General procurement terms and conditions

Brumberg Leuchten GmbH & Co. KG

1.    General terms - Scope
1.1    Our Standard Purchasing Terms (“SPT”) shall apply exclusively; we will not recognise any terms and conditions of the supplier which conflict with or de-viate from our Standard Purchasing Terms unless we have expressly agreed in writing that they should apply. Any other and deviating standard business or delivery terms of the supplier are hereby rejected and are deemed to have been waived, even if they are not expressly rejected again upon conclusion of the contract or at a later point in time. Our Standard Purchasing Terms shall also apply if we unconditionally accept the supplier’s delivery with knowledge that the supplier’s terms and conditions conflict with or deviate from our Standard Purchasing Terms.
1.2    Our employees are not authorized to agree to the applicability of terms and conditions other than these SPT with regard to delivery notes, delivery re-ceipts, etc. These SPT are deemed to have been recognised upon the first partial delivery of the goods (merchandise, rights etc. in the comprehensive sense) carried out by the supplier at the latest and apply to later orders even if no special reference is made to them in any subsequent orders.
1.3    All agreements made between us and the supplier concerning performance of this contract must be set out in writing in this contract. Our SPT shall also apply to future transactions with the supplier.
1.4    Our Standard Purchasing Terms shall only apply to entrepreneurs in accord-ance with section 310 (1) German Civil Code (“BGB”).
1.5    To the extent that declarations under these Standard Purchasing Terms have to be made in writing, this may be satisfied base the text form according to section 126b German Civil Code.

2.    Offer - Offer documents
2.1    Offers from the supplier are non-binding and free of charge for us.
2.2    Only orders placed by us in writing are legally binding. Verbal agreements are valid if they are confirmed by us in writing.
2.3    Orders must be confirmed in writing by the supplier through its signature without undue delay. We reserve the right to cancel an order if we do not re-ceive confirmation within 14 days.
2.4    When submitting an offer, the supplier must adhere to the request for a quota-tion or the invitation to tender with regard to quantity, quality and performance and, in the event of a deviation, shall expressly refer to any such deviations in writing. Otherwise, the supplier forfeits any claim to additional remuneration. The supplier is bound by its offer for one month. If there are differences in the quantity, dimensions or weight of the delivered goods, the figures determined by our incoming goods inspection shall be decisive. We reserve the right to acknowledge excess or short deliveries.
2.5    We reserve ownership rights and copyrights to illustrations, drawings, calcu-lations and other documents; they may not be made accessible to third par-ties without our express written consent. They are to be used exclusively for production on the basis of our order; after completion of the order they are to be returned to us on a voluntary basis. They may not be disclosed to third parties; in this respect the provisions of Sections 10 are applicable on a sup-plementary basis.

3.    Prices - Terms of payment - Invoicing
3.1    The price stated in the order is binding and includes all ancillary costs. In the absence of a written agreement to the contrary, price includes delivery “car-riage paid”, i.e. carriage paid to our receiving department or other expressly agreed place of use, including packaging, insurance, etc. Return of the pack-aging requires a separate agreement. If otherwise agreed, freight and pack-aging costs are to be charged by supplier and stated separately in the invoic-es. Changes due to subsequent increases in any costs, taxes, etc. are not permitted. If the price is not fixed when the order is placed, the price must be disclosed to us no later than in the order confirmation. If we do not object within ten working days, this price shall be deemed to have been approved by us. Any agreement concerning the place of performance shall not be af-fected by the type of pricing.
3.2    Statutory value added tax is not included in the price. Value added tax must be stated separately in the supplier’s invoices.
3.3    We can only process invoices if they state the order number shown in our or-der in accordance with the specifications in our order; the supplier is respon-sible for all consequences arising from non-compliance with this obligation. The invoice must be submitted separately immediately after delivery, taking into account applicable legal and administrative requirements. Monthly in-voices must be sent no later than the 5th of the month following delivery. The provisions of section 286 (3) German Civil Code, according to which default occurs automatically 30 days after due date and receipt of an invoice, is waived.
3.4    In any case, the due date shall only be after receipt of a proper invoice that separately states VAT. Unless otherwise agreed in writing, we will then pay the purchase price within 14 days less 3% discount, within 30 days less 2% discount, or within 60 days net, calculated from the day of delivery and corre-sponding receipt of invoice. If the invoice is received by us prior to delivery, the date of receipt of the delivery shall be relevant for calculating the discount period.
3.5    We are entitled to set-off and retention rights to the extent provided by law. Furthermore, we may exercise a right of set-off in relation to all claims to which we, the entire Brumberg Group or domestic companies in which we di-rectly or indirectly hold a majority interest, are entitled in relation to the sup-plier.
3.6    The supplier may only assign its claims to third parties, or have them collect-ed by third parties, with our written consent.

