1. Area of Application / Placing of Orders
1.1. The legal relationships between the Supplier and Aumann including the companies associated with Aumann shall be subject to the terms and conditions stipulated in this document. Any modifications and amendments have to be made in writing (cf. Article 11 Contract Law). Any other general terms and conditions of business shall not be applicable even if no explicit objection has been made against them in a particular case.
1.2. Any contracts shall fix the item to be delivered and the terms and conditions to be applied and the contracts shall be binding if they are executed on Aumann forms with a proper and correct signature and company chop and are available at Aumann with a proper and correct counter-signature/ company chop by the Supplier. This latter provision shall likewise be applicable in case of any modifications or amendments. The item to be delivered is specified by the particular Aumann material number mentioned in the contract and by the documentation established accordingly. A liability for quantities and deadlines of deliveries shall only become effective through delivery schedule arrangements or call-off orders which can be submitted to the Supplier in writing. Insofar as the Supplier does not object immediately on receipt, the delivery schedule or release order shall be deemed to have been accepted by the Supplier without any order confirmation being required. The goods must be delivered together with delivery documentation and qualified quality documentation or certification. The supplier must follow the latest version of drawing provided by Aumann, whatever raw material or processing condition. If the raw material or processing condition should be substituted, it must with Aumann’s prior consent in writing. If not, Aumann has the right to withdraw the contract or reject the goods.
1.3. No transfer or assignment of a purchase order to any third parties shall be authorized without Aumann’ prior consent in writing.
1.4. Product modifications or changes in the Supplier’s production methods, which result in an amendment of the drawing specification or quality standards or otherwise affect the operational reliability and function of Aumann products, shall only be permitted with the prior written consent of Aumann and shall only be remunerated by prior written agreement. Working hours completed shall only be calculated on the basis of recognized working hours that have been signed off by Aumann or its representatives.
2. Delivery and Performance Dates and Deadlines
2.1. Delivery shall be effected on the dates mentioned in the delivery schedule call orders or call-off purchase orders. Observation of the deadlines shall be deemed as an essential contractual obligation due to the production in series. Unless otherwise agreed, all deliveries shall be made “Carriage Insurance Paid” (CIP, Incoterms 2010) to the Aumann factory or such other premises as indicated in the purchase order.
2.2. The effective date and time for the observation of the deadline or period fixed shall be the date and time of receipt at the Aumann factory to be supplied or at the place of delivery contractually agreed.
2.3. Unless delivery on the basis “ex works” has been agreed, the Supplier shall be committed to make the merchandise available for loading and dispatch in due time and to announce the transport of the merchandise to the transporting agent agreed for collection of the merchandise, while observing the usual time required for loading, dispatch and transport.
3. Delay in Delivery
3.1. If the date of delivery agreed is not observed as a result of a circumstance for which the Supplier is responsible, the Supplier shall be obliged towards Aumann to pro-vide a compensation for the damage caused by the delay. Acceptance of the delayed delivery or performance shall not be deemed as a waiver of any further claims arising from such delay.
Notwithstanding the above, anticipated delays in delivery must be reported to Aumann as soon as possible.
3.2. In the event a delivery should be effected earlier than agreed, Aumann shall be entitled to make a return delivery at the Supplier’s expense. If no return delivery is effected in the event of a premature delivery, the merchandise shall be stored at Aumann until the delivery time agreed at the Supplier’s risk and expense. If premature deliveries are accepted, the due date for payment of the purchase price shall depend on the delivery date agreed.
3.3. In the event of a delay in delivery, liquidated damages to the amount of 1 % per calendar week or part thereof, but not exceeding the maximum limit of 5 % of the value of the part of the delivery or service which is in arrears shall be payable. Apart from that, Aumann is entitled to claim compensation for damages exceeding this amount.
4. Terms and Periods of Payment
4.1. After acceptance of the delivered goods and receipt of the invoice, payment shall be effected within 15 days with a 2 % discount for early settlement or within 90 days with-out any deduction, excepting guarantee fee. If delivery has been agreed to be made on the basis “Free Carrier” (FCA, Incoterms 2010), the date and time of loading of the merchandise plus the usual transport time shall be relevant for payment.
4.2. In the event of a faulty or defective delivery, Aumann shall be entitled to retain payment to the value of the faulty or defective portion of the delivery until its proper and correct completion.
4.3. In the event of any current and recurring deliveries, Aumann shall be entitled – even if a separate invoice is established for each single delivery – to make a total payment for all these deliveries at the end of each week without losing its entitlement to the discount for early settlement which has been agreed.
4.4. The invoice shall be sent to the factory to be supplied at least 15 days before be-coming mature. The invoice has to show the number and the date of the contract, the number and date of the purchase order, the tax identification number, the unloading place, the number and date of the delivery note and the quantity of the merchandise in-voiced. The invoice shall be allowed to refer to one single delivery note or one contract only.
