General terms of business for purchase of goods and services

2022, July 20

General terms of business for purchase of goods and services        

March 2022

§ 1 General

1.     The following general terms of business for purchase of goods and services apply to all orders (supplies and services) and legal relationships between Suedwolle Group GmbH (“Suedwolle Group“), its affiliated group companies and its suppliers.

2.     These general terms of business apply exclusively. In the event that any terms of business of our suppliers conflict with these present terms of business or with legal stipulations, such terms of business of our suppliers are hereby expressly contradicted, unless Suedwolle Group has agreed in writing on an individual basis to accept such conflicting terms of business of our supplier. The terms of business of our supplier also do not become part of the content of an agreement even though Suedwolle Group has accepted supplies or services in cognizance of such conflicting or supplementary terms of business.

3.     All agreements which are reached between Suedwolle Group and the supplier regarding the execution of these terms have to be recorded in writing.

4.     Suedwolle Group only accepts goods which quality corresponds at least with the most recent Oeko-Tex Standard 100 Class 1, is free of APEO and is not listed in the most recent REACH SVHC list.

5.     The supplier warrants that its deliveries and the processes, products and services provided by it are in accordance with the state of the art and comply with the applicable legal and regulatory requirements of the exporting country, the importing country and the country of destination (e.g. but not limited to REACH Regulation, SVHC Candidate List, California Proposition 65, CPSC Title 16, Swiss Chemical Risk Reduction Ordinance, EU Regulation (EU) No 528/2012…) – if known, as well as with the CSR of Suedwolle Group.

6.     If a GOTS, IVN Best, GRS, RWS or other certified order is placed, the supplier guarantees the compliance with this standard, especially the chemical requirements.

Moreover we ask our suppliers to commit themselves to the implementation of ZDHC MRSL and the elimination of hazardous chemicals in all chemical formulations used in manufacturing processes associated with the product processed, sold or delivered to Suedwolle Group.

§ 2 Offers

Our order shall be deemed accepted if not rejected in writing within two weeks by the supplier.

§ 3 Prices and scope of order

1.     The prices given in the Suedwolle Group order are maximum prices and will remain unchanged, even in the event of price increases that may take place in the interim. If, however, the supplier reduces his prices before the date of delivery, the supplier will reduce the price to be paid to a corresponding degree.

2.     The prices apply including freight, packaging and other additional costs free from the reception center named by us until delivery.

3.     We can only manage invoices if they contain all required details according to our demands.

4.     Suedwolle Group reserves the right to reduce or increase the scope of the order, as well as to request modifications in the mode of order execution, on the basis of new developments in the state of the engineering art, insofar as such developments represent an improvement for Suedwolle Group. If cost increases thereby arise, they have to be bared by Suedwolle Group. In the case of cost reductions, these will be subtracted from the value of the order. The supplier will inform Suedwolle Group on inquiry of such price changes before beginning execution of the changed services.

5.     In case of foreign contractual partners, such contractual partners will bear any costs involving customs, consulate fees, as well as any taxes, fees, rates, or duties arising from regulations valid outside the Federal Republic of Germany, as well as any expenses arising in conjunction therewith. In association herewith, the supplier also agrees to observe the regulations of the Federal Republic of Germany with regard to packing and packaging, weighing, customs, and import procedures. Any additional charges arising from such regulations are for the account of the supplier.

§ 4 Offset and transfer

1.     The contractual partner will not be entitled to offset with respect to our claims, unless the matter involves counterclaims that are not contested by Suedwolle Group, or that have been finally judged as non-appealable. The same will apply to the assertion of rights of retention, which result from the same contractual relationship.

2.     The contractual partner may transfer claims against us that are not monetary claims, to third parties only with our prior written consent.

§ 5 Delivery time and delivery quantity

1.     The delivery time stated in the order is binding. The supplier shall be in default, without the need of a reminder, if he does not meet the agreed delivery dates.

2.     The supplier shall be obliged to notify us in writing without delay if any circumstances arise or if the supplier becomes aware of any circumstances which indicate that the agreed time limits for delivery or performance cannot be met.

