TERMS & CONDITIONS OF PURCHASE

1. Order

1.1 We order exclusively on the following terms and conditions of purchase. Other terms and conditions, in particular deviating, conflicting or supplementary terms and conditions of the contractual partner (hereinafter referred to as contractor or seller) shall not become part of the contract, unless cunova GmbH (hereinafter referred to as customer or cunova) confirms these terms and conditions in writing. This also applies if cunova does not explicitly contradict other conditions. If cunova accepts the subject of the order without explicit objection, it can in no case be derived from this that cunova has accepted deviating conditions of the contractor. Verbal agreements require the written confirmation of the customer. Individual agreements made with the vendor in individual cases have in any case priority over these terms and conditions of purchase. The written confirmation of cunova is decisive for the content of such agreements.

 1.2 The order documents may not be disclosed to third parties or used for advertising without prior consent of cunova.

 1.3 The fulfillment of the contract on the part of cunova is subject to the proviso that no obstacles due to national or international regulations of foreign trade law as well as no embargos and/or other sanctions prevent the fulfillment.

2. Acceptance of the order

2.1 After receipt of the written order, the contractor shall return it to the customer in a legally binding signed form (order confirmation) within 10 calendar days.

 2.2 A delayed acceptance is considered a new offer and requires acceptance by cunova.

3. Changes to the order

3.1 The Customer may request changes to the subject matter of the order after conclusion of the contract, provided they are reasonable for the Contractor. In the event of a change/addition to the order, the Contractor shall notify the Customer within 14 days of the additional or reduced prices and the effects on the deadline. The Contractor shall determine new prices on the calculation basis of the order. The Customer reserves the right to acknowledge the new prices as well as the effects in connection with changes to the fixed dates. If the Contractor does not provide information on prices and deadlines within the period set in accordance with sentence 2, the change shall be deemed to have been accepted by the Contractor at the previous contractual conditions, provided that the additional or reduced costs are only minor deviations.

 3.2 Coordination meetings during the execution of the order between the suppliers working on this order shall be recorded and submitted to the customer. Any intended changes to the technical concept of the Customer - even if no additional or reduced costs arise - must be indicated and in any case bindingly agreed with the Customer. The changes may not be carried out without the written consent of the client.

4. Scope of delivery and design

4.1 Mode of delivery

The ordered items are to be delivered to the place of receipt specified by cunova in the order

Furthermore applies:

8. Force majeure

8.1 Unforeseeable and uncontrollable events, such as natural disasters, acts of war and blockades, which make the timely performance of the contractual obligations wholly or partially impossible or substantially more difficult, shall release from the performance of the contractual obligations for the duration and to the extent of their effects. The contractual partners undertake to provide the necessary information in each case within the bounds of what is reasonable and to adjust their obligations accordingly in good faith.

In any case, the Contractor shall use its best efforts to eliminate the disruptions that hinder the execution. If it is not possible for the Contractor to execute the order for a continuous period of 2 months due to such events, the Customer may withdraw from the contract in whole or in part without being obliged to pay damages.

9. Deadline tracking, testing, inspections

9.1 The Customer or its representatives and, if stipulated in an individual contract between the contracting parties, also the Customer's customers or their representatives shall be entitled to inspect the Contractor's premises as well as the Contractor's subcontractors with regard to the progress of production and compliance with contractually stipulated requirements regarding the quality of the Ordered Items. This shall apply to the condition of the equipment and to the materials used for the manufacture of the Ordered Items as well as to the completeness and correctness of the contractual documentation. In order to carry out inspections and workshop tests, the Contractor shall provide, at its own expense, auxiliary services, labor, materials, electricity, fuel, media, apparatus, instruments, etc., so that an effective test can be carried out. In the event of failure to conduct a positive inspection and/or failure to conduct a desired source review due to Contractor's fault, all costs resulting from a repeat (e.g., labor, travel and material costs) shall be borne by Contractor.

10. Shipping processing

The shipment processing has to be carried out exclusively according to the specifications of the customer.

11. Accounting

The Contractor shall issue a final invoice after fulfillment of its contractual obligations following the acceptance stipulated in Section 13.1. Subject to individual contractual provisions, partial invoices may also be issued which are replaced in total by a final invoice.

12. Assignment, set-off

12.1 An assignment of claims against the customer is only permitted if the customer has given his prior written consent.

12.2 cunova is entitled to rights of set-off and retention as well as to the defense of non-performance of the contract to the extent provided by law. In particular, cunova is entitled to withhold due payments as long as cunova is still entitled to claims from incomplete or defective services against the contractor. The contractor has a right of set-off or retention only because of legally binding or undisputed counterclaims. The customer is entitled to set-off with claims, which he is entitled to against a company, in which the contractor has a direct or indirect share of at least 50%.

