliveries or subsequent performance shall be determined by receipt at the place of receipt specified by the Ordering Party; the timeliness of deliveries with installation or assembly and of services shall be determined by their acceptance.
2. In the event of a recognizable delay in a delivery or service, the Ordering Party must be notified immediately and his decision obtained.
3. If the agreed deadline is exceeded for reasons for which the Contractor is responsible, the Ordering Party shall be entitled to charge a contractual penalty of 0.3% for each commenced working day of delay, up to a maximum of 10% of the total amount.
4. If the corresponding reservation is not made when accepting the deliveries, services or subsequent performance, the contractual penalty can nevertheless be asserted up to the final payment.

IV. Transfer of risk, dispatch, place of fulfilment

1. In the case of deliveries with installation or assembly and in the case of services, the risk shall pass upon acceptance; in the case of deliveries without installation or assembly, the risk shall pass upon receipt at the place of receipt specified by the Ordering Party.
2. Unless otherwise agreed, the Contractor shall bear the shipping and packaging costs. In the case of pricing ex-works or ex sales warehouse of the Contractor, the goods shall be shipped at the lowest cost in each case, unless the Ordering Party has specified a particular mode of transportation. Additional costs due to non-compliance with the shipping instructions shall be borne by the Contractor. In the case of free recipient pricing, the Ordering Party may also determine the mode of transportation. Additional costs for any expedited transportation required to meet a delivery date shall be borne by the Contractor.
3. Each delivery must be accompanied by packing slips or delivery bills stating the contents and the complete order number. The dispatch must be notified immediately with the same information.

V. Invoices

Invoices must state the order codes and the reference numbers of each individual item. Invoices are not payable if this information is missing. Duplicate invoices must be marked as duplicates.

VI. Payments

1. Unless otherwise agreed, payments shall be made within 14 days with a 3% discount or within 30 days with a 2% discount or within 90 days net.
2. The payment term shall commence as soon as the delivery or service has been provided in full and the properly issued invoice has been received. As far as the Contractor has to provide material tests, test reports, quality documents or other documents, the completeness of the delivery and service also presupposes the receipt of these documents. Discounts may also be deducted if the Ordering Party offsets or withholds payments in an appropriate amount due to defects; the payment period shall commence after the defects have been fully remedied.
3. If the Contractor is an entrepreneur, the Ordering Party shall only be in default if he fails to pay in response to a reminder issued by the Contractor after the purchase price has become due.
4. Payments do not imply recognition of the deliveries or services as being in accordance with the contract.

VII. Entry checks

1. The Ordering Party may give notice of obvious defects within one month of receipt of the deliveries.
2. In the case of packaged goods, the obligation to inspect is limited to recognizable transport damage to the packaging; otherwise to random samples.
3. Concealed defects and quantity deviations in packaged goods must be reported within the warranty period within one month of discovery.

VIII. Liability for defects

1. The Contractor shall provide a warranty for its deliveries and services for three years unless the law provides for longer periods. The period begins with the transfer of risk (Sect. IV.). In the case of deliveries to places where the Orderer carries out orders outside its plants or workshops, it shall commence upon acceptance by the client of the ordering party, at the latest one year after the transfer of risk.
2. If defects are discovered before or at the time of transfer of risk or occur during the period specified in sect. 1, the Contractor shall, at its own expense and at the Purchaser’s discretion, either remedy the defects or deliver or perform again free of defects. This obligation applies not only at the place of performance, but also worldwide at the final destination of the delivery and service in the downstream supply chain. The Contractor shall bear the costs and risk of returning defective delivery items.
3. In the case of serial defects – several similar defects also from random samples – the Ordering Party may also demand rectification or replacement of deliveries and services that are not yet defective at his reasonable discretion.
4. If the Contractor does not carry out the supplementary performance within a reasonable period to be set by the Ordering Party, the Ordering Party shall be entitled to withdraw from the contract in whole or in part without compensation or to demand a reduction in the price or to carry out rectification or redelivery itself or have it carried out at the Contractor’s expense and to demand compensation instead of performance. § 281 (2) and § 323 (2) German Civil Code (BGB) remain unaffected.
5. Rectification of defects can be carried out at the Contractor’s expense without setting a deadline if delivery is made after the delay has occurred. The same applies if the Ordering Party has a special interest in immediate subsequent fulfilment due to the avoidance of his own delay or other reasons of urgency.
6. Claims for defects shall expire at the earliest one year after assertion, but not before expiry of the original warranty period. The warranty period for deliveries and services provided as part of the rectification of defects is 2 years, but at least until the expiry of the original warranty period.
7. Further legal claims remain hereby unaffected.

