General Conditions of Purchase

1. the customer’s terms and conditions of purchase shall apply exclusively. The Customer does not recognise any deviating conditions of the Contractor unless the Customer expressly agrees to their validity in writing.

2. the terms and conditions of purchase shall also apply exclusively if the Customer accepts or pays for the supplies/services in the knowledge that the Contractor’s terms and conditions conflict with or deviate from these.

I. Orders

1. orders are only binding if they are placed in writing by the client. Oral agreements – including subsequent amendments and supplements to these terms and conditions of purchase – require written confirmation by the customer to be effective.

2. cost estimates shall be a binding basis for any orders resulting therefrom for the period of their validity. They are not to be remunerated, unless expressly agreed otherwise.

3. documents used by the contractor in business transactions with the client must at least Order number, supplier number, receiving office, complete article text/object description, quantities and units of measure as well as VAT ID number (in case of import from the EU).

II. prices

The prices are fixed prices. They include everything that the contractor has to effect in order to fulfil his delivery/service obligation.

III. scope of delivery/performance; ownership; rights of use

1. the scope of delivery/service includes, among other things, that the contractor transfers to the customer the ownership of all technical documents (also for subcontractors) as well as of other documents required for new production, maintenance and operation. These technical documents must be written in German and in accordance with the international standard system SI – the Supplier shall grant to the Purchaser the non-exclusive and irrevocable right to use all goods/services which are capable of being protected by industrial property rights in all known and unknown types of use, without any limitation as to territory, time or content; [in particular, Customer shall be entitled without limitation to reproduce, process, distribute the supplies/services in unmodified and modified form, reproduce them publicly by wire or wireless means, and transfer all contractually granted rights of use to third parties against payment or free of charge] – Contractor shall grant Customer the right to use such supplies/services, which he creates individually for the client, grants exclusive rights of use and exploitation to the extent described above – the contractor guarantees that he strictly observes the regulations of the German Employee Invention Act and makes use of the respective inventions in due time. This shall also apply insofar as the Contractor does not employ its own employees/workers, but has employed third parties within the scope of a permissible employee leasing – the Customer has the unrestricted authority to carry out repairs of the received delivery/service and changes thereto itself or have them carried out by third parties, furthermore to produce spare parts itself or have them produced by third parties

2. if the agreed scope of delivery/service is to be deviated from, the contractor shall only be entitled to additional claims or schedule changes if a corresponding written supplementary agreement has been made with the customer prior to execution.

3. the quantities ordered are binding. In case of excess deliveries/services, the Customer is entitled to reject them at the expense and cost of the Contractor.

IV. Quality

The contractor shall set up and maintain a documented quality assurance system that is suitable in type and scope and corresponds to the latest state of the art. He shall prepare records, in particular of his quality inspections, and make them available to the Customer on request. The Contractor hereby consents to quality audits to assess the effectiveness of his quality assurance system by the Purchaser or any person authorized by the Purchaser.

V. Delivery and performance deadlines/deadlines for delivery and performance

1. agreed deadlines are binding. If agreed deadlines are not met, the statutory provisions shall apply. A delivery/service provision before the agreed dates entitles the client to reject the delivery/service until the due date.

If the Contractor realizes that an agreed date cannot be met, it shall immediately notify the Customer in writing, stating the reasons and the expected duration of the delay.

The unconditional acceptance of the delayed delivery/service does not constitute a waiver of the claims for damages to which Customer is entitled; this shall apply until full payment of the remuneration owed by Customer for the delivery/service concerned.

VI. delivery/service and storage

If the contractor and the customer agree on the validity of one of the international trade clauses “Incoterms” drawn up by the International Chamber of Commerce (ICC) for the contract, the current version shall apply. They shall only apply insofar as they do not conflict with the provisions of these GPC and the other agreements made. Unless otherwise agreed in writing, the delivery/service shall be delivered/performed and duty paid (DDP “delivered duty paid”, according to Incoterms) to the place of delivery/service or use specified in the order.

2. the deliveries/services shall be effected to the shipping addresses indicated. Delivery of the supplies/services to a place of receipt other than the place designated by the Purchaser shall not cause the risk to pass to the Purchaser even if this place of receipt accepts the supplies/services. Contractor shall bear the additional costs incurred by Customer resulting from delivery/performance at a place of receipt other than the agreed place of receipt.

3. partial deliveries/services are inadmissible, unless Customer has expressly consented thereto. Partial deliveries/services must be marked as such, delivery/service notes must be submitted in triplicate.

4. if weighing is required, the weight determined on the Customer’s calibrated scales shall be decisive.

5. if the Contractor is entitled to return the packaging necessary for the delivery/service, the delivery/service documents shall be clearly marked as such. In the absence of such marking, the Purchaser shall dispose of the packaging at the expense of the Contractor; in this case, the Contractor’s claim to return the packaging shall expire.

6. storage of items required for the provision of the delivery/service on the premises of the Purchaser may only be carried out in allocated storage areas. The Contractor shall bear full responsibility and risk for these objects until the transfer of risk of the entire order.

7. the statutory provisions, in particular the provisions of the law on the transport of dangerous goods and the applicable regulations on dangerous goods, including the respective appendices and annexes, must be observed during transport.

8. the declaration of the goods in the consignment notes must be made in accordance with the currently valid regulations of the railways in the case of shipment by rail Costs and damages resulting from incorrect or omitted declarations shall be borne by the contractor.

9. the Supplier shall have the receipt of consignments confirmed in writing by the specified place of receipt.

VII Execution, Subcontractors, Assignment

As far as deliveries/services under a contract for work and services are concerned, the following shall apply

1. the contractor is not entitled to transfer the execution of the respective contract in whole or in part to third parties.

2. the contractor is obliged to name his subcontractors to the customer upon his request.