3.     In the event of delay in delivery Suedwolle Group shall be entitled to statutory claims.

4.     If the supplier is in default of delivery and/or manufacture of movable goods, or if he is in default with the installation and commissioning of immovable goods, the supplier will pay compensation of the default damage due to the delay of at least 0.2 % of the net contracted amount per calendar day of delay, but not more than a maximum limit of 5 % of the net contracted amount per case of delay. Suedwolle Group, however, reserves the right to assertion of claims, as verified by relevant evidence, for greater damages resulting from delay, as well as for additional damages. The reservation of contract penalty according to § 341 section 3 BGB may be asserted by us until final payment for the underlying contract relationship.

5.     Deliveries have to be made as agreed. Underdelivieries remain as the quantity to be delivered. Overdeliveries are only accepted up to one bale.

6.     In case of deliveries whose conditioned weight differs from the calculated weight, Suedwolle Group is entitled to decline acceptance of the whole delivery.

§ 6 Consignment and assumption of risk

1.     The supplier assumes responsibility for exact observance of the instructed consignment regulations.

2.     Suedwolle Group will be entitled to decline acceptance of consignments if sufficient and correct consignment documents are not made available to Suedwolle Group on the day of receipt of the shipment. The supplier will bear the costs involved in justified refusal of acceptance of consignments.

3.     Until turnover to or acceptance by Suedwolle Group, the contractual partner will bear the risk of accidental loss or accidental damage. If the consignment of the contractual partner is found to have recognizable shortcomings upon receipt by Suedwolle Group, the stipulations as set forth here in 6.2. will apply accordingly.

4.     All services will be understood to be provided on a carriage-paid basis to the delivery address as given, insofar as no agreement has been reached to the contrary on an individual basis.

5.     Insofar as nothing to the contrary has been agreed, the contractual partner will bear the costs for transport packing. Return of the packing material by Suedwolle Group will take place only if Suedwolle Group has expressly declared its willingness to this action in writing, or if the return is binding by law. In such cases, the contractual partner will bear the risk of accidental damage, loss, or destruction of the packing.

6.     Our contractual partner will be considered to have fulfilled his commitment to deliver only upon turnover or acceptance by Suedwolle Group or through Suedwolle Group, insofar as nothing to the contrary has been agreed in writing. Binding values for quantities and weights will be those values as measured at the respective plant of Suedwolle Group, insofar as the contractual partner cannot provide evidence of other values.

7.     In the event of plant operational disturbances, restrictions or other disturbances resulting from force majeure for which Suedwolle Group is not responsible, or for which Suedwolle Group is merely ordinarily or inadvertently negligent, Suedwolle Group will be released from the obligation to perform prompt acceptance of the ordered goods or services for the period of such disturbances, as well as for payment for the same, without a claim arising on the part of the contractual partner for restitution of damages.

8.     The stipulations in Paragraph 373 of the German Commercial Code (Handelsgesetzbuch, HGB) will not apply.

§ 7 Guarantee/ Requirements for the product

1.     The contractual partner ensures in compliance with applicable regulatory requirements that the goods of the agreement correspond to the characteristics as contractually agreed, comply with the contractually agreed quality and usability, comply with relevant DIN regulations, meet the legal and official stipulations applicable to their operation and use and that the delivered goods do not infringe upon the rights of third parties.

2.     For movable objects, raw materials and excipients, the obligation of Suedwolle Group to inspect received objects and to report deficiencies will begin only once the deliveries have been received. The obligation of Suedwolle Group to inspect the deliveries will be restricted to an inspection to determine whether delivered material coincides with the ordered goods, and to determination of apparent external damage to the goods. In case of apparent deficiencies, Suedwolle Group must perform such inspection and lodge a complaint within one month. In the case of hidden shortcomings, complaint must be lodged within one month after their discovery. For immovable goods (e.g. machines, systems) a formal acceptance is required. Hereto Suedwolle Group is obliged only if the immovable good is installed, set up and operational.