IX. Liability for the infringement of property rights

The Contractor guarantees that no industrial property rights, including copyrights, conflict with the contractually agreed use.

X. Passing on orders to third parties

The passing of orders to third parties without the written consent of the Ordering Party is not permitted and entitles the Ordering Party to withdraw from the contract as a whole or in part and to request compensation.

XI. Provision of materials

1. Materials provided by the Ordering Party shall remain the property of the Ordering Party and shall be stored, labelled, and managed separately free of charge. They may only be used for orders placed by the Ordering Party. In the event of depreciation in value or loss, the Contractor shall provide replacement. This also applies to the invoiced provision of order-related material.
2. Processing or remodelling of the material is carried out for the Ordering Party. The latter shall become the direct owner of the new or transformed item. If this is not possible for legal reasons, the Ordering Party and the Contractor agree that the Ordering Party shall become the owner of the new item at all times during processing or transformation. The Contractor shall store the new item free of charge for the Ordering Party with the due care of a prudent businessperson.

XII. Tools, moulds, patterns, confidentiality, etc.

1. Tools, moulds, samples, models, profiles, drawings, standard sheets, print templates and gauges provided by the Ordering Party, as well as items manufactured on the basis thereof, may not be passed on to third parties or used for purposes other than the contractual purposes without the written consent of the Ordering Party. They must be secured against unauthorized inspection or use. Subject to further rights, the Ordering Party may demand their return if the Contractor breaches these obligations.
2. The Contractor shall not make information obtained from the Ordering Party accessible to third parties unless it is generally or otherwise known to the Contractor by law. Insofar as the Ordering Party has agreed to the passing on of orders to third parties, these third parties must be bound accordingly in writing.

XIII. Insurances

All deliveries and services shall be insured for transportation by the Ordering Party. In the event that the transport is to be organized by the Contractor, the following must be included in the transport orders: “Our client declares that he waives the conclusion of damage insurance in accordance with the new version of the ADSp (German Freight Forwarders’ Standard Terms and Conditions ) of 1998.”.

XIV. Assignment of claims

Assignment of claims is only permitted with the prior written consent of the Ordering Party.

XV. Special right of termination

If the Contractor stops making payments, a provisional insolvency administrator is appointed or insolvency proceedings are opened against the Contractor’s assets, the Ordering Party shall be entitled to withdraw from the contract in whole or in part. In the event of withdrawal, the Ordering Party may make use of existing equipment or deliveries and services previously provided by the Contractor for the continuation of the work in return for appropriate remuneration.

XVI. Supplementary provisions

As far as the order conditions do not contain any provisions, the statutory provisions shall apply.

XVII. Compliance Requirements

The Contractor undertakes to comply with German, European and all other statutory provisions relevant to the supply relationship. In particular, he undertakes not to tolerate any form of corruption or bribery or to engage in any form of corruption or bribery, regardless of the business partner. Similarly, forced labour, child labour and discrimination are excluded throughout the supply chain. In the event of non-compliance with the prohibition of bribery, granting of advantages or acceptance of advantages, the Contractor shall assume full liability for damages and, in addition, a lump-sum contractual penalty amounting to 300% of the relevant payments made.

XVIII. Place of jurisdiction, applicable law

1. The place of jurisdiction for all legal disputes is Cologne. In addition, the Ordering Party shall also be entitled to sue the Contractor at the respective courts of its general place of jurisdiction.
2. German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

© FEAG 1. Januar 2024 (TP)