General Terms and Conditions of Purchase

General Terms and Conditions of Purchase of Graphite Materials GmbH (hereinafter referred to as “Graphite Materials”)
as at: April 18, 2019

  Article 1
General Provisions, Area of Application

(1) The following General Terms and Conditions of Purchase (GCP) shall apply to all business relations with all business partners and suppliers of Graphite Materials (hereinafter referred to as “Seller”). They shall only apply to persons (contractors) who exercise their commercial or independent professional activity on conclusion of the contract and to corporate bodies organized under public law and legal entities under public law.

(2) The GCP shall apply in particular to contracts covering the sale and/or the delivery of moveable goods (hereinafter also referred to as “Goods”), regardless of whether the Goods are manufactured by the Seller or are purchased from subcontractors (pursuant to sections 433, 651 of the German Civil Code). The GCP, in the version currently in effect, shall apply as a framework agreement for future contracts entered into with the same Seller for the sale and/or supply of moveable goods, obviating the need for us to make reference to them in each individual instance; however, in this case, the Seller shall be immediately informed about amendments to our GCP.

(3) These General Terms and Conditions of Purchase shall apply exclusively for our orders. Any conflicting terms of sale or supply shall hereby be expressly excluded. Amendments or additions to these Terms and Conditions of Purchase shall only be binding if Graphite Materials has given its express written consent.

(4) Individual agreements made with the Seller in specific cases (including supplementary agreements, additions and amendments) shall always have priority over these GCP. The content of such arrangements is subject to a written contract or our written confirmation.

(5) Legally binding declarations and notifications that the Seller is required to make or provide to us after the conclusion of the contract (e.g. deadlines, reminders, declaration of cancellation) must be given in writing in order to be effective.

(6) References made to valid statutory provisions shall only have a clarifying significance. Even without such clarification, the statutory provisions shall apply provided that they have not been directly amended or expressly excluded in these GCP.

  Article  2
Conclusion of Contract

(1) Our order cannot be considered valid until it has been given or confirmed in writing. The Seller shall undertake to inform us of any obvious errors (e.g. typing errors and miscalculations) and incompleteness of the order, including the order documents, in order to enable us to correct or complete the order before acceptance; otherwise the contract shall be deemed not concluded.

(2) Each order shall be confirmed immediately but no later than five days after receipt or – if any other provision has been made in the order – by the indicated date. The order dates, the binding delivery date and the binding fixed price must be specified. In case of a delayed acceptance, we reserve the right to cancel the order within three days of receipt of the delayed acceptance.

(3) The delivery dates stipulated in the order shall be binding; if the supplier does not immediately object to these dates after receipt of the order, the order and the specified date shall be deemed to have been accepted.

(4) The supplier is not entitled to subcontract the order to third parties without our prior written consent

Article 3
Prices, Invoicing, Terms of Payment

(1) Only the prices stipulated in the order shall apply. All prices include value-added tax, unless this is listed separately. If no special agreements have been made, the price shall include all services and auxiliary services provided by the Seller (e.g. assembly, installation), as well as all additional costs (e.g. proper packaging, transportation costs, including possible transport and liability insurances). Packaging material must be returned by the Seller upon request.

(2) The agreed price is payable no later than two months following complete delivery and service (including any agreed acceptance inspections) and the receipt of a proper invoice. Invoices will only be processed if they specify our order number. In the case of rejected invoices, the date of receipt of the corrected invoice shall prevail.

(3) Unless otherwise expressly agreed, payments made by Graphite Materials shall, at our discretion, either be subject to a 3 % cash discount if payments are made within a fortnight of receipt of the delivery and invoice, or to a 2 % cash discount if payments are made within 30 days, or net without deduction if payments are made within two months.

(4) Statutory provisions govern when we are deemed to be in default. In any case, however, the Seller must give written notice of default.

(5) In the event of a delivery being made sooner than agreed, the term of payment shall only commence on the date on which the delivery/service was due.

(6) If, in exceptional cases, no prices are stated, the supplier’s price list that was disclosed at the time of order placement shall apply with the above-mentioned deductions.

(7) Payments do not imply that we recognize the delivery or service as being in accordance with the contract.

