General Terms and Conditions of Purchase of AFT Automatisierungs- und Fördertechnik GmbH & Co. KG, An der Wiese 14, 79650 Schopfheim, AFT Förderanlagen Bautzen GmbH & Co. KG, Edisonstraße 1, 02625 Bautzen, and AFT CONVEYOR SYSTEMS BAUTZEN DE MEXICO S. DE R.L. DE C.V., C. Paseo Sinfonia 4, Edificio oficina 28 local 2-1, Lomas de Angelópolis II, C.P. 72830, CR 72761 Heroica Puebla de Zaragoza (hereinafter “AFT”)

1.  Scope

General Terms and Conditions of Purchase (GTCP) shall apply in the version currently in force at the time of the order to all present and future legal relationships between the Supplier and AFT.
Only AFT’s GTC shall apply. Any conflicting, deviating or supplementary terms and conditions of the Supplier are hereby rejected, shall have no effect on the contractual relationship and shall not form part of the contract.
If AFT accepts goods or other services without expressly objecting, or if AFT makes payments without objection, or if AFT responds directly or indirectly to correspondence from the Supplier, this shall under no circumstances be construed as acceptance of the Supplier’s terms and conditions.

2. Conclusion of Contract

The conclusion of the contract, as well as all declarations such as orders and delivery calls, and any amendments or additions thereto, must be made in text form in accordance with Section 126b of the German Civil Code (BGB). Orders or declarations made in any other form shall only become binding upon the placing of an order in text form. This also applies to legally relevant declarations by the Supplier after the conclusion of the contract, such as addenda, reminders, setting of deadlines, etc. The requirement for the written form may only be waived in text form. The written form requirement is also satisfied by sending the document by email.
The Supplier must technically review the documents provided by AFT and expressly point out any deviations from the enquiry documents. This also applies to deviations from the generally accepted state of technology and in the event of other concerns on the part of the Supplier. This obligation shall apply throughout the entire term of the contract.
Quotations submitted by the Supplier at AFT’s request are free of charge for AFT. The Supplier is bound by this quotation for three months from receipt by AFT.
AFT accepts the Supplier’s quotation only by means of an order placed by AFT’s Purchasing Department. The signing of the minutes of negotiations does not in itself constitute the conclusion of a contract. Silence on the part of AFT shall not constitute acceptance. Our orders must be confirmed by the Supplier without delay. If the order confirmation is not received by AFT within 8 days, AFT reserves the right to cancel the order. The confirmation of the order (order confirmation) by the Supplier has no legal effect. If, during the execution of the order, it transpires that additional services are required for the proper delivery of the goods or the manufacture of the work, which are not covered by the contractually agreed scope of services, the Supplier must obtain a supplementary order prior to execution. This shall only have legal effect if in text form and must be initiated by AFT’s Purchasing Department. Subsequent changes, extensions or restrictions (addenda) to the agreed scope of services must accordingly be confirmed by AFT’s Purchasing Department.
The Supplier undertakes to maintain the necessary capacity to manufacture the relevant goods for the spare parts market, in order to enable AFT to meet spare parts requests from customers for up to 15 years after fulfilment. The parties shall agree on the relevant periods in consultation with AFT’s customers. Should the Supplier no longer be able to do so, whether due to circumstances for which it is responsible or not (e.g. insolvency), it shall, in consultation with AFT, ensure that the necessary capacities are provided by third parties and undertakes to grant the necessary licenses and provide technical support for this purpose. The terms agreed between the parties shall also apply to deliveries for the spare parts market.
The subcontracting of the entire order by the Supplier to subcontractors is excluded. The subcontracting of parts of the order to subcontractors requires the prior written consent of AFT’s Purchasing Department.

