Terms and Conditions (Purchasing)

Version of 24 March 2020

This English text is a convenience translation of the German "Allgemeine Einkaufsbedingungen". In the event of any discrepancy, the German version shall prevail.

I. Content and conclusion of the contract

1. These purchasing conditions apply only towards entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
   
   
2. These purchasing conditions apply exclusively. Conflicting terms of the supplier, or terms deviating from our purchasing conditions, shall not become part of the contract unless we have expressly agreed to their validity in writing.
   
   
3. These purchasing conditions apply to all orders for goods and services – including future orders – and to their performance by the supplier. This also applies where we accept performance without reservation in the knowledge of conflicting terms of the supplier or terms deviating from these purchasing conditions.
   
   
4. The preparation and submission of offers by the supplier is free of charge for us. The supplier is bound by a submitted offer for a period of two weeks from the day following receipt of the offer by us.

II. Order processing and delivery

1. Agreed delivery dates and delivery periods are binding and render the performance owed by the supplier due. Compliance with the delivery date depends on the handover of the performance owed at the place of destination. Unless agreed otherwise, the delivery period is met if the goods have been made available ready for unloading at the place of destination within the delivery period on a working day within our normal business hours.
   
   
2. Deliveries that do not comply with the specifications of the order may be rejected by us and returned to the supplier at the supplier's cost and risk. This also applies to excess or short deliveries or partial performance to which the supplier is not entitled, unless acceptance is reasonable for us in the individual case.
   
   
3. The supplier bears the risk of accidental destruction or accidental deterioration of the performance – including for "franco" and "free domicile" deliveries – until the goods are handed over at the place of destination.
   
   
4. If the supplier retains title to its delivery, its conditions shall apply with the proviso that title passes to us upon payment for the goods and that other forms of retention of title (in particular a current-account or group retention of title) do not apply.
   
   
5. We are only obliged to check the delivered and handed-over goods against the accompanying documents for identity and defects as well as for externally recognisable transport damage, and to notify the supplier of such defects without undue delay after they have been established. The supplier undertakes to adapt its outgoing goods inspection accordingly.
   
   
6. We shall notify the supplier in writing of defects in the delivery without undue delay as soon as they are established in the course of proper business operations. In this respect the supplier waives the objection of belated notification of defects.

III. Amendments to the contract

1. Changes to the main performance with regard to quality, quantity, design, weight or other specifications, including the modalities of performance and fulfilment, shall be carried out by the supplier at our written request, unless the change is obviously atypical for the trade or obviously unreasonable for the supplier. If our request for a change demonstrably affects the agreed prices or agreed delivery dates, these effects shall be settled by mutual agreement in a reasonable manner.

IV. Prices and payment terms

1. The prices stated in the order are fixed prices and apply DDP Schöllkrippen Incoterms 2010 or another place of destination named by us.
   
   
2. All prices are gross prices in euros (€). Statutory value added tax shall be shown separately in the invoice at the applicable statutory rate.
   
   
3. The agreed prices cover all services which, according to the order, its special conditions and any annexes, other performance-related agreements and commercial practice, form part of the contractual services. This therefore includes in particular all packaging, customs clearance, transport and insurance costs as well as disposal costs for packaging material, all other fees and charges (e.g. licence fees, public-law fees and charges) as well as the costs of delivery, commissioning, acceptance, equipment or material documentation and all other documents, items and services as specified in the order or other contractual documents.
   
   
4. Invoices of the supplier only become due on condition of a delivery in conformity with the contract and – in addition to the statutory components (e.g. Section 14 (4) of the German VAT Act) – complete and correct details of the order number, the subject of the order, the place of delivery, the quantity of the items delivered, the delivery note number, the delivery date and the prices. If any of this information is missing or incorrect, we may demand a corrected invoice from the supplier. The due date shall then only be calculated from the moment a corrected invoice issued in conformity with the contract is received.
   
   
5. A separate invoice shall be issued by the supplier for each order. Invoicing shall take place no later than within 3 working days after handover of the performance owed.
   
   
6. Unless otherwise agreed in writing, our payment term for invoices is 30 calendar days after delivery and receipt of an invoice issued in conformity with the contract within the meaning of paragraph 4 above.
   
   
7. We reserve the right to choose the method of payment. In the case of payment by cheque, the timeliness of payment depends on the cheque being received by the payee within the payment period. If we pay by bank transfer, the transfer order must be received by the bank within the payment period.
   
   
8. Without our prior written consent, the supplier is not entitled to assign its claims against us or to have them collected by third parties. If, contrary to this agreement, the supplier assigns its claim against us to a third party without our consent, the assignment shall nevertheless be effective; we may, however, at our discretion make payment with discharging effect either to the supplier or to the third party.
   
   
9. We are entitled to rights of set-off and retention in accordance with the statutory provisions. The supplier is not entitled to set off against our claims or to assert a right of retention unless its claim is undisputed, acknowledged by us or established as final and absolute, or is based on the same contractual relationship.

V. Warranty, liability and limitation periods

1. The supplier is obliged to provide us with the goods free from defects of quality and defects of title. In particular, it warrants that its deliveries and services comply with the contractually agreed properties and qualities, the applicable standards and all safety, occupational health, accident prevention and other valid regulations.
   
   
2. If the delivered item is defective, the supplier shall provide the type of subsequent performance determined by us according to our wishes and shall bear all costs and expenses arising from this, including removal and installation costs.
   
   
3. All expenses referred to in the two preceding paragraphs shall also be borne by the supplier if they are incurred at our customer's premises.
   