(8) We shall be entitled to the legal rights of offsetting and retention, as well as to the right to object in the event of non-performance of the contract. If defects in the delivery and service have not been eliminated in full, we shall be entitled to withhold payments up to the total invoice amount.

(9) The Seller shall only have a right of compensation and withholding for legally enforceable or undisputed counterclaims.

Article 4
Delivery Period and Dates

(1) Agreed dates and terms shall be binding. If the delivery period is not stipulated in the order and has not otherwise been agreed, it shall be considered to be four weeks after contract conclusion. The Seller shall undertake to inform us in writing or by text message if, for whatever reason, he anticipates that he will be unable to comply with the agreed delivery times.

(2) No reminder is issued in the event of a default. Adherence to the delivery date or delivery term shall be determined on the basis of the date of receipt of the goods at our premises or at another specified shipping address.

(3) If the Seller fails to perform his service, fails to perform within the agreed delivery period, or is in default, our rights – in particular, to rescission and damages – shall be regulated by statutory provisions. This shall not affect the validity of the following provisions.

(4) We shall be entitled to a reimbursement of all additional costs that arise as a result of a delay in deliveries or services for which the Seller is responsible. The acceptance of a late delivery or service shall not imply waiver of claims for compensation.

(5) If the agreed delivery period pursuant to Art. 4 (4) is not observed, we shall – in addition to further legal claims – be entitled to a lump-sum payment of our default damages in the amount of 0.1 % of the net price per full working day, but not more than 5 % of the net price of the delayed order sum. We remain entitled to prove that we suffered greater damages. The Seller remains entitled to prove that we suffered no damages whatsoever or only materially insignificant damages.

Article 5
Service, Delivery, Passing of Risk, Default of Acceptance

(1) Without our prior written consent, the Seller shall not be entitled to have the contractual service performed by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for his services, unless otherwise mutually agreed for each individual case (e.g. sale of goods in stock).

(2) In Germany, the delivery shall be sent freight prepaid to the address specified in the order. If the destination is not indicated and no other provision has been made, the delivery shall be made to our place of business in Zirndorf. For the purposes of debt collection, the respective place of delivery is also the place of performance.

(3) A delivery note stating the date (of issue and dispatch), the content of the delivery (number and quantity of items), as well as our order identification (date and number) shall be included with the delivery. If a delivery note is not included or if it is incomplete, we shall not be responsible for any resulting delays in handling or payment.

(4) A corresponding dispatch note with the same content as above shall be sent to us separately from the delivery note.

(5) The risk of accidental loss and deterioration of the goods shall be transferred to us upon transfer at the place of performance. If an acceptance has been agreed, this shall be decisive for the transfer of risk. The provisions of the law on goods delivered in exchange for payment shall apply correspondingly to an acceptance inspection. If we are in default of acceptance, this shall be deemed equivalent to transfer or acceptance.

(6) The statutory provisions shall govern when we are deemed to be in default in acceptance. However, the Seller shall be obliged to expressly offer his service if a specific or specifiable calendar date has been agreed for an action or co-operation on our part (e.g. provision of material). If we are in default of acceptance, the Seller shall be entitled to request compensation for his additional expenses pursuant to the statutory provisions (section 304 of the German Civil Code). If the contract relates to goods that have to be manufactured and cannot be exchanged (custom-made items), the Seller shall be entitled to enforce further legal claims only if we agreed to co-operate and the failure of such co-operation is our responsibility.

Article 6
Confidentiality and Reservation of title

(1) We shall reserve the rights of ownership and copyrights for images, plans, drawings, calculations, standard operating procedures, product descriptions and all other documents. Said documents shall be used exclusively for the contractual performance and shall be returned to us after performance of the contract. The documents may not be disclosed to third parties, even after termination of the contract. This duty of confidentiality shall only expire when the expertise contained in the transferred documents has become known to the general public.

(2) The aforementioned provision shall also apply to material (e.g. software, finished or semi-finished products) as well as to tools, models, samples and other items that we provide to the Seller for manufacturing. Provided that such items have not been processed, they shall be stored separately at the expense of the Seller and insured to the customary extent against destruction and loss.

(3) The processing, mixing or combining (further processing) of supplied items by the Seller shall be performed for us. The same shall apply to the further processing of Goods delivered by us, so that we shall be considered the manufacturer and shall obtain ownership of the product no later than upon further processing in accordance with the statutory regulations.

