AGB & AEG

I. General scope

1. Our inquiries, orders, order confirmations and acceptance of deliveries and services are made exclusively on the basis of the following “General Purchasing Conditions”. Insofar as the following conditions do not contain any deviating regulations, the general terms and conditions of Frerk Aggregatebau GmbH apply in addition. We do not recognize the contractor's terms and conditions that conflict with or deviate from our terms and conditions, unless we have expressly agreed to their validity in writing. Our general terms and conditions apply even if we unconditionally accept the supplier's delivery in the knowledge of the contractor's terms and conditions that conflict with or deviate from our general terms and conditions.
2. All agreements must be made in writing. Fax or email is sufficient.
3. Our general terms and conditions apply to legal entities under public law, a special fund under public law or companies which, when concluding the contract, act in the exercise of their commercial or independent activity.

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II. Offer documents, conclusion of contract and content of the contract

1. These purchasing conditions apply regardless of the legal nature of the contract concluded with the contractor, i.e. both to sales, work, work supply and service contracts as well as to all other contractual relationships on the basis of which we obtain deliveries and services from the contractor or make use of services from the contractor of any kind.
2. Our orders are only binding if they are made in writing and in accordance with these general purchasing conditions.
   The drawings, samples and specifications submitted for the order are the subject of the order.
3. The contractor must confirm in writing the acceptance of an order placed by us immediately, at the latest within 3 working days (Monday to Saturday) from the date of the order letter, by means of a signed copy of the order or with this content. After this period, our order is no longer effective, or we are entitled to cancel our order free of charge.
4. Our purchasing conditions also apply to all future transactions with the contractor.
5. The separate quality assurance agreement (QSV) and the respective delivery and packaging instructions from Frerk are part of our order.

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III. Prices, terms of payment and invoicing

1. The agreed prices are net fixed prices. They include all expenses in connection with the deliveries and services to be provided by the contractor. Statutory sales tax is not included in the prices.
2. After the delivery or service has been provided in accordance with the contract and receipt of the proper invoice, we pay within 14 days with a 3% discount of the gross invoice amount or net within 45 days.
3. In addition to our order and order number, all invoices must bear the date of the order and must be sent to us in duplicate. Invoices that do not take this into account will be returned without losing our rights under the agreed payment terms.
4. Invoices must not be included with the shipment. Until a proper invoice is received, late payment by our company is excluded. Further legal (in particular tax) obligations of the contractor with regard to the preparation of invoices remain unaffected.
5. We are fully entitled to offsetting and retention rights in accordance with statutory provisions.
   Assignments of the contractor's claim against us to third parties are excluded.

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IV. Delivery, place of delivery, customs, delivery delay and inspection obligation

1. The delivery dates and deadlines specified in the order are binding. They expire from the date of the order or receipt of the order by Frerk.
2. Deliveries are made by CIP (Freight and Insurance Paid) in accordance with Incoterms in their current version to the delivery address specified by us, unless otherwise specified, including packaging and preservation.
3. For deliveries and services that are made from an EU country outside Germany, the contractor's EU sales tax identification number must be provided.
4. Imported goods must be delivered subject to customs. The contractor is obliged to provide required declarations and information under Regulation (EC) No 1207/2001 at his expense, to allow inspections by the customs authority and to provide necessary official confirmations.
5. The contractor is obliged to inform us in detail and in writing of any approval requirements for (re) exports in accordance with German, European and US export and customs regulations as well as export and customs regulations of the country of origin of the goods and services.
6. For shipments of any kind, shipping notifications with our order, order and article number must be sent to us in good time. Our shipping instructions and the general regulations of the transport industry must be observed. The contractor is liable for all damage we incur as a result of failure to comply.
7. We shall dry pack the goods free of charge in a form suitable for proper transport, unless otherwise expressly agreed upon conclusion of the contract. After notification, the contractor is obliged to take back the packaging at our request and at his expense.
8. If the contractor recognizes that an agreed interim or final date cannot be met for any reason, the contractor will immediately notify us in writing, giving the exact reasons and expected duration of the delay. The contractor bears the resulting follow-up costs.
   Subsequent changes or additions to the order do not change the agreed delivery date, unless this is expressly agreed in writing.
9. For each week that the delivery/service deadline is exceeded, a contractual penalty of 0.5%, but not more than 5% of the delivery/service value (net) is due. A reservation of the contractual penalty upon acceptance of the delivery or service is not necessary; rather, it is sufficient if the contractual penalty is reserved when the contract is settled. The assertion of a performance claim and further legal rights, in particular withdrawal and compensation, remains unaffected.
10. Early deliveries and partial deliveries within 5 working days are only permitted with our express written consent. If delivery is earlier than agreed, we reserve the right to return the goods at the contractor's expense. If there is no return in the event of early delivery, the goods will be stored with us until the delivery date at your expense and risk.
11. Nor does the contractor deliver or deliver within a grace period set by us (Section 634 BGB Paragraph 1 S.1), we are entitled, even without threat of acceptance, to withdraw from the contract or to claim compensation for non-performance (Sections 463, 480 Paragraph 2 BGB; 635 BGB).
    We are entitled to rescind the contract even if the contractor is not responsible for the delay. The additional costs we incur as a result of the delay, in particular as a result of any other necessary coverage, shall be borne by the contractor.
12. In addition to the right to use the software included in the product package, including its documentation, to the extent permitted by law (Section 69 a ff Copyright Act), we have the right to use it with the agreed features and to the extent necessary for the use of the product in accordance with the contract. We may also make a backup copy without an express agreement.