4.5. Aumann shall be entitled to offset the receivables of the Supplier against receivables of Aumann or companies affiliated with the Aumann group. Assignments of the Supplier’s accounts receivable to any third parties shall be authorized with a prior agreement in writing by Aumann exclusively.
This consent shall not be rejected without good cause.
5. Incoming Goods Check, Quality Assurance, Parts Subject to Documentation
The values defined for the goods inwards inspection of Aumann shall be definitive in relation to unit quantities, dimensions, weights and quality. The inspection and approval will be effected with a reservation to the inspection and examination of the incoming goods for their correctness and suitability and, apart from that, according to Aumann’ quality regulations, and in particular according to Aumann’ guideline “Quality in the Purchasing Process”. Inspection staff and domestic/international authorities shall be entitled to inspect the quality of the material and/or production processes of the contractual items during working hours at the Supplier’s premises.
Payment of the purchase price shall not constitute any recognition of the faultless and correct delivery of the goods.
The Supplier is committed to keep the state-of-the-art condition, the safety rules, the “General Technical Delivery Rules of Aumann According to Standard No. 05001” and the technical data requirements for his deliveries, and to check the quality of his products on a regular basis.
The Initial Sampling shall be effected in accordance with the requirements as described in the purchase order or any other supplementary material provided by Aumann to the supplier as well as the Chinese law. In the technical documents and parts marked with the letter “D”, the Supplier shall moreover be committed to stipulate in particular records when, in which way and by whom the items delivered have been checked for the safety characteristics and which results the required quality tests have given. The inspection and test records have to be saved and stored for 10 years and have to be surrendered to Aumann at any time upon request. The Supplier shall be obliged to commit his sub-suppliers to the same extent and within the bounds of the legal possibilities.
6. Notice of Defects
Defects in deliveries made to Aumann shall be reported immediately in writing to the Supplier as soon as the deliveries have been properly processed. In this respect, the Supplier shall waive any objection of a delayed notice of defects.
7. Freight, Packing, Insurance and Passing of Risk and Title
7.1. Deliveries shall be made, unless otherwise agreed in writing, Carriage Insurance Paid (CIP, Incoterms 2010), free at works, packing and freight included. The ship-ping risk shall be borne by the Supplier.
7.2. Title passes to Aumann at the time of delivery.
8. Guarantees and Warranties
The Supplier shall be liable for any defects of quality and defects of title in the items delivered, especially as described below.
8.1. Defects of Quality
If a faulty or defective product is delivered, the Supplier may be given an opportunity for a supplementary specific performance or rendering non-conforming performance by re-pair, correction or subsequent delivery prior to commencement of the manufacturing procedure (processing or incorporation), unless this is unacceptable for Aumann. If the Supplier is unable to carry this out within the period of grace set or the Supplier is delayed, Aumann may remedy the contractual item at the cost of the Supplier, either by its own means or by a third party, or withdraw from the contract and return the goods at the risk of the Supplier. In addition, any resulting costs and damages shall be borne by the Supplier. Further statutory claims shall remain unaffected.
8.2. Defects of Title
The Supplier shall be liable to ensure non-violation of any proprietary rights of third par-ties (e.g. rights in work results). In the event the use of the item delivered should violate any proprietary rights of third parties, the Supplier shall release Aumann from any related claims. Further statutory claims, including but not limited to claims under a right of re-course asserted by Aumann against the Supplier due to defects of title, shall remain un-affected. Aumann shall also be entitled to assert such claims whether the end customer is a private consumer or an entrepreneur. Upon request, the Supplier shall inform Aumann about the use of any published and unpublished own and licensed proprietary rights and applications for proprietary rights filed on the delivery item.
8.3. Warranty Period Warranty period for the guarantees and warranties as Claims as stipulated in clauses 8.1 and 8.2 as well as 9 shall expire 48 months from delivery of the end product to the end customer, but not later than 60 months from delivery to Aumann, unless the statutory warranty period is longer.
8.4. Apart from that, guarantee and warranty shall be subject to the legal requirements.
Unless otherwise provided, the Supplier shall be obliged to provide a compensation for damages which Aumann has suffered directly or indirectly as a result of a delay, faulty or defective delivery, failure to deliver, non-performance of warranties and guarantees, of a violation of safety regulations issued by competent authorities or as a result of any other legal grounds attributable to the Supplier.
If claims are made against Aumann by third parties, the Supplier shall indemnify and hold Aumann harmless.
The Supplier shall be liable for any actions taken by Aumann in defense of any damage (such as special inspections, recall etc.), to the extent as the damage underlying such action is attributable to the Supplier. Insofar, the Supplier shall be granted an opportunity for an investigation of the damage event.
The Supplier shall assume responsibility for the observation of the regulations applicable to the prevention of accidents and of the safety recommendations issued by the competent professional associations, the trade supervisory center and other similar authorities.
