General Terms and Conditions of purchase and service
§ 1 Scope
(1) All sales, deliveries and miscellaneous services of an entrepreneur within the meaning of Section 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law ("Sell-er") to [Kaimann GmbH ("Purchaser") (together "the Parties") shall be governed exclusively by the Purchaser's General Terms and Conditions of Purchase and Service ("General Terms and Condi-tions of Purchase and Service").
(2) Irrespective of whether the General Terms and Conditions of Purchase and Service are expressly agreed anew, they shall also apply to all future sales, deliveries and services of the Seller to the Pur-chaser. The version current at the time of conclusion of the contract shall apply respectively. The Purchaser shall inform the Seller immediately of any new version of the General Terms and Condi-tions of Purchase and Service.
(3) The Purchaser shall not accept any terms and conditions of the Seller that conflict with or deviate from the General Terms and Conditions of Purchase and Service, unless the Purchaser has expressly agreed to their validity in writing. The General Terms and Conditions of Purchase and Service shall also apply if the Purchaser accepts a delivery or other service from the Seller without reservation or provides a contractually owed service without reservation in the knowledge that the Seller's terms and conditions conflict with or deviate from the General Terms and Conditions of Purchase and Service.
§ 2 Initiation of business, conclusion of contract, other declarations
(1) Irrespective of whether a contract is concluded or not, any expenses incurred by the Seller for visits, drafts, samples, cost estimates, quotations, etc. in the course of initiating business shall not constitute an obligation to pay costs or any other liability on the part of the Purchaser.
(2) Orders placed by the Purchaser shall always be subject to change without notice until submitted or confirmed in writing by the Purchaser. The Seller shall notify the Purchaser of any obvious inaccura-cies (e.g. typing or calculation errors) and incompleteness of the order, including the order docu-ments, prior to acceptance for the purpose of correction or completion; otherwise the contract shall be deemed not to have been concluded.
(3) The Purchaser shall be bound by its own offers [4 weeks].
(4) Verbal commitments by representatives or other auxiliary persons of the Purchaser shall only be binding if and to the extent that the Purchaser confirms them in writing.
(5) Legally relevant declarations and notifications to be made by the Seller to the Purchaser or a third party must be made in writing.
§ 3 Delivery and performance time, contractual penalty
(1) The delivery and performance time stated in the order shall be binding. Should the Seller be un-likely to be able to meet the agreed delivery or performance times, it shall be obliged to inform the Purchaser of this in writing without delay.
(2) In the event of a delay in delivery or performance, the Purchaser shall be entitled, in addition to fulfilment of the contract, to charge a contractual penalty of [0.2 %] of the order amount for each working day of delay, up to a maximum of [5 %] of the order amount in total. The Purchaser may assert the penalty until the final payment. Further statutory claims shall remain unaffected; Section 340 para. 2 BGB (German Civil Code) shall apply in relation to claims for damages.
§ 4 Delivery, documents, transfer of ownership
(1) Unless otherwise agreed, deliveries shall be effected "Delivery Duty Paid" ("DDP"; Incoterms 2010) [Hövelhof].
(2) Each delivery shall be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (article number and quantity) and the order identification of the Purchaser (date and number). A note of dispatch with the same contents must be sent to the Purchaser sepa-rately from the delivery note. The Purchaser shall not be responsible for any delays in processing or payment resulting from breaches of the above requirements.
(3) The ownership of the goods shall pass to the Purchaser upon payment at the latest. Any extended or expanded retention of title shall be excluded.
§ 5 Prices and terms of payment
(1) The prices stated in the order shall be binding and shall apply to delivery DDP unless otherwise agreed. All prices include statutory value added tax unless this is indicated separately.
(2) Unless otherwise agreed, prices shall include all services and ancillary services of the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance). The Seller shall take back packaging material at the Purchaser's request.
(3) Unless otherwise agreed, the agreed prices shall be due for payment within  calendar days as from complete delivery and performance (including any possibly agreed acceptance) as well as receipt of a proper invoice. In the event of payment within  calendar days, the Purchaser shall be entitled to deduct [2 %] cash discount from the net amount of the invoice.
(4) The Purchaser can only process invoices if these - in accordance with the specifications in the order - state the order number shown therein; the Seller shall be responsible for all consequences arising from non-compliance with this obligation, unless it can prove that it is not responsible for these.