3. Prices, Scope of Delivery and Services

Following the conclusion of the contract, AFT may, within reasonable limits for the Supplier, request changes to the design and construction of the goods to be supplied. In such cases, the consequences – in particular with regard to additional or reduced costs and delivery dates – must be settled by mutual agreement. Without AFT’s written consent, the Supplier is not entitled to make changes to the design and construction of the delivery item, even if such changes comply with the currently applicable generally accepted state of technology. Unless otherwise agreed, the agreed prices are fixed prices. Price increases during the contract period or delivery period will not be accepted.
All services necessary for faultless deliveries or a faultless manufacturing and assembly process shall form part of the Supplier’s scope of services even if they are not expressly listed in the contract.
All prices include all services and ancillary services provided by the Supplier, including costs for packaging, freight and transport to the dispatch point or place of use specified by AFT (DAP – ‘delivered at place’ within the meaning of the applicable Incoterms). If, in exceptional cases, a price ‘ex warehouse’ or ‘ex works’ has been agreed, AFT shall bear only the most favourable freight costs. In any case, the Supplier shall bear all costs incurred up to the point of handover to the carrier, including loading.
Shipment is at the Supplier’s risk. The risk of any deterioration, including accidental loss, remains with the Supplier until delivery to the shipping address or place of use specified by AFT, unless otherwise agreed in individual cases.
The Supplier undertakes to take back all packaging materials.
In the event that materials are provided for installation and assembly work, unloading of the trucks and transport to the storage area are included in the price.
The Supplier is obliged to hand over all design and manufacturing drawings, as well as documentation, user manuals, etc., to AFT, insofar as the order includes designs, developments and/or similar services. The Supplier undertakes to implement the tender documents provided by the end customer without exception. Any deviations must in all cases be approved in text form by AFT’s Purchasing Department. In the case of software development, the scope of services includes, in particular, the delivery of the software in source and object code form and the documentation of the program development and application.
In addition to installation and assembly work, the documentation customary in the industry in accordance with the end customer’s specifications is also included in the scope of delivery.
Changes to factors affecting the price that occur after the conclusion of the contract shall not be taken into account. This also applies to any reductions or increases in quantity. Increases shall only be accepted and remunerated if they are also accepted and paid for by the end customer. A right of withdrawal or termination on the grounds of subsequent increases or reductions in the scope of delivery or services is excluded. AFT shall not be liable for any compensation, additional costs, loss of profits or other damages.

4. Invoicing and Payment, Deadlines, Default, Assignment of Claims

The invoice must be issued in a single copy in a verifiable and traceable manner in accordance with statutory provisions. Under no circumstances may the invoice be enclosed with the consignment.
All order details must be stated on the invoice. If the invoice cannot be processed due to incompleteness caused by missing information or inaccuracies, we reserve the right to reject the invoice and return it. Should we refrain from returning the invoice, we reserve the right to extend the payment term accordingly by a reasonable period (usually equal to the duration of the clarification process from the date of receipt of the invoice) until the invoice has been finally clarified and corrected.
Unless otherwise agreed, payment shall be made after 14 days with a 3% discount, after 30 days with a 2% discount, or after 60 days net. The payment period begins upon receipt of the invoice by AFT. In the event of acceptance of early deliveries, the Supplier shall not issue the invoice before the originally agreed delivery date.
Partial invoices are only permissible if corresponding partial deliveries have been agreed in text form.
Payments made by AFT do not constitute acceptance of the accuracy of the invoice.
In the event of defective delivery or performance, AFT shall be entitled to withhold payment in the amount of a reasonable proportion in accordance with statutory provisions until proper performance has been achieved. If AFT has already made payments for the defective deliveries or services, AFT shall be entitled to withhold other payments due up to the amount of the reasonable proportion referred to in sentence 1. In this case, AFT is entitled to deduct a discount on the withheld amount even after this period. Overpayments must be reported and refunded by AFT of its own accord and without delay within a reasonable period of time, without being requested to do so.
In any event, default of payment shall only occur following a written reminder from the Supplier.
AFT is otherwise entitled to all rights of set-off and retention to the extent permitted by law.
Advance payments made by AFT must be secured in advance by the Supplier by means of an open-ended bank guarantee in the amount of the agreed gross advance payment.
The Supplier is not entitled to assign its claims against AFT or to have them collected by third parties without the prior written consent of AFT, which may not be unreasonably withheld. In the event of extended retention of title, consent shall be deemed to have been granted.

5. Proofs of origin, export restrictions

At AFT’s request, the Supplier must at all times specify the origin of the goods supplied or manufactured by it, as well as the manufacturer or its own Suppliers. The Supplier shall provide any proofs of origin requested by AFT in full, signed and without delay.
The Supplier shall inform AFT without being asked if the goods supplied by them are subject, in whole or in part, to export restrictions or other restrictions under German or other law.