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V. Acceptance and transfer of risk

1. Irrespective of the agreed pricing, the risk is transferred to us upon delivery without installation or assembly upon receipt at the delivery address specified by us and in the case of delivery with installation or assembly upon successful completion of our acceptance.
   Start-up or use does not replace our declaration of acceptance.
2. Ownership of the delivered goods passes to us after payment. Any extended or extended retention of title is excluded.

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VI. Material, legal defects and warranty

1. We are not obliged to check the goods after they have been received. We make every effort to check the goods for freedom from defects, in particular for accuracy, completeness and suitability in the form of random samples, to the extent and as soon as this is feasible in the ordinary course of business. Section 377 HGB is excluded insofar as this is permitted. A complaint within 45 days of discovery of a defect or other complaint is timely. The contractor waives the objection of late notification of defects.
2. Irrespective of this, we are entitled to demand that the contractor rectify the defect or deliver a replacement at our discretion. In this case, the contractor must bear the expenses necessary for the purpose of remedying the defect or delivering a replacement. We reserve the right to compensation.
3. Contrary to Section 442 (1) sentence 2 BGB, we are fully entitled to claims for defects even if the defect remained unknown to us upon conclusion of the contract as a result of gross negligence.
4. The warranty period is 36 months from transfer of risk, unless the minimum warranty period required by law is longer or the item has been used for a building in accordance with its usual use and has caused its defectiveness.
5. In the event of legal defects, the contractor releases us from any existing third-party claims.
   There is a limitation period of 10 years with regard to legal deficiencies.
6. The contractor guarantees that all deliveries are free from third-party property rights and in particular that the delivery and use of the delivery items does not infringe patents, licenses or other proprietary rights of third parties within Germany. If the contractor is aware that its products are also sold by Frerk in certain countries, the above also applies to these countries.
7. If we incur transport, travel, labor, material costs or costs for an incoming inspection that exceeds the usual scope as a result of the defective delivery of the object of the contract, the contractor must bear these costs.

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VII. Product liability and indemnification

1. If we are claimed due to violation of official safety regulations or due to domestic or foreign product liability regulations or laws due to a defectiveness of the product that is attributable to the contractor's goods, we are entitled to demand compensation from the contractor for this damage, insofar as it is caused by the products delivered by him. This damage also includes the costs of a necessary recall. If a fault occurs in a part delivered by the contractor, it is assumed that the fault occurred exclusively within the contractor's area of responsibility.
2. The contractor undertakes to maintain product liability insurance with a coverage of at least 5,000,000.00 euros per personal injury/property damage — lump sum —; if we are entitled to further compensation or indemnification claims, these remain unaffected.

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VIII. Retention of title and provision of material

1. We reserve the right of ownership of the material provided by us. The material may only be used for its intended purpose. Processing or alterations by the contractor are carried out by us. If our reserved goods are processed or mixed with other objects that do not belong to us, we acquire joint ownership of a new item in proportion to the value of our item (purchase price plus sales tax) to the other processed objects at the time of processing.
2. If the material provided by us is inseparably mixed with other objects not belonging to us, we acquire joint ownership of the item in proportion to the value of the reserved item (purchase price plus sales tax) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the contractor's item is to be regarded as the main thing, it is agreed that the contractor transfers joint ownership to us on a pro rata basis. The contractor stores sole ownership or joint ownership for us.

