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GTP
 

       

ARTICLE 1 - DEFINITIONS
These General Terms of Purchase (in the following GTP) apply to all orders placed by ENYMOTION GmbH ("ENYMOTION") unless provided for otherwise in the order. The terms used herein have the following meanings: "Order": All contractual documents (insofar as they exist) concerning the performance which regulate the relationships between the supplier and us with the following precedence:
1) the order form
2) the specific conditions and their enclosures
3) these GTP
4) all other documents that are included in the order with our explicit agreement.
"Performance": Delivery of goods, products or equipment ("merchandise"), as well as services and performed work of any description including ancillary services (such as accompanying documents and procedures belonging to the installation).

ARTICLE 2 - SCOPE OF APPLICATION
These Terms of Purchase apply exclusively; contrary or deviating conditions of the supplier shall not become part of the contract unless ENYMOTION has expressly agreed their validity in writing. They shall also apply without restriction if ENYMOTION unreservedly accepts the performance in knowledge of contrary or divergent conditions on the part of the supplier. They shall also be valid for all future business relationships even if these are not explicitly agreed again. Amendments to the GTP and deviations from these GTP shall only be valid provided they were agreed in writing and shall only apply for the order concerned.

ARTICLE 3 - ORDER, OFFER
3.1 All orders, agreements, ancillary agreements or amendments must be acknowledged by ENYMOTION at least in writing (pursuant to §126 b German Civil Code e.g. by letter, fax, e-mail) to take effect; deviations from this stipulation can only be made in writing.
3.2 The supplier is to send back a copy of the order bearing the company's stamp and signature within 7 working days of receipt as confirmation of the order. If no confirmation of order is received within this period and no delivery has taken place in the meantime either, ENYMOTION can cancel its order. Upon completion of the order, the supplier shall also unreservedly acknowledge these Terms of Purchase even if a copy of the order has not been sent back as confirmation to ENYMOTION.
3.3 Offers including all necessary preliminary work are free of charge for ENYMOTION. Deviations from our inquiries/calls for tenders are to be specially designated as such; alternative proposals are to be submitted separately. Exclusivity rights must be explicitly agreed in writing between the parties.

ARTICLE 4 - MODIFICATIONS TO THE PERFORMANCE
ENYMOTION reserves the right to demand subsequent modifications to the ordered performance. The supplier shall without delay submit a binding proposal to ENYMOTION for the realisation of the required modification stating the implications for the costs, schedules and previously agreed deadlines. These modifications must be submitted at least in writing to be accepted as a supplement to the order.

ARTICLE 5 - PERFORMANCE PROCEDURES
5.1 Conditions of delivery: Unless agreed otherwise, all shipments shall be sent free of charges for dispatch, freight, excise duty, packaging and insurance ("delivered duty paid" DDP in accordance with the latest Incoterm conditions) to the named destination on the date of delivery stated in the order during the usual business hours of ENYMOTION.
5.2 Packaging: The supplier is responsible for the packaging. This packaging must be appropriate for the utilised means of transportation and the merchandise to be transported and comply with valid standards and common practices. It must in all cases prevent any form of damage which could impair the merchandise during transport and handling. The packaging material is to be taken back by the supplier at own cost and recycled in accordance with the legislation applicable at the place of delivery.
5.3 Dispatch, place of fulfilment, delivery deadlines, contractual penalties: The number and date of the order as well as the exact designation of the merchandise are to be stated on all dispatch documents. In the case of goods for which their ENYMOTION identification number is stated in the order, this ENYMOTION identification number must be evident from the correspondence per item. Part deliveries insofar as they have been agreed are to be specially designated in all dispatch documents. The place of fulfilment for all deliveries/services is the destination stated in each case by ENYMOTION (dispatch address or place of use) which can be changed up to the date of dispatch. The agreed dates of delivery are binding. In the case of deliveries that are not to take place on a fixed calendar date, the delivery deadline shall begin with receipt of the order, at the latest however 3 days after the order was posted. Authoritative for observance of the date of delivery or the delivery deadline is the receipt of the merchandise at the destination or the punctual completion of products that are ready for acceptance. If the supplier has cause to believe that the observance of dates of delivery may be jeopardised for reasons in his sphere of risk, he is to notify ENYMOTION without delay in writing, stating the reasons and the anticipated duration of the delay. If the supplier gives written notification belatedly or not at all, he shall only be entitled to have these circumstances taken into consideration if they were evident and ENYMOTION was aware of the consequences of the delay. If the date of delivery is not observed, ENYMOTION shall be entitled to withhold 0.1% of the agreed remuneration for each working day of the delay as a flat rate for compensation. The flat rate for compensation shall be limited to a maximum of 10% of the agreed remuneration. This flat rate for compensation can also be demanded up until the final payment if a reserve pursuant to §341 Paragraph 3 German Civil Code has been declared until final payment only following acceptance of the fulfilment. The entitlement of the supplier to provide proof of the fact that no or only insignificant damage has been caused shall remain unprejudiced. The flat rate for compensation is not conclusive for ENYMOTION; it reserves the right to assert further claims for compensation.