(5) The Purchaser shall not be obliged to pay interest on arrears. The Seller's claim to payment of default interest shall remain unaffected. The statutory provisions shall apply to the occurrence of de-fault in payment. In any case, however, a reminder by the Seller shall be required.
(6) The Purchaser shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent provided by law. In particular, the Purchaser shall be enti-tled to withhold payments due as long as there are still outstanding claims against the Seller arising from incomplete or insufficient performance.
(7) The Seller shall only be entitled to rights of set-off or retention if and to the extent that its counter-claims are undisputed or have been determined as final and absolute or its counterclaims are based on the same contractual relationship.
§ 6 Provision, tools, moulds etc.
(1) Insofar as the Purchaser provides parts (e.g. software, finished and semi-finished products) to the Seller, the Purchaser shall retain title thereto ("goods subject to retention of title"). Any processing or transformation by the Seller shall be carried out for the Purchaser. Should the goods subject to reten-tion of title be processed with other items not belonging to the Purchaser, the Purchaser shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (pur-chase price plus VAT) to the other processed items at the time of processing.
(2) Should the goods subject to retention of title be inseparably mixed with other items not belonging to the Purchaser, the Purchaser shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (purchase price plus VAT) to the other mixed items at the time of mixing. Should mixing be carried out in such a way that the Seller's item is to be regarded as the main item, it shall be deemed to have been agreed that the Seller shall transfer proportional co-ownership to the Purchaser; the Seller shall hold the sole ownership or co-ownership on behalf of the Purchaser.
(3) Insofar as the value of the security rights to which the Purchaser is entitled according to Para-graph (1) and/or Paragraph (2) exceeds the purchase price of all goods subject to retention of title that have not yet been paid for by more than 10%, the Purchaser shall be obliged to release the secu-rity rights at the Seller's request. The Purchaser shall reserve the right to select the securities to be released.
(4) The Purchaser shall retain ownership of tools, moulds, samples and similar items; these items are to be used exclusively for the manufacture of the goods ordered by the Purchaser. The Seller shall be obliged to insure the items at replacement value against fire, water and theft damage at its own ex-pense. The Seller shall hereby assign to the Purchaser all claims for damages arising from this insur-ance; the Purchaser shall hereby accept the assignment. The Seller shall be obliged to carry out any necessary maintenance and inspection work on the Purchaser's tools as well as all maintenance and repair work at its own expense and in good time. The Seller shall immediately notify the Purchaser of any malfunctions; if it culpably fails to do so, claims for damages shall remain unaffected.
§ 7 Documents of the Purchaser
§ 8 Warranty for defects, Seller's liability for damages
(1) In the event of a defect, the Purchaser shall be entitled to the full extent of the statutory claims. In particular, the Purchaser shall be entitled to demand the Seller, at its discretion, to rectify the defect or deliver a new item. The Purchaser shall expressly reserve the right to claim damages, including damages in lieu of performance, for any degree of fault and to the full amount.
(2) In any case, those product descriptions which - in particular by designation or reference in the Purchaser's order - have become the subject matter of the respective contract or have been included in the contract in the same way as the General Terms and Conditions of Purchase and Performance shall be deemed to be an agreement on the quality as defined by the law. It shall be irrelevant wheth-er the product description originates from the Purchaser, the Seller or the manufacturer.
(3) Notwithstanding Section 442 para. 1 sentence 2 BGB (German Civil Code), the warranty rights for defects shall also exist without restriction if the Purchaser was unaware of the defect at the time of conclusion of the contract due to gross negligence. (4) The costs incurred by the Seller for the purpose of inspection and rectification shall be borne by the Seller even if it transpires that there was no actual defect on hand. The Purchaser's liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected insofar as the Purchaser recognised or was grossly negligent in not recognising that no defect was on hand.
(5) Should the Seller fail to fulfil its obligation of subsequent performance within a reasonable period of time set by the Purchaser, the Purchaser shall be entitled to remedy the defect or procure a replace-ment itself or have it remedied by a third party at the Seller's expense. Should subsequent perfor-mance by the Seller fail or be unreasonable for the Purchaser (e.g. due to particular urgency, risk to operational safety or the threat of disproportionate damage) or should it be seriously and finally re-fused by the Seller, it shall not be necessary to set a deadline; the Purchaser shall, however, inform the Seller without delay, if possible beforehand, of the self-performance or performance by third par-ties.
