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GENERAL TERMS AND CONDITIONS OF PURCHASE

1. SCOPE OF APPLICATION

1.1 Unless agreed upon otherwise in writing, the following General Terms and Conditions of Purchase (hereinafter "GTCP") shall apply to all – including future – orders placed with our business partners and suppliers ("sellers") and their execution. The GTCP shall only apply if the seller is an entrepreneur (Sec. 14 BGB – German Civil Code), a legal person under public law or a special fund under public law. The GTCP are freely accessible at any time on the Internet at https://leicht.com/en/terms-of-purchase and can be saved in reproducible form and printed out by the seller.

1.2 The GTCP shall apply in particular to contracts for the sale and/or delivery of movable things ("goods"), regardless of whether the seller manufactures the goods himself or purchases them from suppliers (Sec. 433, 651 BGB – German Civil Code). Unless agreed upon otherwise, the GTCP shall also apply as a framework agreement, in the version applicable at the time our order is placed or last communicated to the seller in text form, to similar future contracts, without us having to refer to them again in each individual case.

1.3 Our GTCP set forth below are deemed to have been accepted – even without a written confirmation – upon execution of our order by the seller at the latest. Any deviating, conflicting or additional general terms and conditions of business of the seller shall only apply if we expressly approve their validity in writing on a case-by-case basis; without our express written approval upon conclusion of the contract, they shall not be binding upon us, even if we accept deliveries from the seller or effect payments without reservation despite being aware of the seller's general terms and conditions of business.

2. CONCLUSION OF THE CONTRACT

2.1 Orders, agreements and modifications shall only be binding if issued or confirmed by us in writing. Offers submitted by the seller shall be free of charge and non-binding for us. Any deviations from our order shall be pointed out in the offer. Before accepting the order, the seller shall point out any obvious mistakes (e.g. typos and calculation errors) and omissions in the purchase order, including the order documents, for the purpose of correction or completion; otherwise, the contract is deemed to have not been concluded.

2.2 All correspondence shall be made with our purchasing department. There are no oral side agreements upon conclusion of the contract. Any individual agreements made with the seller on a case-by-case basis after conclusion of the contract (including side agreements, amendments and additions), such as arrangements with our technical or other departments, shall always take precedence over these GTCP. The content of such agreements shall be governed, subject to evidence to the contrary, by a written contract in the form of an addendum to the contract or the written confirmation by our purchasing department.

2.3 Where we request technical modifications or additions involving extra costs after placing the order, a cost estimate shall be submitted to our purchasing department in good time. We will not pay for any extra costs which we have not approved in writing.

2.4 The seller shall keep the conclusion of the contract confidential. He may only name us to third parties as reference after obtaining our written consent.

2.5 Force majeure events and other circumstances, in particular industrial actions, unrest, acts of war or terrorism, which entail a decrease in consumption and for which we are not responsible, entitle us to amend or withdraw from the contract, without the seller being entitled to claim compensation.

3. PRICES, DELIVERY, PACKAGING, WEIGHTS

3.1 All prices are fixed prices inclusive of value-added tax, if this is not shown separately. Unless agreed upon otherwise on a case-by-case basis, the price is quoted carriage paid to the receiving station at the place indicated in the purchase order and includes all services and ancillary services of the seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, freight charges including any transport and liability insurance).

3.2 Where the place of destination is not indicated and nothing else is agreed, the delivery shall be made "carriage paid" to our place of business in Waldstetten. The respective place of destination is also the place of performance for the delivery and any cure (obligation to deliver the goods to the purchaser's premises). Where a price "ex works" or "ex warehouse" is agreed upon by way of exception, we will only pay for the least expensive freight charges. All costs incurred up to handover to the carrier, including loading and haulage, shall be borne by the seller. The type of pricing shall not affect the agreed place of performance.

3.3 Unless agreed upon otherwise, we are entitled to return to the seller large packaging in good condition carriage free against refund of 2/3 of the value indicated for this in the invoice. Other shipping instructions shall be expressly pointed out in the delivery note.

4. TERMS OF DELIVERY AND SHIPMENT, DEFAULT OF DELIVERY

4.1 The delivery period indicated in our purchase order is binding. Setting another deadline or issuing a warning is not required. Any deliveries prior to this date are only permitted with our consent. The seller is obliged to notify us in writing without delay if he anticipates not being able to keep the agreed delivery periods for whatever reason.

4.2 We reserve the right to accept excess or short deliveries.

4.3 If the seller fails to render the performance or does not render the performance within the agreed delivery period or is in default of delivery, our rights – in particular the right to withdraw from the contract and claim compensation – shall be governed by the statutory provisions. The regulation set forth in Sec. 4.4 of these GTCP shall remain unaffected.