ARTICLE 6 - SCOPE OF DELIVERY AND PERFORMANCE, ACCEPTANCE
6.1 ENYMOTION shall only accept part deliveries by explicit agreement. The respective residual quantity is to be stated in each case.
6.2 Excess or short deliveries or any other deviations from the order shall only be acknowledged by ENYMOTION if ENYMOTION has thereto given its approval beforehand at least in writing.
6.3 Proper delivery/performance also includes the provision of all the documentation stipulated in the order, quality certificates, as well as the conducting of all officially required tests and acceptance inspections (e.g. by safety standards authority or similar institutions), as well as documentation on safety and usage. A delivery shall not be deemed to have taken place without the submission of certificates for certifiable parts.
6.4 If an acceptance inspection has been agreed or is provided for by statutory law, its scope and the time are to be punctually determined with the designated point of delivery. The supplier shall bear the costs of the acceptance inspections.
6.5 Inspections and acceptance by ENYMOTION shall not discharge the supplier from his own inspection and warranty obligations.

ARTICLE 7 - TRANSFER OF RISK
Dispatch shall take place at risk to the supplier. In the case of premature delivery, ENYMOTION shall be entitled to return the merchandise at cost to the supplier or to store it at ENYMOTION until the date of delivery at cost and risk to the supplier.

ARTICLE 8 - PRICES
8.1 The agreed prices are fixed prices unless stated otherwise in the order; they exclude all additional charges of any description. In particular they include all the costs of the production, packaging, loading, transport and unloading of the merchandise and of taking back and recycling the packaging material, as well as all excise duty, taxes (with the exception of sales tax), fees and levies whatsoever.
8.2 If it is stipulated in the order that the freight costs are to be borne in full or in part by ENYMOTION, these are to be separately stated in the invoice and substantiated by freight documents or other documentary proof. In case of doubt, the supplier shall choose the cheapest form of transport for ENYMOTION.

 

ARTICLE 9 - BILLING AND TERMS OF PAYMENT
9.1 Invoices are to be submitted in one copy after provision of the delivery/performance and must always include the number and date of the ENYMOTION order or call-forward notice, the destination (dispatch address) and the date of dispatch, as well as all the order details.
9.2 In the case of part deliveries and consignments to different destinations, a separate invoice is to be issued for each part delivery and destination.
9.3 Payment shall be made after full delivery/performance and proper invoicing within 14 days of receipt of the invoice less a discount of 2% or within 30 days of receipt of the invoice net cash.
9.4 Advance or part payments shall only be made subject to written agreement. ENYMOTION reserves the right to demand security for advance payments.
9.5 In the case of deficient delivery/performance, ENYMOTION shall be entitled to proportionately withhold payment until proper fulfilment of the delivery/performance.
9.6 Place of fulfilment for payments is Heilbronn.