(6) The limitation period shall be 36 months, calculated from delivery according to Section 4 Para-graph (1) or acceptance. Longer statutory limitation periods shall remain unaffected by this.
(7) The Seller shall be liable for damages for any degree of fault and to the full amount according to the statutory provisions.
§ 9 Supplier recourse
The statutory provisions (Sections 478, 479 BGB (German Civil Code)) shall apply to the supplier's recourse. These shall also apply if the goods have been further processed by the Purchaser or one of its customers before being sold to a consumer (e.g. by incorporation into another product).
§ 10 Product liability, insurance
(1) Insofar as the Seller is responsible for product damage, the cause lies within its sphere of control and organisation and it itself is liable in relation to third parties, it shall be obliged to indemnify the Purchaser against claims for damages by third parties on first demand.
(2) Within the scope of its obligation to indemnify, the Seller shall also reimburse any expenses ac-cording to Sections 683, 670 BGB (German Civil Code) or according to Sections 830, 840, 426 BGB (German Civil Code), which result from or in conjunction with a recall action carried out by the Pur-chaser. The Purchaser shall inform the Seller of the content and scope of the recall measures to be carried out - insofar as this is possible and reasonable - and give the Seller the opportunity to re-spond. Other legal claims shall remain unaffected.
(3) The Seller shall be obliged to take out and maintain product liability insurance with a lump sum coverage of at least EUR 5 million per personal injury/property damage. Further claims for damages by the Purchaser shall remain unaffected.
§ 11 Property rights
(1) The Seller shall guarantee that no rights of third parties within the Federal Republic of Germany are infringed in conjunction with its delivery.
(2) Should a claim be made against the Purchaser by a third party on account of such rights, the Sell-er shall be obliged to indemnify the Purchaser against such claims on first written demand; the Pur-chaser shall not be entitled to make any agreements with the third party - without the Seller's consent - in particular to enter into a settlement.
(3) The Seller's duty to indemnify shall apply to all expenses necessarily incurred by the Purchaser as a result of or in conjunction with a claim by a third party, unless the Seller proves that it is not respon-sible for the breach of duty underlying the infringement of the property right.
(4) The limitation period for these claims shall be 36 months, calculated from delivery according to Section 4 Paragraph (1) or from acceptance.
§ 12 Export control
(1) The Supplier shall be obliged to comply with the applicable requirements of national and interna-tional export, customs and foreign trade law ("FOREIGN TRADE LEGISLATION") for all goods to be delivered and services to be rendered. The Supplier shall obtain any necessary transfer or export licences, unless according to the applicable FOREIGN TRADE LEGISLATION not the Supplier, but we or a third party are obliged to apply for such licences.
(2) As early as possible, but no later than 10 days before the delivery date, the Supplier shall provide us in writing with all information and data that we require to comply with the applicable foreign trade legislation in the case of export, transfer and import as well as when re-exporting the goods and ser-vices if they are resold, in particular for all goods and services:
- the Export Control Classification Number (ECCN) according to the U.S. Commerce Control List (CCL) or "EAR99" if the goods are subject to the U.S. Export Administration Regulations. If the goods are subject to the United States Munitions List or otherwise to the International Traffic in Arms Regulations (ITAR), please also indicate the relevant list item;
- all applicable export list items (if the item is not subject to any export list item, please indicate this with "AL: N")
- the statistical commodity code according to the current commodity classification of foreign trade statistics and the HS (Harmonized System) code;
- the country of origin (non-preferential origin) and,
- if requested by the Purchaser: supplier declarations on preferential origin (for European sup-pliers) or certificates on preferences (for non-European countries) ("EXPORT CONTROL AND FOREIGN TRADE DATA").
(3) In the event of modifications to the origin, characteristics of the goods or services or the applica-ble FOREIGN TRADE LEGISLATION, the Supplier shall update the EXPORT CONTROL AND FOR-EIGN TRADE DATA as soon as possible, but no later than 10 days before the delivery date, and noti-fy us in writing. The Supplier shall bear all expenses and damage incurred by us due to the absence or incorrectness of EXPORT CONTROL AND FOREIGN TRADE DATA.
§ 13 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance shall be the Purchaser's domicile.
(3) The place of jurisdiction shall be the Purchaser's domicile; however, the Purchaser shall reserve the right to sue the Seller at its general place of jurisdiction.