4.4 If the seller is in default of delivery, we are entitled – in addition to further statutory claims – to claim lump-sum compensation for the damage caused by default in the amount of 1% of the net contract value of the order per full calendar week, but altogether no more than 5% of the net price of the delayed goods. The amount of this compensation shall be reduced / increased if we provide evidence of higher or the seller of lower damage.

4.5 All consignments must be accompanied by a packing list and shipping documents. The shipping forms must state the date (issue and dispatch), the content of the delivery (all individual components, weights, dimensions, Leicht item no.) and our order number / order date. Deliveries without sufficient accompanying documents will be deferred with respect to handling and payment. We cannot be held responsible for the resulting delays in processing and payment.

4.6 The shipping instruction is stated on the front page of our purchase order. Further information on the shipping instruction is provided in the appendix to our purchase order (= Information on the shipping instruction).

4.7 Goods not delivered as ordered can be returned carriage forward and the seller can be held liable for any potential damage.

4.8 Since our operations are suspended on Saturdays, all consignments, namely truck and wagon loads, shall be dispatched such that they do not arrive on Saturdays. Any expenses resulting from noncompliance with this provision shall be borne by the seller.

5. PERFORMANCE, PASSING OF RISK, DEFAULT OF ACCEPTANCE

5.1 The seller is not entitled to have the contractual performance rendered by third parties (e.g. subcontractors) without our prior written consent. The seller shall bear the procurement risk for his performance, unless agreed upon otherwise on a case-by-case basis (e.g. limitation to stock).

5.2 The risk of accidental destruction and accidental deterioration of the goods shall pass to us upon handover of the goods at the place of performance. Where acceptance has been agreed, this shall be authoritative for the passing of risk. In the event of pure delivery of goods, the risk shall not pass to us until the department authorised by us has acknowledged the receipt. In the case of wagon loads, the weight determined by the railway authorities at the place of arrival, in the case of truck loads, the weights measured by our in-house scales shall be authoritative for the calculation. The seller undertakes to dispatch the goods intended to be shipped to us such that the Federal Railways or the forwarder cannot disclaim liability for transport damage.

5.3 The occurrence of our default in acceptance shall be governed by the statutory provisions. However, the seller must expressly offer his performance to us, even if a defined or definable calendar date is agreed for an act or collaboration on our part (e.g. provision of material). If we are in default of acceptance, the seller is entitled to claim reimbursement of the extra expenditure incurred by him (Sec. 304 BGB). Where the contract relates to non-fungible goods to be manufactured by the seller (products manufactured to specification), the seller is only entitled to further rights if we have undertaken to collaborate and are responsible for the failure to collaborate.

6. TERMS OF PAYMENT

6.1 The agreed price shall be due and payable within thirty (30) calendar days.

6.2 If we pay the price within fourteen (14) days, the seller shall grant us three (3) % discount on the net invoice amount.

6.3 The payment shall be due after complete delivery and performance (including potentially agreed acceptance) as well as receipt of a proper invoice. Unless agreed upon otherwise, the date of receipt of the invoice is deemed to be the date on which the invoice is received at our headquarters in Waldstetten. The term of payment shall not commence on the date of invoice, but on the date of receipt of the invoice. If the goods are received after the invoice, the term of payment and the discount period shall commence on that date. Incomplete, non-auditable invoices – in particular invoices without order number / order date / notice of receipt – will be sent back to the seller for completion. The term of payment shall not commence until receipt of the completed invoice. In the event of bank transfer, the payment is deemed to have been received in time if our payment order is received by the bank prior to expiry of the payment term; we cannot be held responsible for delays that are attributable to the banks involved in the payment process.

6.4 We do not effect advance payments and cash-on-delivery payments.

6.5 We are entitled to set off and retain payments and use the defence of unperformed contract within the statutory limits. Furthermore, we are entitled to retain due payments as long as we still have claims against the seller due to incomplete or defective performance.

6.6 Any claims under this contract may only be assigned to third parties with our prior written consent, which shall not be unreasonably withheld.

6.7 We shall not owe any interest on maturity. Default of payment shall be governed by the statutory provisions.

6.8 The seller is only entitled to exercise rights of setoff or retention if his counterclaims are legally established or uncontested.

7. NOTICE OF DEFECTS

The obligation under commercial law to examine the goods and give notice of any defects shall be governed by the statutory provisions (Sec. 377, 381 HGB – German Commercial Code), with the following proviso: Our obligation to examine the goods shall be limited to defects which are revealed as part of our incoming inspection by visual inspection of the goods and the shipping documents (e.g. transport damage, incorrect or short delivery) or are detected during our quality control, where customary, also by way of random sampling. Where acceptance has been agreed, we are not obliged to examine the goods. Apart from that, it depends on to what extent an examination is possible according to the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects detected later shall remain unaffected. Notwithstanding our obligation to examine the goods, our notice of defects is deemed to have been given without delay and in time if it is sent within eight (8) working days of detection, in the case of apparent defects, of delivery.