3.     We shall be entitled to the statutory defect claims without restriction; in any case we shall be entitled to ask the supplier for repair of the defect or for delivery of new goods as we so choose. Entitlement to damages, in particular entitlement to damages in lieu of performance, remains explicitly reserved.

4.     In particularly urgent cases Suedwolle Group is entitled to remove any defects ourselves at expense to the supplier.

5.     The guarantee term for deliveries of objects will be thirty six (36) months, beginning with turnover or acceptance at Suedwolle Group plant.

6.     The contractual partner ensures and guarantees that the contractual goods are produced in accordance and under compliance with the statutory stipulations. This includes the stipulations of both the manufacturing country and destination country. The contractual partner warrants furthermore that the contractual goods are delivered free of defects. This includes especially the accordance with samples regarding design, material quality, finish and other product specifications (e.g. labeling, packaging, etc.).

7.     The contractual partner ensures and guarantees that the contractual goods are produced in his production sites and that customs and the foreign economic, legal origin corresponds with the actual manufacturing country. The order will not be transferred or awarded to a subcontractor without prior consent of Suedwolle Group. In the event that contractual goods are received from third parties, the contractual partner gives his advance consent that Suedwolle Group is allowed to inspect this production site to examine production capacities, qualities and the manufacturing country.

8.     Suedwolle Group remains the right to examine contractual goods at any time (as well prior to dispatch) to secure a consistent high quality. However neither this inspection nor the examination include the acceptance of the goods.

9.     The products have to observe the fastness values, top limits and any other limits.

§ 8 Liability

1.     In accordance with applicable law the contractual partner will be liable for all damages for which he or his subcontractors are responsible. He will indemnify Suedwolle Group against any claims for damages by third parties, as well as against the consequences of instructions issued by regulatory government agencies etc., in all cases in which such claims are lodged in conjunction with damages caused by the contractual partner or his subcontractors.

2.     The contractual partner will immediately notify Suedwolle Group in the event that he or his subcontractors are responsible for any loss or damages.

3.     The contractual partner agrees to take out or provide a liability insurance and a product liability insurance in accordance with the stipulations contained herein under Subparagraphs 8.4. and 8.5., and to keep such insurances in force throughout the term of the contractual relationship and for a period of at least six months after termination of such relationship. If required proof can be requested by Suedwolle Group.

4.     The liability insurance will cover the liability of those persons whose services are employed by the contractual partner to conduct the relevant work, insofar as these persons may cause damages in the performance of their activities arising from the present agreement. Insofar as different amounts are not specified in the order, the minimum coverage of the liability insurance will be per occurrence giving rise to damages: EUR 500,000 for personal injury and property damage, and EUR 50,000 for pecuniary losses,

5.     The contractual partner agrees to maintain a product liability insurance with a coverage of EUR 5.000.0000 per personal injury or property damage (blanket).

6.     If Suedwolle Group is entitled to further damage claims beyond the insurance coverage, these remain unaffected.

7.     Suedwolle Group can be held liable only in cases of intentional culpability or gross negligence on the part of Suedwolle Group or its agents, or in case of breach of significant contractual obligations: which are such obligations whose fulfillment are basically essential and on whose reliable observance the contractual partners may depend. In the case of non-fulfillment of essential contractual obligations that do not arise from premeditation or gross negligence, liability will be limited to typical and predictable damages. The above stipulations do not apply to harm suffered to life, limb, or health. Liability based on product-liability regulations and legislation is not affected by these present stipulations.

§ 9 Patents and proprietary rights

1.     The contractual partner will ensure that the goods delivered by him do not infringe on patents, industrial property rights or copyrights of third parties.

2.     The contractual partner will hold Suedwolle Group harmless and free especially from any claims that may arise from patent, industrial property rights or copyrights infringements and will undertake at his expense our legal defense. In the event that any claims will be lodged against Suedwolle Group, Suedwolle Group will inform the contractual partner in writing without delay and will provide the contractual partner the required information at his expense.