4.    Delivery time - Performance
4.1    Every order is to be confirmed without undue delay and must include an indi-cation of the binding delivery time. The delivery time stated in the order is binding. The delivery time begins upon the date of receipt of the order by the supplier. After expiry of the delivery period, the supplier shall be in default without the need for a reminder. Receipt of the goods at the unloading point designated by us, or goods acceptance, shall be decisive for compliance with the delivery dates or delivery periods.
4.2    In the event of a delay in delivery, we shall be entitled to demand a surcharge of 1% of the shipment value per week or part thereof, but no more than 5%, as lump-sum damages caused by the delay; we reserve the right to assert fur-ther claims. The supplier is free to prove to us that the delay concerned caused no damages or significance lower damages. If the supplier is in de-fault of delivery, we shall be entitled to demand damages in lieu of perfor-mance and rescission after the expiry of a reasonable period without results. If we demand compensation for damages, the supplier has the right to prove to that it was not responsible for the breach.
4.3    The supplier is obliged to provide us immediate written notice in the event circumstances occur or become apparent that could prevent compliance with the binding delivery times; this includes force majeure events. In such cases, we shall be entitled either to postpone the acceptance period or, if our inter-est in the delivery is substantially reduced, to revoke the contract in whole or in part and, if applicable, to claim damages. This does not give rise to any claims on the part of the supplier. In particular, the supplier is not entitled to revoke the contract or increase prices at its own discretion in the case of force majeure or similar events.
4.4    If initial samples/release samples are requested from us, the supplier may only begin series production after written approval of the sample and release of the series.
4.5    We may subsequently demand changes in the quality of the delivery or ser-vice within the scope of the supplier’s technical capabilities. Technical changes and their effects on prices, delivery times or other conditions must be made in writing in accordance with Section 2 of these Standard Purchas-ing Terms.
4.6    In the event of urgent operational concerns of our company, e.g. as a result of force majeure event, fire, flooding, the discontinuation of a product, etc., we shall be entitled to revoke the contract at no further cost against payment of compensation amounting to 5% of the agreed price of the undelivered goods from the respective order. The supplier shall provide immediate notice should any delivery be subject to any export restrictions.
4.7    We shall not be in default of acceptance in the event that acceptance is pre-vented by a force majeure event.

5.    Shipment - Passage of risk - Documents
5.1    Unless otherwise agreed in writing, delivery shall be made to the shipping address/place of use specified by us on the order. This is also the place of performance.
5.2    Risk shall not pass to us before receipt of the goods. The supplier is liable for all damage, demurrage, etc. Acceptance of the delivery does not constitute approval of the goods.
5.3    The supplier is obliged to enclose a delivery note with each consignment and to state our order number and part number exactly on all shipping documents and delivery notes; if it fails to do so, it shall be liable for any resulting delays.
5.4    The supplier shall immediately provide us with proofs of origin containing all necessary information and duly signed, if we so request. The same shall ap-ply mutatis mutandis to VAT supporting documents related to foreign and in-tra-Community deliveries.
5.5    Partial deliveries are only permissible on the basis of a written agreement; otherwise we may refuse acceptance. In all cases, partial deliveries are not to be regarded as independent transactions and must be marked in writing.
5.6    The supplier is responsible for transport insurance.