13. Acceptance, approvals

13.1 The acceptance procedure shall be governed by the "Conditions for Acceptance" set out in the order letters. It can be applied for at the earliest after successful commissioning of the ordered item.

13.2 Acceptance of the subject matter of the order shall not constitute a waiver by the Customer of any rights to which it is entitled, in particular warranty claims, claims for damages arising from default, contractual penalties, etc. Section 341 (3) of the German Civil Code (BGB) shall not apply.

13.3 The Customer shall be entitled to take the ordered item into use on a trial basis - after the end of commissioning and before acceptance - for test purposes under production conditions. The same shall apply mutatis mutandis in the event of damage minimization at the Customer in the event that the ordered item cannot yet be accepted for reasons attributable to the Contractor. This does not mean acceptance or partial acceptance and has no effect on the period or scope of the Contractor's warranty obligation.

14. Transfer of ownership and risk

14.1 Ownership shall pass to the Client at the time of handover. The transfer of ownership does not result in acceptance.

14.2 Unless otherwise agreed, the risk shall pass upon acceptance.

15. Collateral

In the case of agreed payments prior to delivery and, if stipulated in individual contracts, to secure warranty obligations, the Contractor shall provide directly enforceable and unconditional guarantees of a major German bank in favor of the Customer, which shall exclude the rights of the guarantor under Sections 768, 770 of the German Civil Code (BGB) and the other content of which shall be agreed with the Customer. The costs for the provision of guarantees shall be borne by the Contractor.

16. Warranty claims

16.1 The statutory provisions shall apply to the rights in the event of material defects and defects of title of the deliveries and services (including wrong delivery and short delivery as well as improper assembly, defective assembly, operating or instruction manual) and in the event of other breaches of duty by the Contractor, unless otherwise provided below.

16.2 In accordance with the statutory provisions, the Contractor shall be liable in particular for ensuring that the Order Objects have the agreed quality at the time of transfer of risk to the Customer. In any case, those product descriptions which - in particular by designation or reference in the order - are the subject matter of the respective contract or have been included in the contract in the same way as these terms and conditions shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from KME or from the contractor.

16.3 If the ordered items are not of the agreed quality or if defects occur within the warranty period according to clause 16.5, the ordering party shall be entitled to demand subsequent performance from the contractor without delay, without prejudice to other rights. Subsequent performance shall be carried out for the Customer - packed free place of use, transport at the Customer's discretion - including disassembly and new assembly.

16.4 If the object of the order does not meet the requirements of the order even after subsequent performance has been effected or if the Contractor does not comply with the obligation of subsequent performance without undue delay or if there is a particularly urgent case (= in particular imminent production standstill at the Customer's premises and resulting non-compliance with delivery dates), the Customer shall be entitled, after having informed the Contractor in writing, to carry out the necessary expenses itself or to have them carried out at the Contractor's expense and to demand reimbursement of the necessary expenses. This shall not affect the Customer's right to rescind the contract, reduce the price or claim damages.

In the event of withdrawal, the goods shall be returned to the Contractor at the place of use. The Customer shall receive its services back at the Customer's place of business.

16.5 The warranty period shall be 24 months after delivery or acceptance of the object of the order (whichever is relevant). For construction work, steel construction and documentation, however, the warranty period shall be 5 years. The statutory provisions shall apply to the limitation period. For replaced parts, the warranty period is 24 months after installation, but ends at the earliest with the expiry of the warranty period of the ordered item.

The warranty period for spare parts, which are specially marked or identified as such in individual contracts, shall be 24 months from the date of installation, but shall end at the earliest with the expiry of the warranty period of the ordered item.

17. Heavy metal ban

The contractor undertakes to deliver to cunova only such products that comply with the EU Directive 2000/53/EC of 18.09.2000, taking into account the decision of the European Commission of 27.06.2002 (2002/525/EC). Insofar as the contractor delivers products in which substances are processed that fall under the aforementioned EU Directive, the contractor undertakes to expressly draw KME's attention to these substances.

18. REACH Regulation

The contractor undertakes towards cunova to fulfill his obligations according to the provisions of the Regulations (EC) No. 1907/2006 on Registration, Evaluation, Authorization and Restriction of Chemicals. In particular, the contractor undertakes to provide cunova with the delivery of a safety data sheet in compliance with the provisions of Regulation (EC) No. 1907/2006.

In addition, the contractor undertakes to provide cunova, without being asked, with the information required according to Art. 32 and Art. 33 of this Regulation.