ARTICLE 10 - OBLIGATION TO CO-OPERATE
The supplier will carefully check the specifications and other order descriptions released by ENYMOTION and inform ENYMOTION about any, in his opinion, circumstances that need to be corrected, missing specifications and false interpretations.

ARTICLE 11 - WARRANTY
11.1 Purpose: The supplier is liable for material and legal defects in accordance with statutory regulations. In particular he warrants that he holds the unrestricted right to sell the merchandise covered by the order or to perform the services. He warrants furthermore that all deliveries/performances including ancillary services comply with contemporary technical standards, the relevant statutory provisions and regulations and directives issued by public authorities, professional associations and trade associations, in particular with regard to industrial safety, accident prevention and technical equipment, and that they are equipped with the requisite safety mechanisms and instructions. He warrants moreover that the performance corresponds to the specifications and samples as stated in the order as well as any product and performance-related advertising claims. The supplier shall not be entitled to invoke alleged deficiencies in the accuracy of the details in the documents accompanying the order. The supplier must abide by all laws, regulations and rules of conduct which apply to the performance, in particular with regard to production, manufacture, repairs, pricing and delivery, in order to guarantee that the merchandise can be purchased, sold and transported in a proper manner. In the event of defective delivery/performance, ENYMOTION shall be entitled at its own discretion to demand that the supplier remedies the defects or delivers non-defective merchandise free of charge. Should an explicit declaration not be received from ENYMOTION, the supplier has to provide the substitute delivery within a period of 14 days following receipt of the notice of defect. ENYMOTION shall notify the supplier in writing about any recognisable deficiencies in the delivery/performance as soon as they can be ascertained during the normal course of business, but no later, however, than within two weeks of the handover. The application of §§ 377, 379 German Commercial Code is excluded insofar as the deficiencies are not evident. In the presence of special circumstances or if a time limit set for subsequent performance set by ENYMOTION passes without a satisfactory conclusion, ENYMOTION may withdraw from the contract without setting a further deadline and demand compensation instead of the performance, in particular redemption for costs incurred in remedying the deficiency. Instead of withdrawal and compensation, ENYMOTION can also reduce the remuneration in place of the performance. The supplier is obliged to provide proof that he is not responsible for the deficiency/damage. This does not apply if the deficiency/damage is due to circumstances that lie solely within ENYMOTION's sphere of organisation. The supplier also has to answer for blame on the part of his vicarious agents and assistants if these have caused damage during the course of fulfilment or performance. Insofar as the supplier has produced or delivered deficient merchandise pursuant to German product liability legislation, he shall exempt ENYMOTION in this respect from all claims made by third parties.
11.2 The period of limitation for claims for defects is 2 years provided that longer statutory or contractual deadlines do not apply. This begins on the date of the acceptance inspection (if stipulated) or otherwise from the date of the transfer of risk. The same shall apply accordingly to subsequent performance. The supplier shall bear the costs necessary for the purpose of subsequent performance, in particular the costs of transport, travel, infrastructure, work and materials. The statutory warranty legislation otherwise applies.
11.3 Availability of spare parts Unless stated otherwise in the order, the supplier shall guarantee the supply of all spare parts which are necessary for the proper deployment of the performance for a period of at least five years from the date of delivery/performance.

ARTICLE 12 - QUALITY
12.1 ENYMOTION is entitled to check the material procured for fulfilment of the order, its processing, as well as the goods manufactured for us, and to perform quality checks, either itself or through an authorised representative, at any time and by arrangement at the manufacturer's factory. The conducting of such quality checks shall in no way diminish the contractual liability, in particular with regard to the extent of the supplier's own control procedures, nor prejudice the entitlement of ENYMOTION to reject the merchandise either in full or in part.
12.2 Traceability: The supplier undertakes to hand over to ENYMOTION at its written request all information which enables us to identify the origin, place and date of manufacture of the merchandise in addition to the serial or batch number (if requested).