6.    Quality - Investigation of defects - Liability for defects
6.1    The supplier expressly warrants the use of the best, appropriate materials, proper assembly, correct and proper execution, for power requirements, per-formance, efficiency as well as the unconditional conformity of the goods sold with the samples, specifications and descriptions supplied by it. The goods must comply with the directives, ordinances and regulations, the RoHS, ap-plicable DIN standards and requirements of property insurers as well as pos-sess the CE conformity certificate. The supplier must obtain our written con-sent if deviations from these regulations are necessary in specific cases. The supplier’s liability shall not be limited thereby. The supplier must inform us immediately in writing if it has doubts about the manner of execution.
6.2    We shall notify the supplier of any obvious defects in the delivery, insofar as such defects are detected in the ordinary course of business. We are not obliged to inspect incoming goods. In any event, notice of defects is timely if dispatched within a period of five working days after expiry of the notice peri-od stipulated in section 377 German Commercial Code (“HGB”). In the case of goods for which the defect can only be determined during processing, no-tice of such a defect may still be made within one week of discovery of the re-spective defect. The supplier waives the right of late notice of defects to such an extent. In all cases in which an error rate has been agreed with the suppli-er and such rate is exceeded, we shall be entitled to return the entire con-signment at the supplier’s expense and risk. If there is no separate agree-ment on an error rate, we shall be entitled to do so if the error rate of a ship-ment exceeds 1% of the respective shipment quantity.
6.3    If the supply of goods or services has been made in the condition stipulated in the contract or if any defects have been remedied, we shall accept the re-spective supply. If a trial run is planned, acceptance shall be granted after a defect-free trial run by means of a joint acceptance protocol. Repeat tests by us on the basis of defects discovered in previous tests shall be to the detri-ment of the supplier.
6.4    We are entitled to all statutory warranty rights without limitation. In all cases, we are entitled to demand that the supplier effect a cure or delivery a new ob-ject at our election. The supplier is obliged to bear all expenses required for the purpose of remedying the defect or delivering a replacement. We may al-so revoke or terminate the contract if (provisional) insolvency proceedings are instituted against the supplier’s assets or if the supplier suspends pay-ments on a more than temporary basis.
6.5    We expressly reserve the right to claim damages, including without limitation damages for non-performance; in particular, the supplier shall compensate us for any damages, including consequential damages, arising from the ex-istence of a defect. We shall be entitled to remedy the defects ourselves at the supplier’s expense if an attempt at cure has failed twice, if there is a risk of delay or if there is a particular degree of urgency. Payment of the purchase price, or parts thereof, prior to the discovery of defects, as well as the ac-ceptance or approval of documents submitted (drawings, drafts, models, samples, samples, including intermediate products etc.) shall not constitute an acknowledgement that the goods have been delivered free of defects and in accordance with the contract and, to this extent, shall not constitute a waiv-er of claims to remedy defects.
6.6    For supplied parts that could not remain in operation due to defects, an open notice period shall be extended by the duration of the interruption in opera-tions.
6.7    Unless the mandatory provisions of section 478, 479 German Civil Code ap-ply, our warranty claims expire within 36 months. However, the period begins only with complete and delivery of the goods free of defects. Notices of de-fects can be made at any time up to the expiry of the limitation period, where-by the first notice of defects suspends the limitation period up to the resolution of each notice of defect, as long as it is not a matter of goodwill on the part of the supplier or entirely minor defects. We shall be entitled, at the supplier’s expense, to remedy the defect or procure a replacement ourselves if there is imminent danger or if the supplier is in default of fulfilling its obligation to remedy the defect.
6.8    Goods purchased on the basis of a brochure are purchased on a trial basis and may be returned to the supplier within eight days of receipt if they do not comply with the purpose of the contract as stated by us; this does not give rise to any claims on the part of the supplier.