(4) The transfer of ownership of the Goods to us shall take place without fail and regardless of payment of the price. However, should we accept, in individual cases, an offer of assignment by the Seller in consequence of the payment of the purchase price, the reservation of title of the Seller shall expire at the latest upon payment of the purchase price for the delivered Goods. During the regular course of business, we shall be entitled to resell the Goods before payment of the purchase price under assignment in advance of the claim arising from this (alternatively application of the simple reservation of title, and the reservation of title extended to reselling). In any case, all other forms of reservation of title shall be excluded, in particular the enhanced and the forwarded reservation of title, as well as the reservation of title extended to further processing.

Article 7
Warranty, Complaint, Duty to Inspect, Notify and Object

(1) Unless agreed otherwise, the statutory provisions shall apply to our rights for material and legal defects in the Goods (including incorrect and partial delivery, as well as improper assembly, faulty assembly instructions, manuals or instructions for use) and to other breaches of obligation by the Seller.

(2) Under the statutory provisions, the Seller shall be liable, in particular, for ensuring that the Goods meet the required quality upon transfer of risk to us. In particular, such product descriptions, technical specifications, operating data, operating points and performance data specified by the Seller that form part of the respective contract – in particular, due to their being designated or referred to in our order – or are included in the contract in the same manner as these GCP, are considered to constitute agreement as to quality. In this regard, it shall make no difference whether the product description was issued by us, by the Seller or by the manufacturer.

(3) In deviation from section 442 par. 1 clause 2 of the German Civil Code, we shall also be entitled without limitation to claims for damages if the defect remained unknown to us at the time of contract conclusion due to gross negligence.

(4) With regard to the duty to inspect and object, the statutory provisions (sections 377, 381 of the German Commercial Code) shall apply provided that our duty to inspect is limited to defects (e.g. transport damage, incorrect or partial delivery) that become obvious during external assessment as part of our incoming goods inspection, including shipping documents, as well as during random-sample quality control. If an acceptance inspection has been agreed, there shall be no duty of inspection. Furthermore, the duty depends on the extent to which an investigation is feasible in the ordinary course of business given the circumstances of the individual case. This shall not affect our duty to object to defects that are discovered later. In any case, our notice of defects shall be regarded as prompt and timely if it was received by the Seller within three working days.

(5) The Seller shall bear the costs incurred for the examination and subsequent repair (including possible disassembly and assembly costs), even if it turns out to be the case that there was in fact no defect. Our liability for damages due to an unjustified request for elimination of defects shall remain unaffected; however, we shall only be liable if we recognized that no defect existed or if we were grossly negligent in failing to so recognize.

(6) If the Seller does not fulfill his obligation of subsequent performance – at our discretion, by eliminating the defect (repair) or by supplying a defect-free item (replacement) – within a reasonable deadline set by us, we shall be entitled to eliminate the defect ourselves and to demand compensation for the necessary expenditure or a corresponding advance payment from the Seller. If repair by the Seller failed or if it is unreasonable to accept it (e.g. due to special urgency, risks to general plant safety or the threat of unreasonable damage), no deadline is necessary; we shall undertake to inform the Seller immediately of such circumstances, where possible, in advance.

(7) We shall be entitled to eliminate defects at the Seller’s expense after prior notification, provided that the immediate elimination of the defect can be justified and realized by a special interest on our part, that the elimination of the defect by the supplier would generate greater expenses than elimination by us, or that the elimination of the defect by the supplier would result in delays that would impede the performance of our obligations towards our contract partner.

(8) In addition, in the event of material or legal defects, we shall be entitled under the statutory provisions to reduce the purchase price or to rescind the contract. Furthermore, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.

(9) We shall be entitled to return Goods that have not been delivered in accordance with the contract at the Seller’s risk and expense.

(10) In the event of a breach of obligation over and above the supply of faulty Goods (e.g. duty of disclosure, of consultation or inspection), Graphite Materials shall be entitled to demand compensation for the resulting consequential damage.

(11) We shall be entitled to be reimbursed for all damage caused by the supplier in connection with the delivery. This shall in particular apply to material used unnecessarily and to wages paid as a consequence of hidden defects, as well as to increased costs in order to meet own delivery schedules and other consequential damage caused by a defect. Such liability to pay damages shall not apply if the supplier can prove that it was not his fault unless, under statutory provisions, he is liable without actual fault.