§ 10 Right of utilization

1.     All material prepared for Suedwolle Group in conjunction with execution of the contract by the contracted party – i.e. written documents, samples, specifications, programming materials, information carriers or other documents – become property of Suedwolle Group at the point in time that they are created. Insofar as transfer of such material has not yet taken place, the contractual partner will store this material for Suedwolle Group at no cost. At the same time, and insofar as legally allowed, the contractual partner will assign to Suedwolle Group all rights resulting from the execution of the agreement, as well as all rights to the results arising therefrom.

2.     Suedwolle Group will be entitled to utilize the object of the agreement without restriction, also after termination of the agreement. The contractual partner agrees that Suedwolle Group may utilize the object of the agreement without copyright designation.

3.     The contractual partner will without delay notify Suedwolle Group completely in writing concerning any and all inventions or improvements (hereinafter referred to as “inventions”) that he or his employees may develop in the execution of an order awarded on the basis of this contract, or that he or his employees may have achieved for the first time in actual practice, regardless of whether these inventions are capable of being patented or not. For all these inventions, the contractual partner will emphasize in his notification especially those features that are new or unique according to his view.

4.     If so requested by Suedwolle Group, the contractual partner will assign the invention to Suedwolle Group. Suedwolle Group will become the owners of the rights arising from such inventions, regardless of whether or not patent applications have been made for them.

5.     The contractual partner will conclude required agreements with his employees to ensure that the stipulations in this paragraph will be observed.

§ 11 Materials provided

1.     Samples, specifications, documents, tools, and other objects that Suedwolle Group provides or purchases for the execution of a contract, remain property of Suedwolle Group, or will be transferred to Suedwolle Group. If tools are required for special parts, they may be used only for orders of Suedwolle Group. This also applies to tools that the contractual partner manufactures for Suedwolle Group at its expense. These tools also become property of Suedwolle Group. If these materials are not handed over to Suedwolle Group, the contractual partner will store the materials for Suedwolle Group at no cost.

2.     After termination of the order, the above-stated materials provided must be returned to Suedwolle Group, without explicit request.

3.     The contractual partner will be liable in accordance with Paragraph 8. for the loss of, damage to, or misuse of the objects named in Subparagraph 11.1. above, up until orderly and complete return of these items. The contractual partner will be obligated to sufficiently ensure these items against damage and loss, and to provide evidence of this insurance to Suedwolle Group on request.

4.     Complaints about the material that is provided by Suedwolle Group must be reported immediately to the freight carrier at the time that the material is taken over.

§ 12 Retention of title

1.     Suedwolle Group accepts only a simple retention of title by the Contractual partner. Property of the object of the agreement will pass to Suedwolle Group upon payment of the invoice. This also applies in cases in which Suedwolle Group has made justified deductions from the invoice payment in accordance with stipulations of the agreement. Suedwolle Group expressly will not accept any extended or expanded retention of title by the contractual partner.

2.     Material that is provided by Suedwolle Group for the execution of contracts remains property or Suedwolle Group. Immediately after acceptance of such material, the contractual partner will expressly mark this material as property of Suedwolle Group and will store it separately from similar or identical material. This material may be used only in connection with the planned production and may not be disposed in any further manner.

3.     If the contractual partner processes or modifies such material provided by Suedwolle Group or connects it with other objects, such processing, connection, or modification will take place for Suedwolle Group. Suedwolle Group will directly become owners of such material by virtue of its processing, modification or connection. In the event that legal stipulations render such an arrangement impossible, Suedwolle Group and the contractual partner agree that Suedwolle Group will become owners of the new objects at each point in time of processing, modification, or connection. The contractual partner will keep the new objects safe for Suedwolle Group with all the due diligence of a sound businessman, and will immediately mark them as our property. In the event of processing, modification, or connection with other objects not belonging to Suedwolle Group, ownership of the newly created objects will devolve to Suedwolle Group in the proportion that results from the ratio of the value of the processed, modified, or connected objects being retained, to the value of the newly created objects. In the event of mixture or connection in such a manner that the contractual partner’s objects are considered in the sense of primary objects, it will be considered as agreed that the contractual partner grants Suedwolle Group pro-rata ownership.