The contractor is obliged to explicitly point out if he delivers a substance that has not been registered contrary to the obligation according to Art. 6 of the Regulation (EC) No. 1907/2006. The same shall apply if he supplies a preparation containing one or more substances which has/have not been registered contrary to the obligation under Art. 6 of Regulation (EC) No. 1907/2006. If the contractor delivers one or more substances included in Annex XIV of the Regulation (EC) No. 1907/2006 or a preparation containing such a substance(s), he shall explicitly inform cunova in writing of the reasons in the sense of Art. 56 Regulation (EC) No. 1907/2006, which allow the placing on the market of the substance.

If the contractor advises against the use of a substance, he has to do this in writing in a highlighted way. If cunova is obliged to prepare a chemical safety report due to Art. 37 VO (EG) No. 1907/2006 and therefore requires information from the contractor regarding delivered substances, the contractor is obliged to provide the requested information within a period of 30 days after receipt of a corresponding request.

19. Environmental and energy management

The Client has introduced an environmental and energy management system. Accordingly, the Contractor is obligated to comply with the respective current EC/EU directives, national laws and standards relating to environmental protection and energy efficiency in its services and deliveries for the Client.

20. Provisions on export control and foreign trade data

The contractor has to comply with all requirements of the applicable national and international customs and foreign trade law. He shall provide cunova with all information and data required by cunova for compliance with foreign trade law for export, import and re-export in writing at the latest two weeks after order and immediately in case of changes, in particular:

    all applicable export list numbers including the Export Control Classification Number according to the U.S. Commerce Control List (ECCN);
    the commodity code number according to the current commodity classification of foreign trade statistics and the HS (Harmonized System) code; and
    country of origin (non-preferential origin) and, if required by cunova, supplier declarations on preferential origin (for European suppliers) or certificates on preference (for non-European suppliers).

If the contractor violates his above obligations, the contractor shall bear all expenses and damages incurred by cunova as a result, unless the contractor is not responsible for the violation of obligations.

21. Provisions / Third-party access

Material provided by cunova will be kept separate from other materials by the contractor and marked as cunova property with the diligence of a prudent businessman. The contractor is obliged to prevent access of third parties and to inform cunova immediately about changes in quantity and condition of the provided materials.

22. Property rights

22.1 The Contractor shall be liable for ensuring that patents or other industrial property rights of third parties are not infringed by the application, use or deployment of the subject matter of the order.

22.2 If the Contractor's own property rights are affected, the Contractor shall grant the Customer the irrevocable right to unrestricted use of these property rights in connection with the Ordering Item at the same time as the Ordering Item is delivered. The right of use is compensated with the order price.

23. Secrecy, intellectual property

23.1 All drawings, data, systems, operating procedures, figures, illustrations, etc., of whatever nature and origin, which are handed over to the Contractor or come to the Contractor's knowledge in connection with the execution of the Order shall be treated as strictly confidential and shall remain the property of the Customer.

23.2 All drawings and documents prepared by the Contractor in connection with the Order shall be subject to the Customer's unrestricted right of ownership and disposal for the Customer's own use.

23.3 The examination and approval of drawings of the Contractor shall not under any circumstances give rise to any claims against the Customer, in particular also no joint responsibility claims. Any changes made by the Customer shall be checked for technical feasibility and shall not release the Contractor from its obligation to guarantee the correctness of the dimensions, design, calculation and function of the ordered item.

24. Publications

Contractor shall not make or cause to be made any publications in connection with any purchase order or overall project without the prior, written consent of Customer.

25. Place of performance

The place of performance for deliveries shall be the place to which the object of the order is to be sent according to the Customer's instructions (receiving point at the place of receipt). This shall also apply to any subsequent deliveries. The place of performance for documentation deliveries and for payment shall be the registered office of the Customer.

26. Partial effectiveness, gaps

If for any reason one or more individual provisions of these Terms and Conditions or of an order are or become invalid or ineffective, the validity of the remaining provisions shall not be affected thereby. In such a case, the contracting parties shall replace the invalid/invalid provisions with legally valid ones that come as close as possible to the meaning and purpose of the invalid provisions, whereby the intended use and/or purpose of the subject matter of the order may not be cancelled or diminished as a result.

27. Place of jurisdiction, applicable law

The contractual relationship between the Contractor and the Client shall be governed by the laws of the Federal Republic of Germany with the exception of its conflict of law rules (IPR). The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall also not apply. The place of jurisdiction for transactions with fully qualified merchants and legal entities under public law shall be the registered office of the Customer in Osnabrück. The Customer shall also be entitled to bring an action at the Contractor's registered office.

cunova GmbH, March 2023