7.    Product liability - Indemnity - Liability insurance
7.1    The supplier shall indemnify us against indirect claims by third parties which asserted against us on the basis of poor performance by the supplier. The supplier shall be entitled to prove contributory cause or contributory fault on our part. The limitation period for claims under this Section shall be four years from the date when the grounds for the claim became known or should have become known, but not more than 15 years from the date of complete deliv-ery.
7.2    To the extent it is responsible for a product defect, the supplier is obliged to indemnify us upon first request from third-party claims for damages, in par-ticular for product liability claims, to the extent that the cause for any such claims lies within the sphere of its responsibility and control.
7.3    Within the scope of its liability for loss events pursuant to the foregoing Sec-tion 7.2, the supplier is also obliged to reimburse any expenses pursuant to sections 683, 670 German Civil Code or pursuant to sections 830, 840, 426 German Civil Code that result from or are related to any recall action we un-dertake. We will inform the supplier upon request about the contents and ex-tent of the recall measures to be carried out, to the extent this is possible and reasonable, and provide it the opportunity to provide a response. This is without prejudice to any other statutory claims.
7.4    The supplier undertakes to maintain product liability insurance with a lump-sum insured amount € 10 million per personal injury/property damage. We must be provided verification upon request. This is without prejudice to assert any additional claims to compensation for damages to which we are entitled.
7.5    Any checks we perform ourselves do not relieve the supplier of the obligation to make deliveries free of defects.

8.    Third-party property rights
8.1    The supplier warrants that no third-party rights, in particular patent, design, trademark and copyright rights, are infringed within the Federal Republic of Germany in connection with its delivery. The supplier also warrants that the delivered goods comply with all legal regulations and official requirements, insofar as it was aware of the infringement or should have been aware of it as a specialist enterprise.
8.2    If a third party asserts a claim against us for this reason, the supplier shall be obliged to indemnify us against these claims upon our first written request; the supplier’s obligation to indemnify us shall also apply in the event of the assertion of claims for damages due to infringement of public law provisions.
8.3    The indemnity obligation of the supplier shall relate to all necessary expens-es incurred by us from or in connection with third-party claims towards us.
8.4    The limitations period is 36 months from the passage of risk.
8.5    We shall be entitled, at the supplier's expense, to obtain from the owner of the industrial property rights all necessary licenses for the delivery, commission-ing, use, resale, etc. of the delivery item if the resulting costs are considerably lower than the damages incurred by both parties in the event of rescission.