6. Delivery Dates and Contractual Penalties

The delivery receipt dates/performance completion dates specified in the order are binding.
If the Supplier realizes that the agreed dates cannot be met, they must inform AFT immediately, stating the reasons and the expected duration of the delay, and must take all necessary countermeasures at their own expense to prevent delay and any potential damages resulting from such delay. Upon request by AFT or its authorized representatives, the Supplier is obliged to provide information on the production status of the ordered goods in accordance with AFT’s requirements and to disclose any measures taken, if applicable.
In the case of delivery before the agreed date, AFT reserves the right to return the goods at the Supplier’s expense or to refuse acceptance. If no return or refusal of acceptance is made in the event of early delivery, the goods will be stored at AFT until the delivery date at the Supplier’s cost and risk.
Partial deliveries are accepted by AFT only if expressly agreed. For agreed partial shipments, the remaining quantity shall be stated in the delivery documentation.
In the event of a delay, the Supplier shall be liable to AFT for compensation for both direct and indirect losses resulting from the delay. Furthermore, should a grace period set by AFT expire without result, AFT shall be entitled, in cases where the Supplier fails to perform its obligations in accordance with the contract, to withdraw from the contract and, provided the legal requirements are met, to claim damages for breach of duty or damages in lieu of performance. Section 323(2) to (6) of the German Civil Code (BGB) remains unaffected in all other respects. Acceptance of the delayed delivery or service does not constitute a waiver of AFT’s claims for compensation. AFT expressly reserves the right to assert further claims for damages.
Where, before or after the due date for the contractually agreed performance, AFT has grounds for doubting the Supplier’s ability or willingness to perform – in particular because the Supplier indicates that it is unable or unwilling to perform on time – AFT may, provided it has an urgent interest in clarification, set the Supplier a deadline before or after the due date to provide a statement, which must be substantiated upon AFT’s request, regarding its ability or willingness to perform, with the warning that, should the deadline expire without result, acceptance of the performance will be refused. Upon the fruitless expiry of the deadline, AFT may withdraw from the contract in accordance with Section 323 of the German Civil Code (BGB) and/or claim damages or damages in lieu of performance in accordance with Sections 280 and 281 of the German Civil Code (BGB). Further claims and rights remain unaffected. Section 326 of the German Civil Code (BGB) applies mutatis mutandis.
In the event of a culpable delay in delivery by the Supplier, AFT shall be entitled, without prejudice to any further claims for damages, to demand a contractual penalty amounting to 0.5% of the order value for each day or part thereof that the delay continues, up to a maximum of 5% of the order value, unless otherwise agreed. Delay in delivery shall be understood in particular as the calendar-based exceeding of the individual deadlines specified in the contract and its constituent parts, in particular the deadlines agreed in the minutes of negotiations. AFT expressly reserves the right to assert further statutory claims for damages. In this case, compensation is not limited to 5% of the order value. Any contractual penalties payable shall be set off against the claim for further damages. Any contractual penalties already claimed shall be set off accordingly against the damages claimed. AFT may assert the right to a contractual penalty pursuant to Section 341(3) of the German Civil Code (BGB) in respect of the underlying contractual relationship until the final payment has been made.

7. Delivery and Transfer of Risk, Compliance with Health and Safety and Factory Regulations

Unless otherwise expressly agreed, international trade terms shall be interpreted in accordance with INCOTERMS 2020. Any amendments to the INCOTERMS shall result in their application in their current form.
A delivery note must be enclosed with the delivery.
In the case of direct shipment to our customers, a neutral delivery note must be used. A signed consignment note from the carrier must be enclosed with the invoice.
The goods must be received during normal business hours. In this regard, the relevant access conditions at the place of performance must be observed. The Supplier is obliged to obtain sufficient knowledge of these conditions.
In the case of sales contracts, the risk shall always pass to us only upon handover of the goods; in the case of contracts for work and services, the risk shall always pass to us only after acceptance by the end customer.
In the case of installation and assembly work, the Supplier is responsible for compliance with all accident prevention regulations, as well as any works regulations of our customer or regulations on the construction site. The Supplier must familiarize themselves with the applicable regulations and request a copy of them.