(12) If, owing to a defect in the series, it becomes necessary to exchange a whole series of contracted goods or our products that have been incorporated in the contracted goods, e.g. because error analysis in the individual case is uneconomical, not possible or not reasonable, the Seller shall reimburse the cost, even in respect of that part of the series in question that is technically without defect.

(13) The Seller shall undertake to supply the ordered Goods free and clear of any third party rights and to release Graphite Materials for the Goods to be supplied from third party claims.

Article 8
Recourse to Suppliers

(1) In addition to the claims for defects, we shall be entitled without limitation to our statutory claims to recourse within a supply chain (supplier’s recourse pursuant to section 478, 479 of the German Civil Code). We shall in particular be entitled to demand exactly the kind of subsequent performance (repair or replacement) from the Seller which we owe our customer in a given instance. Our statutory right of choice (section 439, par. 1 of the German Civil Code) shall not be limited by the above.

(2) Prior to accepting or complying with a claim for defects made by one of our customers (including the reimbursement of expenses pursuant to section 478 par. 3, 439 par. 2 of the German Civil Code), we shall inform the Seller accordingly and, after briefly explaining the matter, ask him for a statement. If no statement is received within a reasonable deadline and if a mutual solution is not found, the claim for defects actually granted by us shall be deemed owed to our customer; in this case, it shall rest with the Seller to prove the contrary.

(3) Our claims under recourse to suppliers shall also apply if the Goods have been further processed e.g. through inclusion in another product, prior to their sale to a customer, either by us or by one of our customers.

Article 9
Manufacturer’s Liability

(1) If the Seller is responsible for a product defect, he must indemnify us against claims by third parties to the extent that the cause is rooted in his area of control and organization and he is liable towards third parties. He shall carry all costs arising from the manufacturer’s liability, including possible recall costs. The Seller shall also be liable for damages caused by missing or incomplete safety measures.

(2) In the context of indemnification, the Seller must, pursuant to sections 683, 670 of the German Civil Code, reimburse expenses that result from or in relation to the claims of third parties, including recall actions undertaken by us. We shall inform the Seller – as far as possible and reasonable – of the content and scope of recall measures and give him the opportunity to reply. Further legal claims shall remain unaffected.

(3) The Seller shall undertake to conclude and maintain an adequate business and product liability insurance and to submit the corresponding insurance certificate to us.

Article 10
Limitation of Claims

(1) Unless a different arrangement is agreed upon in the following, the mutual claims of the contract parties shall be limited in accordance with statutory provisions.

(2) In deviation from section 438 par. 1 no. 3 of the German Civil Code, the general limitation period for claims for defects is three years, beginning with the transfer of risk. If an acceptance inspection has been agreed upon, the limitation period shall commence with acceptance. The limitation period of three years shall  also apply correspondingly to legal defects, whereby the statutory prescription period for claims for real surrender by third parties (section 438, par. 1 no. 1 of the German Civil Code) shall remain unaffected; claims for legal defects shall under no circumstances become statute-barred provided that the third party may continue to assert the right against us, particularly if it does not yet fall under the statute of limitations.

(3) The limitation periods of the law on sales including all preceding extensions shall apply to all contractual claims for defects to the extent provided by law. Insofar as we are also entitled to non-contractual indemnification claims for damages due to a defect, the normal legal limitation of claims shall apply (section 195, 199 of the German Civil Code), unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.

Article 11
Final Provisions

(1) The law of the Federal Republic of Germany shall apply to these GCP and to all legal relations between Graphite Materials and the Seller to the exclusion of international uniform law and especially the UN Convention on Contracts  for  the  International  Sale  of  Goods. The prerequisites for and effects of reservation of title shall be subject to the law of the country where the Goods are located when, according to such law, the choice of German law is prohibited or ineffective.

(2) If the Seller is a business person within the meaning of the German Commercial Code, a corporate body organized under public law or a legal entity under public law, the exclusive place of performance and jurisdiction – including internationally – for all disputes arising out of the contractual relationship shall be our place of business in Zirndorf. However, Graphite Materials shall also be entitled to initiate legal proceedings at the place of performance for the delivery obligation.