8. CLAIMS BASED ON DEFECTS

8.1 Our rights based on material and legal defects of the goods (including incorrect and short delivery, improper assembly as well as faulty assembly and operating instructions or instructions for use) and other breaches of obligations by the seller shall be governed by the statutory provisions, unless agreed upon otherwise below.

8.2 According to the statutory provisions, the seller shall be liable in particular for the goods having the agreed quality at the time the risk passes to us. Agreements on the quality of the goods pertain to the agreed workmanship and quality, the intended purpose and compliance with the state of the art, the relevant requirements of the authorities and the competent liability insurance associations as well as the statutory provisions. In any case, those product descriptions which – in particular by way of designation or reference in our purchaser order – are the subject matter of the respective contract or are incorporated in the contract in the same way as these GTCP are deemed to constitute agreements on quality, regardless of whether the product description originates from us, from the seller or from the manufacturer.

8.3 We do not agree to any restriction of our statutory compensation claims, in particular arising from tort, positive breach of contract, culpa in contrahendo, including all claims arising from consequential damage caused by defects, either with regard to the degree of fault or with regard to the extent or limit of liability.

8.4 The seller's warranty shall also extend to the components supplied by his subcontractors. The seller is not entitled to assign to us his claims against the respective subcontractor and make his own warranty obligation conditional on our action against the subcontractor remaining unsuccessful. 8.5 The cure shall also include the removal and reinstallation of the defective goods, insofar as the goods have been incorporated into or attached to another product according to their nature and intended purpose. Our statutory claim for reimbursement of the corresponding expenses shall remain unaffected.

8.6 The expenses required for inspection and cure shall be borne by the seller, even if it becomes apparent that a defect was actually not present. Our liability to pay compensation in the event of an unjustified request for remediation of defects shall remain unaffected; in this respect, we shall only be liable if we have recognised or were grossly negligent in failing to recognise that no defect was present.

8.7 Notwithstanding our statutory rights and the regulations set forth in Sec. 8.5, the following applies: If the seller does not meet his obligation to effect cure – at our option by either remedying the defect (repair) or delivering goods free of defects (substitute delivery) – within a reasonable period set by us, we are entitled to remedy the defect ourselves and claim from the seller reimbursement of the necessary expenses and/or a corresponding advance payment. If the cure effected by the seller fails or is unreasonable for us (for example, due to special urgency, a hazard to operational safety or imminent occurrence of disproportionate damage), setting a deadline is not required; we will inform the seller of such circumstances without delay, if possible, in advance. In this case, too, we are entitled to remedy the defects ourselves at the seller's expense, insofar as only minor defects are to be remedied. Minor defects are those which can be remedied at a cost of no more than EUR 500.00.

8.8 Apart from that, we are entitled to reduce the purchase price or withdraw from the contract in accordance with the statutory provisions in the event of material or legal defects. In addition, we are entitled to claim compensation and reimbursement of expenses in accordance with the statutory provisions. The seller must reimburse us for all verifiable costs incurred by us due to delayed delivery or performance or covering purchase. The acceptance of the delayed delivery or performance shall not constitute a waiver of compensation claims.

8.9 Notwithstanding Sec. 442 (1) s. 2 BGB, we are also entitled to claims based on defects without restriction if the defect remained unknown to us upon conclusion of the contract as a result of gross negligence.

8.10 As regards machines and systems, the following applies in addition: (a) The seller shall deliver a complete machine or system containing all components that are necessary for the flawless operation of that machine or system in compliance with the contractually agreed and warranted quality, even if the necessary individual components are not expressly stated in the purchase order. (b) If the machine or system supplied by the seller does not feature the agreed performance data and characteristics, the seller shall take the corresponding measures at his own expense after consultation with us, including alterations, where required, until the machine or system has the agreed quality. If the seller fails to do so within a reasonable period, we are entitled to the statutory warranty claims, as listed in Sec. 8.2 to 8.8.

8.11 The seller shall inform us in good time of any planned technical modifications (=material input, modifications in design) of the goods ordered (in particular production material). In this case, we reserve the right to reject any modifications that are not reasonable for us or enter into new negotiations with the seller.

9. LIMITATION PERIOD

9.1 The mutual claims of the parties shall expire in accordance with the statutory provisions, unless agreed upon otherwise below.

9.2 Notwithstanding Sec. 438 (1) no. 3 BGB, the general limitation period for claims based on defects shall be three (3) years from delivery of the goods. Where acceptance has been agreed, the period shall commence upon acceptance. The three-year limitation period shall also apply to claims based on legal defects, without prejudice to the statutory limitation period for third-party claims for restitution (Sec. 438 (1) no. 1 BGB); furthermore, claims based on legal defects shall on no account expire as long as the third party can still assert the claim against us, in particular in the absence of limitation. Apart from that, the respective warranty period shall be extended by the duration of the operational interruption caused by repair work or the delivery of new goods.