4.     The contractual partner agrees to notify Suedwolle Group without delay if third parties attempt or announce their attempt to gain access to goods belonging to Suedwolle Group – e.g. by garnishment or by any other form of restriction of our ownership.

5.     The contractual partner agrees to perform any required maintenance and inspection work on the material provided by Suedwolle Group, and to sufficiently ensure the objects turned over to him, and/or those later manufactured. Upon request, the contractual partner will provide evidence of such sufficient insurance.

§ 13 Confidentiality agreement

1.     The contractual partner will treat as confidential all commercial and technical information and documents that are not of general knowledge and that become known to him through our business relationship, and will use such material exclusively to perform the contracted deliveries and services. The contractual partner will ensure that all of his subcontractors likewise observe this stipulation. The confidentiality agreement will remain valid after the termination of any business relationships.

2.     In the event of providing project references or in publications, the contractual partner may name Suedwolle Group or its brands only if Suedwolle Group has provided prior consent.

§ 14 Data processing

1.     The contractual partner declares his irrevocable consent that that personal data that has been provided is handled and processed to the extent necessary for the performance of the contract in compliance with statutory provisions. The same applies for personal data received from Suedwolle Group.

§ 15 Payments

1.     Payments shall be made within 120 days strictly net if no other payment terms have been indicated.

2.     In the event of notification of defects, Suedwolle Group will be entitled to withhold an amount of three times the expected costs of reworking or of replacement delivery until complete, defect-free delivery or production has been made.

§ 16 Compulsory labour

In no event Suedwolle Group accepts contract goods which are produced through the use of compulsory labour.

§ 17 Child labour

In no event Suedwolle Group accepts contract goods which are produced through the use of child labour. Suedwolle Group is aware that the definition of child labour varies from country to country. Therefor Suedwolle Group bears on article 1 of the UN convention on the rights of the child which defines a child as „every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier“. If the federal state law permits the employment of persons under the age of 18, the employment shall be exercised in a form that not impairs the education and health as well as the physical, mental and social development of the employed persons.

§ 18 Environment protection

The supplier ensures and warrants that that statutory regulations of the manufacturing country regarding environment protection are complied.

The supplier guarantees that his deliveries comply with the regulation (EC) No. 1907 – 2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH). The supplier especially guarantees that the substances contained in the delivered products insofar as they are subject to the REACH regulation were properly preregistered or registered upon expiry of the transition period. Furthermore the supplier is obliged to furnish the safety data sheets according to the provisions of REACH or to submit the information according to Art. 32 REACH without further request from our part. To the extent that the supplier manufactures products within the meaning of Article 3 of REACH Regulation, the supplier shall be responsible for ensuring that it complies with its duty to pass on certain information in accordance with Article 33 of the REACH Regulation.

The supplier undertakes to duly and immediately inform the buyer of any changes affecting REACH compliance. In case of cancellation of blanket or single orders or proven violations of national or international REACH compliance regulations by the supplier, the supplier undertakes to exempt and hold the buyer harmless from any claim, liability, loss, damage, judgment and non-binding nature, irrespective of their legal ground, and to bear any and all harm, loss or damage arising to the buyer’s disadvantage in the event of infringement.

§ 19 Industrial safety and health protection

The supplier ensures and warrants that he fully meets all statutory requirements of the manufacturing country regarding industrial safety and health protection.

§ 20 Concluding stipulations

1.     Unless the order provides otherwise, place of performance is our registered office.

2.     Any disputes arising from or on the basis of the agreement, including disputes involving promissory notes, checks, or other documents, will be settled exclusively in the regular court of jurisdiction in Nuremberg, insofar as the contractual partner is a trader (Kaufmann) according to German law, or if the contractual partner can in attributable manner be assumed to be a trader (Kaufmann) in the sense of the German Commercial Code (HGB).

3.     This also applies if a company affiliated with Suedwolle Group acts on its own behalf.

4.     German law shall exclusively be applicable excluding the law regarding the international purchase of personal property (CISG), even if the supplier has its registered office abroad or a company affiliated with Suedwolle Group is contractual partner.

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