ARTICLE 13 - INDUSTRIAL, HEALTH AND ENVIRONMENTAL SAFETY
When delivering merchandise and performing services for ENYMOTION, the supplier must heed all applicable regulations pertaining to industrial and health safety, working conditions and environmental protection, as well as all the associated legislation and provisions, and ensure that all his employees and subcontractors or representatives also observe these regulations, laws and provisions.

ARTICLE 14 - LIABILITY AND INSURANCE
14.1 Liability: ENYMOTION shall be liable, with the exception of fatal injury, physical injury or damage to health or of damages resulting from the violation of substantial contractual obligations (cardinal obligations), only in the event of a wilful or grossly negligent breach of duty by ENYMOTION or one of its legal representatives or vicarious agents.
In the event of gross negligence or a breach of essential contractual obligations (cardinal obligations), liability shall otherwise be limited to ensuing damage typical for deliveries/performances of the kind in question, in case of doubt, insofar as insurable, to the usual amount of the covering sum of an insurance policy liable to payment regardless of its origin, otherwise to three times the amount of the contractually agreed remuneration.
14.2 Insurance: The supplier and his subcontractors must have concluded the following insurance policies at their own cost and maintain them for the entire duration of execution of the order: general liability insurance/commercial liability insurance and product liability insurance with a coverage sum of at least 2,500,000 euros (two million, five hundred thousand euros) for each case. The supplier will produce proof of the insurance cover upon request.

ARTICLE 15 - FORCE MAJEURE
A party is not in default of fulfilment of its contractual obligations provided that the non-fulfilment is attributable to force majeure. Force majeure only releases the affected party from its contractual obligations and for so long as it is hindered in the fulfilment of its contractual obligations. Each party shall bear all costs for which it itself is responsible and which arise from the event of force majeure. The party affected by force majeure must inform the other party about the situation without delay and in writing with verification of receipt and produce all the necessary proof.tThe other party reserves the right to verify the truthfulness of the asserted circumstances. The party which invokes force majeure must do everything in its power to reduce to as great an extent as possible any negative impact which arises from this situation.

 

ARTICLE 16 - TRANSFERENCE OF THE ORDER ASSIGNMENT TO SUBCONTRACTORS
16.1 Transference The supplier is not entitled to assign the delivery/performance to a third party either in full or in part without the prior written approval of ENYMOTION. The supplier shall inform ENYMOTION without delay and in writing of any changes in its corporate structure such as new majority holdings, share transfers or mergers. In the case of fundamental changes affecting the continuance of the agreement, ENYMOTION shall reserve the right to terminate the agreement within 30 calendar days following receipt of the notification subject to notice of 2 months, but excluding that part of the order which is in the course of being processed. In these cases, the supplier shall only be entitled to assert claims for costs demonstrably caused or incurred up until the date on which notice was given. If the order is transferred to a third party, the supplier shall remain liable for the entire execution of the order as joint and several debtor.
16.2 Assignment to subcontractors Execution of the order may not be assigned to a third party on a subcontractor basis by the supplier without the prior written approval of ENYMOTION. Regardless of this, the supplier must also in this case ensure that all applicable statutory provisions are observed. The supplier shall in all cases remain solely responsible for the proper execution of the order; he shall exempt ENYMOTION from all claims on the part of the supplier's subcontractor or the subcontractor's employees.