8. Quality and Documentation

The Supplier is obliged to ensure that its goods and services comply with industry standards and recognized rules of science and technology, applicable safety regulations and the agreed technical specifications. Products manufactured on the basis of drawings or approved samples must meet the specified requirements. Unless the order contains more specific requirements, the goods and services must, in particular, comply with customary commercial standards and, where relevant, with the applicable DIN, VDE, VDI or comparable national or EU standards. They must also ensure that they comply with the applicable legal provisions at the specified destination, in particular with regard to technical work equipment, hazardous substances, accident prevention, emission control and occupational safety.
Changes to the delivery item and the production process require the prior written consent of AFT.
The Supplier must implement and maintain a documented quality assurance system that is appropriate in terms of type and scope and corresponds to the generally accepted state of technology. In particular, the Supplier warrants that, at the start of supply to AFT, it is certified in accordance with DIN 9000ff or a comparable quality assurance system.
For parts specifically identified in the technical documentation or by separate agreements, the Supplier must also record in separate records when, how and by whom the delivery items were inspected with regard to the characteristics subject to documentation, and what results the required quality tests yielded. The test records must be retained by the Supplier for 20 (twenty) years and submitted upon written request by AFT. The Supplier must impose the same obligations on its own Suppliers to the extent permitted by law.
Insofar as authorities responsible for safety, approval, commissioning, environmental protection or similar matters request access to AFT’s production processes and test records for the purpose of verifying specific requirements, the Supplier agrees to provide all reasonable assistance free of charge and to grant access to the relevant premises.
AFT is also entitled to visit the Supplier’s premises during normal business hours and to inspect the Supplier’s production facilities, including when accompanied by our customer.

9.   Duty to Inspect and Give Notice of Defects / Acceptance

The Supplier is obliged to inspect our plans, drawings and other specifications for the performance of the service without delay, and to check the materials, components or services supplied by us or by other Suppliers, insofar as they concern the Supplier, for completeness, accuracy and suitability for the intended purpose. Should any concerns arise in this regard, the Supplier is obliged to notify us of these immediately in text form. If the Supplier fails to do so, it shall also be liable in this respect under the warranty.
Upon delivery of the contractual products, AFT shall carry out an incoming inspection, which comprises only a check of identity for obvious defects or damage, transport damage and a quantity check, which may also be carried out on a random basis. No further inspections shall take place. Any defects discovered shall be notified to the Supplier by AFT within 10 (ten) days of discovery.
Furthermore, the contractual deliveries and services are only checked for correctness and functionality during in-process inspections and final inspections. Any defects identified in this process shall be notified to the Supplier immediately, but no later than within 10 (ten) days of discovery.
Acceptance shall take place in accordance with statutory provisions, but not before acceptance by AFT’s end customer. Any request for acceptance by the Supplier shall not affect this.

10. Liability for material defects

Under the statutory warranty claims, AFT shall be entitled, in the case of both sales contracts and contracts for work and services, to demand the rectification of defects or a replacement delivery (subsequent performance). In this case, the Supplier shall be obliged to bear all costs for the rectification of defects or the replacement delivery, including the costs of assembly and disassembly at the customer’s premises in the event of withdrawal. In urgent cases, we reserve the right, at the Supplier’s expense, to remedy the defects ourselves or have them remedied by third parties, or alternatively to procure a replacement. Any additional claims for damages remain unaffected.
If, despite compliance with the obligation under No. 9 (duty to inspect and give notice of defects), the defect is only discovered after production has commenced, AFT may claim damages for additional expenses beyond the provision in paragraph 1.
The warranty period of 24 months from acceptance by our customer shall apply, unless longer periods are prescribed by law or stipulated in the contract. A renewed warranty obligation for the affected individual part shall arise if the Supplier carries out rectification work or supplies a replacement. Our written notice of defects shall interrupt the limitation period for our warranty claims in respect of all defects attributable to the nature of the defect complained of.
The Supplier is obliged to compensate AFT for all damages incurred by AFT as a result of the delivery of defective parts and shall indemnify AFT against claims for damages by third parties arising from the delivery of defective parts and any consequential damages resulting therefrom upon first request, provided that the Supplier is responsible for the existence of the defects.
AFT shall be entitled to a retention of 5% of the order value until the expiry of the warranty period.
In the event of insolvency prior to the completion and final invoicing of the order, we shall, without prejudice, retain the right for the duration of the warranty period to a security retention to secure our warranty claims amounting to a further 5% of the order value.