   
4. If the defective goods have not yet been treated, processed, attached or installed, the supplier shall be obliged, at our request, to sort them out without undue delay and to render subsequent performance, the latter at our option. If the supplier refuses subsequent performance, if it fails, if it is unreasonable for us, or if the supplier does not comply with our request for subsequent performance within a period reasonable in the individual case, we shall be entitled to the further remedies for defects under Section 437 nos. 2 and 3 BGB. Under the same conditions we are entitled to remedy the defect ourselves or have it remedied by third parties at the supplier's cost and risk. If, as a result of asserting remedies for defects, we are obliged to return the goods, we shall be entitled to return them to the supplier at the supplier's risk.
   
   
5. If, despite compliance with the duty to inspect, the defect is only established after the beginning of processing, treatment, attachment or installation and is notified to the supplier at that point, we shall likewise be entitled to the statutory remedies for defects and to the right of self-remedy in accordance with the preceding paragraph. In particular, we may demand from the supplier reimbursement of the removal and installation costs necessary for the purpose of subsequent performance.
   
   
6. Further claims arising from the delivery of defective goods under Section 437 BGB or directly under the provisions referred to therein remain unaffected.
   
   
7. The supplier shall be liable in accordance with the statutory provisions for compensation of any damage that we incur directly or indirectly as a result of a defective delivery, as a result of the breach of other main or ancillary contractual obligations, or for other reasons attributable to the supplier, unless the supplier is not responsible for the breach of duty.
   
   
8. If claims are asserted against us on the basis of strict liability that cannot be excluded towards third parties, the supplier shall indemnify us against these on first demand and shall step in towards us as if it were directly liable. Section 426 (1) sentence 2 and (2) BGB shall apply to the settlement of damages between us and the supplier. This also applies in the event of a direct claim against the supplier.
   
   
9. If we intend to assert claims against the supplier under the above provisions, we shall inform and consult the supplier without undue delay and comprehensively. We shall give the supplier the opportunity to investigate the damage event and shall coordinate with the supplier on the measures to be taken, in particular in settlement negotiations.
   
   
10. Our claims for defects become time-barred after 36 months from the passing of risk. The period begins with the handover, in conformity with the contract, of the delivery or service owed. The supplier's liability for defects ends in any case no later than 10 years after delivery of the goods. This limitation does not apply where our claims are based on facts which the supplier knew, or of which it could not have been unaware, and which it did not disclose to us.
    
    
11. The supplier hereby assigns to us, on account of performance, all claims to which it is entitled against its own upstream suppliers on the occasion of or in connection with the delivery of defective goods or of goods affected by defects of quality within the meaning of Section 434 BGB. The supplier undertakes to hand over to us, on first demand, all documents and information necessary to assert such claims.

VI. Confidentiality and information security

1. The supplier is obliged to keep confidential all information which it receives from us on the occasion of performing the order or otherwise comes to know, and which is marked as confidential or whose confidentiality results from its significance or its nature. The supplier shall use such information exclusively for the purposes for which it was made available under the contract and shall not reproduce it or otherwise use it for its own purposes or the purposes of third parties, nor pass it on to third parties. "Passing on to third parties" within this meaning also includes passing on to affiliated companies within the meaning of the German Stock Corporation Act as well as to persons or companies engaged by the supplier in the performance of the order.
   
   
2. All information, formulations, techniques, methods, models, designs and instruments contributed by us, as well as any specifications, photographs, drawings, calculations and other documentation provided by us (including offers, work results or expert opinions), and all other commercial or technical information directly or indirectly concerning the use of the contractual services, shall be deemed confidential information. They are and remain our intellectual property and may only be disclosed by the supplier to third parties with our express written consent.
   
   
3. The supplier shall impose corresponding obligations on its sub-suppliers.

VII. Termination for cause, force majeure

1. If one contracting party suspends its payments, the other contracting party shall be entitled, at its option, to terminate the contract for cause or to withdraw from it with regard to the part not yet performed. The same applies if the economic situation of a contracting party deteriorates in a manner that seriously jeopardises performance of the contract and that party is unable to provide sufficient security for performance of the contract within a reasonable period.
   
   
2. Force majeure, industrial disputes, civil unrest, official measures or other unforeseeable, unavoidable and serious events release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. The contracting parties are obliged to provide each other without undue delay with all necessary and reasonable information and to adapt their contractual obligations to the changed circumstances in accordance with the principles of good faith.

VIII. Place of performance and place of jurisdiction

1. The place of performance for all services of the supplier is our registered office, unless otherwise stated in the order. The place of performance for our payments is likewise our registered office.
   
   
2. The exclusive place of jurisdiction is the location of our registered office, unless the law prescribes a mandatory place of jurisdiction to the contrary.
   
   
3. We are entitled to assert claims before the court at the supplier's registered office.

IX. Business ethics and compliance

1. The supplier undertakes to comply with the law as well as with fair competition and the prohibition of corruption and bribery in accordance with the PaintSystems code of conduct for suppliers.

X. Sustainability policy in the supply chain

1. The supplier undertakes to handle resources and raw materials in a sustainable, responsible and careful manner, based on the ISO 14001 standard.
   
   
2. In particular, the supplier shall endeavour to reduce energy and water consumption as well as greenhouse gases. The supplier shall also increasingly rely on renewable energy and on suitable recycling and disposal concepts.
   
   
3. The supplier relies on responsible chemicals management.
   
   
4. The supplier shall endeavour to implement these requirements throughout the supply chain.

XI. Final provisions

1. The law of the Federal Republic of Germany applies exclusively, unless the contracting parties agree otherwise in writing. In particular, the application of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) is excluded.
   
   
2. Should any provision of these purchasing conditions and of the further agreements concluded be or become invalid, the validity of the remainder of the contract shall not be affected. The contracting parties are then obliged to negotiate a provision replacing the invalid provision in accordance with the principles of good faith.