3. the contractor may not assign his contractual claims against the customer to third parties or have them collected by third parties.

VIII. termination

1. the client has the right to terminate the contract in whole or in part. In such a case, he shall be obliged to pay for all deliveries/services provided up to that point in time as well as to pay appropriate remuneration for procured material and delivered/performed work; in this case § 649 p. 2 BGB (German Civil Code) shall apply. Further claims of the contractor are excluded.

The Customer has the right to terminate the contract without notice for good cause, in particular if a significant deterioration in the financial situation of the Contractor occurs or threatens to occur and the fulfilment of obligations to the Customer is thereby jeopardised. In this case, the Customer shall have the right to take over material and/or semi-finished products including any special equipment at reasonable conditions.

IX. Invoicing, payment, offsetting

1. the necessary prerequisite for payment is an invoice in accordance with § 14 UstG (German VAT Act) with the information listed under I.3 (at least our supplier number, order number and receiving point). The invoice shall be settled 60 days after delivery/service and receipt of invoice. A delivery/service performed before the agreed date shall not affect the payment period tied to this date.

2. the contractor may only offset against undisputed or legally established claims.

X. Claims from liability for defects

1. the contractor shall be responsible, depending on fault, for ensuring that his delivery/service has the agreed quality and fulfils the intended purpose. If the Customer incurs costs as a result of defective delivery/service, such as transport, travel, labour, material costs, contractual penalties, the Contractor shall bear these costs.

2. the limitation period for claims based on liability for defects shall commence upon complete delivery/performance of the scope of delivery/service or, if acceptance has been agreed, upon acceptance.

3. claims for defects shall become statute-barred after 36 months; longer statutory periods of limitation shall remain unaffected. For newly delivered/performed parts, the limitation period shall start anew, for repaired parts only if the defect is the same or the consequences of a defective repair, the subsequent performance is characterised by a larger scope, special duration or higher costs and the Contractor does not expressly remedy the defect only as a gesture of goodwill, to avoid disputes or in the interest of the continuation of the supply relationship. Defects shall be notified by the customer immediately. In any case, the complaint shall be deemed timely if it is received by the Contractor within a period of three working days, unless a longer period is appropriate in individual cases, calculated from receipt of the goods or, in the case of hidden defects, from discovery. For defects notified within the limitation period, the period shall end at the earliest six months after the notification of the defect. The contractor waives the objection of delayed notification of defects (§§ 377, 381 para. 2 HGB) in the case of defects other than obvious defects.

4. the contractor shall immediately remedy all defects notified within the period of limitation in such a way that the customer does not incur any costs. The costs of the removal of defects or the replacement delivery/performance including all ancillary costs (e.g. freight) shall be borne by the Contractor in accordance with the statutory provisions. If the Contractor does not fulfil his obligation to remedy the defect within a reasonable period of time set by the Customer, the Customer may remedy the defect himself and demand compensation from the Contractor for the necessary expenses or a corresponding advance payment. The statutory rights to rescission, reduction of the purchase price or damages shall remain unaffected.

XI. Assurances/exemptions

1. the contractor assures the client to comply with the MiLoG and indemnifies the client from third party claims, in particular those under § 13MiLoG.

2. in the event that claims for damages are asserted against the client by third parties based on the contractor’s delivery/service, the contractor shall indemnify the client upon first request in full from such claims and undertakes to pay reasonable attorney’s fees and court costs of the client.

3. the Contractor further warrants that goods produced, stored, transported, delivered to or accepted by the Customer on behalf of the Customer are produced, stored, handled or processed and loaded at safe operating sites and at safe transhipment locations and are protected against unauthorized access during production, storage, handling or processing, loading and transportation. The Contractor warrants that the personnel employed for the production, storage, handling, processing, loading, transport and acceptance of such goods are reliable and that they have checked them against the currently valid EU sanctions lists. The contractor further assures that all business partners acting on his behalf are informed that they must also take measures to secure the above-mentioned supply chain. The supplier agrees that his data will be checked against the currently valid sanctions lists of the EU.

XII Place of performance, place of jurisdiction

1. place of performance for all deliveries/services is the place of receipt designated by the customer

2. place of jurisdiction is the registered office of the Customer or, at the Customer’s option, the general place of jurisdiction of the Contractor.

XIII Applicable law

The substantive law of the Federal Republic of Germany shall apply to all legal relations between the Customer and the Contractor to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 in its currently valid version.

XIV Prohibition of Advertising/Confidentiality

1. the use of the logo and the word mark of FMP as well as any mention of the FMP group, FMP software & process engineering GmbH or individual sister companies (LuHaG UG, FMP APAC Limited) as reference customers of the contractor requires the prior written consent of FMP software & process engineering GmbH in individual cases

2. the contractor shall maintain secrecy vis-à-vis third parties with regard to all operational processes, facilities, plants, documents, etc. at the principal and his customers, which become known to him in connection with his activities for the principal, even after submission of the respective offers or completion of the contract. He shall impose corresponding obligations on his vicarious agents and assistants.

XV. partial invalidity/text form

Should individual provisions of these terms and conditions be invalid in whole or in part, the remaining provisions shall remain fully effective. The same applies to the respective contract. Insofar as the written form is required in these GPC for declarations of the contractual partners, the text form shall be sufficient in each case.

XVI Data Protection

In accordance with § 33 BDSG, the Customer points out that he will store data of the Contractor on the basis of the Federal Data Protection Act.

XVII REACH Clause

For all substances, preparations and products delivered/service provided to the Customer, the Contractor must comply with the requirements and measures resulting from the REACH regulation.

XVIII. Applicable version

Insofar as these General Terms and Conditions of Purchase are also made available to the contractor in another language, only the German version shall apply.

Status: January 2017