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IX. Force majeure, copyrights, industrial property rights

1. Unforeseeable, unavoidable and/or exceptional events for which we are not responsible and have a significant impact on our business or even lead to the discontinuation of operations release us from the obligation to accept.
2. We are entitled to withdraw from the contract if such an event described in Section 1 lasts longer than three months, unless it is the case of a custom-made product for us. In the event of withdrawal, the contractor cannot derive any claims for compensation from this.
3. If we do not make use of our right of withdrawal, we are released from the obligation to perform in accordance with the contract while the obstacles mentioned in sentence 1 exist.
4. Drawings, samples, process flows, etc., which have been added to our orders, remain our property. The contractor expressly undertakes not to use the above documents, either directly or indirectly, for deliveries to third parties. They must be returned in usable condition at the latest with the last delivery or service from the respective order.
   These documents may only be used by the contractor and made available or disclosed to third parties only insofar as this is absolutely necessary to complete our order and we have agreed to this procedure in writing beforehand.
5. All commercial and technical details of our business relationship that are not obvious must be kept confidential and not passed on to third parties.
6. The contractor is liable for the use or resale of the ordered goods or services without infringement of third-party industrial property rights (patents, utility models, trademarks, licensing rights, etc.).
   He releases us from all claims in the event of infringement of third-party property rights. In the event of infringement of third-party industrial property rights, we are also entitled to withdraw from the contract and claim compensation under legal conditions.
7. In the event of a lawsuit due to an infringement of property rights, the contractor must provide security in full of the proven, impending damage. He also bears all judicial and extrajudicial costs and expenses arising in connection with a lawsuit for infringement of intellectual property rights.
8. The above clauses 6. and 7. do not apply if the contractor can prove that he is not responsible for the infringement of property rights.
9. We are entitled to all property rights arising from an invention created in connection with the contractual performance and/or know-how acquired in connection with this.
10. We have sole ownership and copyright to drawings, models, tools, devices or software developed as part of the execution of the order, which serve as tools for carrying out the order. We are entitled to make these available to third parties or to exploit them ourselves. If the subject matter of the contract consists in the delivery of a planning or other predominant development service (e.g. design or development work), we are not limited to the contractually agreed use of the service.

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X. Safety, documentation, environmental protection

1. The supplier's deliveries and services must comply with current legal regulations and guidelines, in particular the safety and environmental protection regulations, including the Ordinance on Dangerous Substances, the ElektroG and the safety recommendations of the responsible German expert bodies or trade associations, e.g. VDE, VDI, DIN.
   The relevant certificates, test certificates and supporting documents must be provided free of charge. The scope of delivery as part of the documentation includes the sending of the EC declaration of conformity in accordance with the applicable machinery and EC directives.
   If no further requirements are set out in the order, the goods must be delivered in accordance with normal commercial characteristics and, if DIN/EN or equivalent standards are relevant, these must be taken as a basis and accompanied by the corresponding product documentation/specification.
   The contractor expressly guarantees that the delivered materials are not contaminated or have any impurities. The contractor bears the resulting costs.
   In the case of software products, the delivery obligation is only fulfilled when the complete (system-technical and user) documentation has also been handed over. In the case of programs created specifically for us, the program must also be delivered in source format.
2. If the contractor provides deliveries or services on our premises, the contractor is obliged to comply with the information on safety, environmental and fire protection for third parties in the currently valid version.
3. The contractor is obliged to determine and comply with the current state of the directives and laws applicable to its components with regard to substance restrictions.
   The contractor is obliged to use non-prohibited substances. Avoidant and hazardous substances in accordance with applicable laws and guidelines must be specified on the specifications by the contractor. If applicable, the safety data sheets must be submitted with the offers and with the delivery note (at least in German or English) when the first delivery is made. Information about violations of substance restrictions and delivery of prohibited substances must be reported to us immediately.
4. When delivering and providing services, the contractor is solely responsible for compliance with accident prevention regulations. Any protective devices required thereafter and any instructions from the manufacturer must be delivered free of charge.

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XI. Anti-corruption clause

1. The contractor declares that he has not participated in an inadmissible, restrictive competition agreement in the last two years and that neither antitrust nor commercial proceedings are pending against him.
2. Without prejudice to other termination and withdrawal rights, we are entitled to terminate the contract without notice or withdraw from it if the contractor or his employees
   a) to our employees who, on behalf of the contractor, are entrusted with the preparation, conclusion or execution of the contract, or persons close to them, directly or indirectly promise, offer, promise or grant gifts, other benefits or other benefits.
   b) commits or aids criminal acts against us under § 298 StGB (restrictive agreements in tenders), § 299 StGB (bribery and bribery in business transactions), § 333 StGB (granting of benefits), § 334 StGB (bribery), § 17 UWG (betrayal of business and trade secrets) or § 18 UWG (exploitation of documents) fall
3. In the event of violations under paragraphs 1. and 2, the contractor undertakes to pay a contractual penalty of 10% of the order amount. Further compensation claims remain unaffected.

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XII. Place of Fulfilment and Jurisdiction

1. The place of fulfilment is Schweringen.
2. In the event of all disputes arising from the contractual relationship, the action must be brought before the court responsible for our head office if the contractor is a merchant, a legal entity under public law or a special fund under public law. We are also entitled to sue at the contractor's head office.
3. German law applies.