9.    Reservation of title - Provision - Tools - Rights
9.1    Goods delivered by the supplier shall become our property immediately and without restriction upon delivery and acceptance. The same applies to docu-ments delivered by the supplier. Upon delivery, the supplier declares that it is fully entitled to dispose of the goods and that no third party rights exist. This must be expressly stated if it is not the case. We shall be entitled to a right of retention in such cases.
9.2    If we provide parts to the supplier, we reserve the right of ownership. Pro-cessing or transformation by the supplier shall be carried out for us. We ac-quire a co-ownership right in the new object in relation to the value of our ob-ject (purchase price plus VAT) to the other modified items at the time of pro-cessing in cases where our goods subject to reserve title were processed with other objects that are not our property.
9.3    If the object provided by us is inseparably mixed with other objects not be-longing to us, we shall acquire a co-ownership right in the new object in the ratio of the value of the object subject to reservation of title (purchase price plus VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the supplier’s item is to be regarded as the main ob-ject, it shall be deemed agreed that the supplier transfers co-ownership to us pro rata; the supplier maintain such sole ownership or co-ownership rights for our benefit.
9.4    We reserve ownership of tools; the supplier is further obliged to use the tools exclusively for the manufacture of the goods ordered by us. The supplier is obliged to insure tools belonging to us against fire, water and theft at their re-placement value at its own expense. At the same time, the supplier hereby assigns to us all claims for compensation under any such policy insurance; we hereby accept this assignment. The supplier is obliged to perform any necessary maintenance and inspection work on our tools as well as all maintenance and repair work at its own expense and on a timely basis. The supplier shall notify us of any malfunctions without undue delay; its culpable failure to do so is without prejudice to any claims for damages.
9.5    Insofar as the security rights to which we are entitled pursuant to Section 9.2 and/or 9.3 exceed the purchase price of all unpaid goods subject to reserva-tion of title for by more than 10%, we shall be obliged to release the security rights at our discretion at the request of the supplier.
9.6    We reserve all rights to software (including source code), drawings, products or data of various kinds manufactured in accordance with our specifications, as well as to processes and inventions developed by us. Copies may only be made to the extent that this is indispensable for the manufacture of goods or-dered by us. The supplier undertakes to return the documents at any time at our request, and to destroy any copies it has made. The supplier has no right of retention in this respect.
2.5    We reserve ownership rights and copyrights to illustrations, drawings, calcu-lations and other documents provided by us; they may not be made accessi-ble to third parties without our express written consent. They are to be used exclusively for production on the basis of our order; after completion of the order they are to be returned to us on a voluntary basis. They may not be dis-closed to third parties.

10.    Confidentiality
10.1    The supplier is obliged to keep all illustrations, technical and commercial documents, drawings, sketches, calculations and other documents and in-formation received strictly confidential and not to use them for its own compet-itive purposes unless we expressly consent to this in writing. They may be disclosed to third parties only with our express written consent. For each case of infringement of this obligation, the supplier shall pay us a contractual pen-alty according to commercial practices of at least 10% of the agreed price, not exceeding the sum which the supplier has otherwise obtained through the in-fringement if this exceeds the minimum amount. We shall determine the amount of the contractual penalty in each individual case at our reasonable discretion. This does not preclude the assertion of claims for damages.
10.2    The non-disclosure obligation continues to apply beyond the term of this con-tract; it expires if and to the extent any production know-how contained in such illustrations, drawings, calculations and other documents becomes common knowledge.
10.3    The supplier shall treat the conclusion of the contract as confidential. It may use us as a reference in dealings with third parties with our written consent.

11.    Place of Performance - Jurisdiction - Choice of Law - Severability Clause
11.1    If the supplier is a merchant, the place of jurisdiction for all disputes arising under or in connection with this contract shall be Sundern (Sauerland) to the exclusion of any other place of jurisdiction; however, we shall also be entitled to sue the supplier at its general place of jurisdiction.
11.2    The laws of the Federal Republic of Germany shall apply subject to the ex-clusion of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”).
11.3    Unless otherwise stated in the order confirmation, the place of performance for performance and consideration, including payments, shall be the location of our head office in Sundern (Sauerland).
11.4    These Standard Purchasing Terms shall remain valid even if individual clauses prove to be invalid. Any such invalid clause shall be amended or re-interpreted by the parties so as to achieve the commercial purpose intended by the invalid provision to the greatest extent possible. The same rule applies if, during performance of the contract, a gap that requires supplementation should be discovered. If any respective invalidity is based on a performance or time determination, it shall be replaced by the legally permissible measure. Should any provision of these Standard Purchasing Terms be invalid with re-gard to mandatory foreign law, the supplier shall, upon request, agree to any required contract supplements and make any required declarations to third parties or authorities which ensure the validity of the affected provision and, if this is not possible, its economic substance under applicable foreign law.
11.5    The German version of the Standard Purchasing Terms is the authoritative version. It takes precedence over English translations and has been pre-pared in accordance with German laws and judicial interpretations.

Last updated: April 2019