ARTICLE 17 - RESCISSION
17.1 ENYMOTION shall be entitled to withdraw from the agreement in the event of a contractually incommensurate performance (or a complete lack thereof) on the part of the supplier following the expiry of a reasonable deadline set for fulfilment or subsequent fulfilment. The deadline is 15 days. A deadline is not required where special circumstances are concerned which justify withdrawal without notice. Cases of services rendered contrary to the terms of the agreement include in particular default or deficiencies pertaining to the quality, properties, production or delivery of the merchandise or the rendering of the services. In the case of withdrawal, any advance payments which are not covered by services in return are to be reimbursed at minimum without delay.
17.2 ENYMOTION shall be entitled to withdraw from the agreement without notice in the event of imminent insolvency, an application for opening insolvency proceedings, its rejection for lack of assets or the opening of insolvency proceedings, or if the supplier goes into receivership or liquidation.

ARTICLE 18 - INDUSTRIAL PROPERTY RIGHTS
18.1 Remuneration in the case of work and service agreements also includes the transfer of the material and the non-exclusive, local and temporarily unrestricted transfer of the industrial property rights and copyrights to ENYMOTION (in particular for plans, studies and documents which have been drafted by the supplier and/or any other third party to be engaged within the scope of the order), without this transfer having to be explicitly mentioned in the order. The supplier shall exempt ENYMOTION from all claims or legal action on the part of third parties which may be asserted in conjunction with the violation of industrial property rights with regard to the performance and shall bear all costs incurred by ENYMOTION in this context, in particular if ENYMOTION is forced to withdraw the merchandise. If a ban on using the merchandise is imposed, the supplier must, at his own expense and at the discretion of ENYMOTION, either exchange or modify the merchandise in such a manner that it no longer violates any industrial property rights. These solutions are to be implemented within such a time frame that meets the requirements of ENYMOTION concerning use of the merchandise. If this is not possible, the supplier shall be obliged to reimburse ENYMOTION for payment of the merchandise. This shall not prejudice the entitlement of ENYMOTION to claim for compensation from the supplier.

ARTICLE 19
Ownership and immediate possession of tools produced at cost to ENYMOTIONS shall be passed on to ENYMOTION following their completion. The tools are to be marked with a metal plate or engraving ("Property of ENYMOTION GMBH").

ARTICLE 20 - CONFIDENTIALITY
The supplier undertakes to treat as a business secret all details which have and will become known to him during the collaboration with ENYMOTION before and during the contract negotiations as well as when executing the order. This means that the supplier shall not reveal to a third party any information that is made accessible to him either verbally, in writing or in any other manner and that he shall use it solely for the fulfilment of his obligations within the scope of the delivery/performance. A contractual penalty to the amount of 50,000 euros shall become due for every case of infringement of this confidentiality agreement. ENYMOTION shall be entitled to demand compensation from the supplier which may exceed this sum. The supplier shall also require that the staff deployed on this project as well as the subcontractors approved by ENYMOTION sign a written confidentiality agreement. These documents are to be presented to ENYMOTION on request. ENYMOTION is to be notified without delay should the supplier become aware that confidential information has come into the possession of an unauthorised third party or if a confidential document has been lost. The duty of confidentiality shall remain valid for at least another 5 years following the conclusion of the last contract and shall only lapse when the intrinsic know-how has become generally known. Documentation of any description that is made available to the supplier within the scope of the call for tenders process or the project remains the property of ENYMOTION. The supplier undertakes not to duplicate these documents or use them for other purposes and only to make them accessible to third parties subject to prior written approval from ENYMOTION. The supplier shall return the documents to ENYMOTION upon request and without delay but no later, however, than after completion of the order. The handover of all documents is the prerequisite for settlement of the remaining balance payments respectively the necessary acceptance declarations.

ARTICLE 21 - MISCELLANEOUS
German law applies. Provided that the supplier is a merchant or a legal entity or special fund under public law or does not have a legal venue in the Federal Republic of Germany, the sole legal venue is Stuttgart. The UN sales convention (Convention of the United Nations on the International Sale of Goods dated 11.04.1980) does not apply as do not the conflict of laws. Insofar as ancillary agreements such as quality assurance agreements or logistics specifications have been agreed as well as these GTP, these GTP shall take precedence in case of contradictions and shall in this respect supersede the ancillary agreements.

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