9.3 The limitation periods under sale of goods law, including the extension stated above, shall apply – within the statutory limits – to all contractual claims based on defects. If we are also entitled to non-contractual compensation claims due to a defect, the standard statutory limitation period (Sec. 195, 199 BGB) shall apply, unless the application of the limitation periods under sale of goods law entails a longer limitation period in the individual case.

10. RIGHT OF SETOFF AND RETENTION

We are entitled to set off our compensation claims against claims of the seller against us. Correspondingly, we are also entitled to retain a reasonable portion of the purchase price until the warranty claims are settled.

11. RECOURSE AGAINST SUPPLIERS

11.1 We are entitled without restriction to our statutory rights of recourse within the supply chain (recourse against suppliers pursuant to Sec. 445a, 445b, 478 BGB) in addition to the claims based on defects. In particular, we are entitled to claim from the seller exactly that type of cure (repair or substitute delivery) which we owe to our customer in the individual case. Our statutory right to choose (Sec. 439 (1) BGB) shall not be limited thereby.

11.2 Before we acknowledge or settle a claim based on defects asserted by one of our customers (including reimbursement of expenses pursuant to Sec. 445a, (1), 439 (2) and (3) BGB), we will notify the seller and, giving a brief description of the facts, request a written statement. If a substantiated statement is not made within a reasonable period and an amicable solution is not found either, the claim based on defects actually allowed by us is deemed to be owed to our customer. In this case, the provision of evidence to the contrary is incumbent upon the seller.

11.3 Our claims from recourse against suppliers shall also apply if the defective goods have been further processed by us or another entrepreneur, for example by incorporating them into another product.

12. PRODUCERS' LIABILITY

12.1 If the seller is responsible for product damage, he shall indemnify us from and against any claims asserted by third parties to the extent that the cause lies within his sphere of control and organisation and he is personally liable in relation to third parties.

12.2 Within the scope of his obligation to indemnify, the seller shall reimburse any expenses pursuant to Sec. 683, 670 BGB arising from or in connection with claims asserted by third parties, including any recall campaigns conducted by us. As far as possible and reasonable, we will inform the seller of the content and scope of recall actions, giving him the opportunity to make a statement. Further statutory claims shall remain unaffected.

12.3 The seller shall take out and maintain product liability insurance with a lump-sum cover of at least EUR 10 million per personal injury / material damage.

12.4 Upon request, the seller is obliged to provide written evidence of this insurance.

13. DRAWINGS AND OTHER DOCUMENTS – COPYRIGHTS

13.1 We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, instructions for execution, product descriptions and other documents. Such documents may be used exclusively for the contractual performance and shall be returned to us after implementation of the contract without being requested. Reproductions are not permitted. The documents shall be kept confidential from third parties, including after termination of the contract. The confidentiality obligation shall only expire if the knowledge contained in the documents made available has become public.

13.2 The seller is responsible for ensuring that the delivery of the goods does not infringe any third-party copyrights, patents or statutory provisions. He shall be liable for the consequences of such infringement.

14. RETENTION OF TITLE

The ownership of the goods shall be transferred to us unconditionally and regardless of the payment of the purchase price. However, if we accept an offer of the seller for transfer of ownership conditional upon payment of the purchase price in individual cases, the seller's retention of title shall expire upon payment of the purchase price for the goods delivered at the latest. Even before payment of the purchase price, we remain authorised to resell the goods in the ordinary course of business, subject to prior assignment of the claim arising therefrom (alternatively, application of simple retention of title extended to resale). In any case, all other forms of retention of title, in particular extended and assigned retention of title and retention of title extended to further processing, shall be excluded.

15. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW

15.1 The place of performance for deliveries shall be the receiving station indicated by us. The place of performance for payments shall be our place of business in Waldstetten.

15.2 The exclusive place of jurisdiction for any disputes arising from the contractual relationship shall be our place of business in Waldstetten, insofar as the seller is a merchant within the meaning of the German Commercial Code, a legal person under public law or a special fund under public law. The same applies if the seller is an entrepreneur within the meaning of Sec. 14 BGB. The agreed place of jurisdiction shall also apply to proceedings on claims arising from cheques and bills of exchange. We are entitled to bring legal action at the sellers place of jurisdiction. Prior-ranking statutory provisions, in particular those concerning exclusive jurisdictions, shall remain unaffected.

15.3 The law of the Federal Republic of Germany shall apply, without giving effect to the provisions of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods.

© LEICHT Küchen AG 2021
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