11.   Liability, Warranty and Security Retention

Unless otherwise provided for elsewhere in these General Terms and Conditions of Purchase, the Supplier shall be liable as follows for any loss or damage incurred by AFT, whether directly or indirectly, as a result of a defective delivery, a breach of official safety regulations, or any other legal grounds attributable to the Supplier:
a. If AFT is held liable towards third parties on the basis of strict liability under mandatory law, the Supplier shall indemnify AFT to that extent and indemnify AFT against such claims upon first request to the same extent as the Supplier would be directly liable. The principles of Section 254 of the German Civil Code (BGB) shall apply mutatis mutandis to the settlement of damages between AFT and the Supplier. This shall also apply in the event of a direct claim against the Supplier.
b. The obligation to pay compensation shall be excluded to the extent that AFT has effectively limited its liability towards its customer. In doing so, AFT shall endeavour to agree on limitations of liability to the extent permitted by law, also in favour of the Supplier.
c. The Supplier shall be fully liable for measures taken by AFT to prevent damage (e.g. product recalls), insofar as the Supplier is legally obliged to do so.
d. AFT shall immediately and fully inform and consult the Supplier if AFT intends to make a claim against the Supplier in accordance with the above provisions.
e. AFT’s liability – regardless of the legal basis – is limited to damage caused by AFT, its vicarious agents or contractors through willful misconduct, gross negligence or, in the case of a breach of obligations essential to the fulfilment of the purpose of the contract, through slight negligence.
f. In cases of slight negligence, AFT’s liability is limited in amount to the damages typical of comparable transactions of this kind which were foreseeable at the time of conclusion of the contract or, at the latest, at the time the breach of duty occurred.
g. Claims for damages under the Product Liability Act and arising from injury to life, limb or health remain unaffected by these limitations.
The Supplier warrants that it holds business and product liability insurance for its delivery and services, with a minimum sum insured in accordance with the Customer’s specifications, covering damage to property, personal injury, financial loss and installation damage. In the event of an order, proof of the insurance sums insured must be provided to AFT.

12. Retention of title

Ownership rights: All items, materials and documents handed over to the Supplier by AFT remain the property of AFT.
Use of materials: Materials provided by AFT must be stored separately and used exclusively for AFT orders. The Supplier shall be liable for any damage to or loss of these materials, even if through no fault of their own.
Processing and co-ownership: If the material provided by AFT is processed by the Supplier or combined with other items, AFT shall acquire co-ownership of the new item in proportion to the value of the material originally provided by AFT in relation to the other materials used.
The Supplier undertakes to insure the item to which AFT holds sole or co-ownership against damage, loss, etc.

13. Intellectual Property Rights

The Supplier warrants that the manufacture of the Contract Products does not in any way infringe the intellectual property rights of third parties within Germany or, further still, in the country of export, provided the Supplier is aware of the country to which the goods or services are being exported, nor does it constitute unauthorized use thereof.
The Supplier shall indemnify AFT and its customers against all claims by third parties arising from the use of such intellectual property rights upon first request. The Supplier’s indemnity shall cover all claims incurred by AFT in this connection.
The Supplier shall reimburse AFT for all claims by third parties arising from such claims.
This shall not apply insofar as the Supplier has manufactured the delivery items in accordance with drawings, models or other equivalent descriptions or specifications provided by AFT and does not know, or cannot know in connection with the products developed by it, that this infringes any intellectual property rights.
The contracting party shall notify AFT of the use of published and unpublished, proprietary and licensed intellectual property rights and applications for intellectual property rights relating to the delivery item.

14. Confidentiality

The Supplier is obliged to enter into a confidentiality agreement with AFT as submitted by the latter. Insofar as this is not required by AFT, the Supplier undertakes:
a. to treat documents, information and data – e.g. written materials, records, notes and documents in any storage format, presentations and discussions relating to AFT – which it obtains in connection with or incidentally to the contractual cooperation, as strictly confidential, exercising at least the care of a particularly experienced businessman and complying with the relevant data protection provisions.
b. to impose corresponding obligations on its employees and subcontractors. At AFT’s request, the Supplier shall provide written evidence of compliance with these obligations.
c. The Supplier may only use the business relationship between the contracting parties for advertising purposes with the prior written consent of AFT. The Supplier undertakes not to use the company name or trademarks of AFT without prior written authorization.
d. The Supplier expressly declares that it is responsible for any breach of this confidentiality obligation by its employees, agents or representatives. Consequently, the responsibility for ensuring that confidentiality is maintained lies not only with the Supplier itself, but also with all persons acting on its behalf. The Supplier undertakes to be liable in the event of a culpable breach by its vicarious agents, assistants and representatives.

15. Use of AFT’s production resources and confidential information

Models, moulds, templates, samples, tools and other production equipment, as well as confidential information provided to the Supplier by AFT or paid for by AFT, must not be transferred to third parties or otherwise made accessible to them, nor must they be used for deliveries to third parties or in any other way, e.g. through the use of such items, without the prior written consent of AFT. In accordance with this provision, the Supplier is responsible for storing the aforementioned items securely and at no cost. If AFT has already paid for these items prior to completion of production, it shall acquire ownership of the semi-finished products in accordance with this agreement. AFT reserves all ownership and intellectual property rights of any kind in these items. AFT may, without giving reasons, demand the immediate return of production equipment and confidential documents.

16. Hazardous Substances

If the subject matter of the contract is a substance or preparation which possesses hazardous properties within the meaning of the Hazardous Substances Ordinance, or where such properties arise only during handling, the Supplier must, prior to placing the goods on the market, classify them in accordance with the provisions of the Hazardous Substances Ordinance applicable at the time of delivery, and package and label them accordingly.
For the initial sampling and the first batch delivery, a current, dated safety data sheet must be provided in both German and English, including details of the place of use and intended purpose. The safety data sheet must be resubmitted unsolicited upon any change to the substance/preparation and upon any revision of the safety data sheet by the Supplier, but at the latest every 3 years. If there are special handling instructions, AFT must be informed of these separately in text form and advised by AFT on the use of the substance/preparation, taking into account local conditions. The provisions, in particular the Supplier’s obligations under the Hazardous Substances Ordinance in the version valid at the time of delivery, remain unaffected.

17.   General Provisions

We are entitled to collect, store, amend, transmit or use data relating to the Supplier that we receive in the course of our business relationship and to which the Supplier itself has access. This means that we may use certain information provided by the Supplier for business purposes, provided that the Supplier could itself disclose such data.
The contractual relationship is governed by German law, and the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
If individual parts or provisions of the contract are invalid, the legal validity of the contract as a whole shall remain unaffected. In such a case, the contracting parties are obliged to replace an invalid provision with a valid one that comes closest to the economic purpose. This provision does not apply if the invalidity is attributable to a breach of specific sections of the German Civil Code (BGB). In this case, the statutory provision shall apply.
The aforementioned terms of delivery also apply to any subsequent transactions between the parties.
AFT shall be entitled to withdraw from the contract if the Supplier applies for the opening of insolvency proceedings, if insolvency proceedings are opened, or if the application for the opening of such proceedings is rejected due to lack of assets. AFT shall also have a right of withdrawal if individual enforcement measures are taken against the Supplier.
The law of the Federal Republic of Germany shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
The place of performance for deliveries and payments for AFT Automatisierungs- und Fördertechnik GmbH & Co. KG is the premises at An der Wiese 14, 79650 Schopfheim, and for AFT Förderanlagen Bautzen GmbH, the premises at Edisonstraße 1, 02625 Bautzen, AFT CONVEYOR SYSTEMS BAUTZEN DE MEXICO S. DE R.L. DE C.V., C. Paseo Sinfonia 4, Edificio oficina 28 local 2-1, Lomas de Angelópolis II, C.P. 72830, CR 72761 Heroica Puebla de Zaragoza, unless otherwise agreed in the contract.
The place of jurisdiction shall be, at AFT’s discretion, either Schopfheim, Bautzen or Puebla de Zaragoza.