10. Production Means / Purchasing of Materials / Parts Developed by Aumann
10.1. Production means such as models, samples, dies, tools, gauges, drawings and the like which have either been provided to the Supplier by Aumann or by Aumann’s customers or which have been manufactured by the Supplier according to Aumann instructions and at Aumann expense, and any other materials and utilities provided to the Sup-plier free of charge for his processing and machining work, shall remain the property of Aumann and must not be transferred to any third parties in any way, and must neither be left for use in any other way nor be used on behalf of any third parties without Aumann’ previous consent in writing even after termination of the contract. Apart from that, these production means have to be made available to Aumann free of charge and in a perfect condition after termination of the contract. Aumann may adopt any production means paid by Aumann on a pro-rata basis upon termination of the delivery at the current value of the Supplier’s portion.
10.2. Any delivery items that have been developed by Aumann (e.g. that have been manufactured according to Aumann’ specifications or drawings and / or which bear a Aumann trademark and / or a Aumann part number) may be sold by the Supplier to Aumann factories exclusively. Any direct deliveries to Aumann’ traders and dealers or any third parties are categorically excluded. The Supplier further undertakes not to offer any such parts in catalogues or any other promotional or sales documents. In the event of a violation of any of the above obligations by the Supplier, Aumann shall be entitled to withdraw from the contract and to demand surrender as a result of the violation of the contract obtained or a compensation for the damage and loss occurred.
10.3. The Supplier shall be compelled to hold the material in safe custody on behalf of Aumann and the Supplier is further committed to inform Aumann immediately of any seizures or attachments or any other security means that could threaten the property of Aumann. If the Supplier provides development services as part of an order, these shall be included in the purchase price and shall transfer to Aumann exclusive ownership and rights of use.
11. Confidentiality and Data Protection
The parties hereto undertake to keep and treat as business secrets all commercial and technical details unknown to the general public which they become aware of as a result of the business relationship. Drawings and models, patterns and samples and similar items must not be surrendered or made accessible to any third parties. The Supplier must not use the fact of the business relationship for any promotional purposes or for his public relations work without Aumann’ prior written consent. Sub-suppliers have to be committed according to this same provision. Aumann shall be entitled to process the data related to persons which it has obtained within the framework of the business relation-ship. In case of any violation of the Supplier’s obligation to confidentiality and data protection, liquidated damages of 5 % of the value of the delivery or service which is effected shall be payable. Apart from that, Aumann is entitled to claim compensation for dam-ages exceeding this amount.
12. External Manpower, compliance
12.1. If any serious violations of the occupational safety and health requirements become known to Aumann, Aumann shall be entitled to withdraw from the contract, if the Supplier fails to remedy any such reported violations immediately.
12.2. Aumann shall further be authorized to prescribe to the Supplier’s personnel the immediate cessation of work. In this case the Supplier shall be liable for damage caused by delay and consequential damage. This shall also apply if the Supplier or its vicarious agents or other persons associated with the Supplier in relation to Aumann or working in the Aumann group or persons assigned by the Supplier commits an act against competition laws, anti-bribery regulations, an offence against property or a similar offence or there is justified suspicion of this having been committed.
12.3. In case of any violation of the Supplier’s compliance obligations, liquidated damages of 5 % of the value of the delivery or service which is effected shall be payable. Apart from that, Aumann is entitled to claim compensation for damages exceeding this amount.
13. Force Majeure
Cases of force majeure, such as earthquake, flood, fire, war, government prohibitions or other unforeseen, and their occurrence and consequences are unforeseeable and unavoidable events (“Force Majeure”) labor conflicts and any other unforeseeable, unpreventable or serious events shall release the parties hereto from their contractual obligations to perform for the duration of the disturbance or disorder and to the extent of its effect. This shall likewise apply if the events occur at a point in time in which the contractual partner concerned is in default. The prevented party shall notify the other party with-out any delay, and within 15 days thereafter provide detailed information of the events and a valid document for evidence issued by the relevant public notary organization ex-plaining the reason of its inability to perform all or part of this Agreement. The parties shall, through consultations, decide whether to terminate the contract or to exempt part of the obligations for a certain period or indefinitely until the event of Force Majeure has ended. If the Force Majeure in question prevails for a continuous period in excess of three (3) months or if no settlement could be reached within this time period, each party has the right to terminate the contract.
14. Obligation to Provide Spare Parts
The Supplier undertakes to continue to execute orders for spare and wearing parts for at least another 10 years from the last delivery effected. The guarantee provision in § 8 shall apply to spare parts.
15. Applicable Law, Place of Performance and Place of Jurisdiction
15.1. The Law of the People’s Republic of China shall apply. The application of the Hague Purchase Act Accord of July 1, 1964 and of the provision of the United Nations’ Convention dated April 11, 1980, on Contracts for the International Sale of Goods shall be excluded. Place of Performance shall be at the Aumann factory to be supplied or, at the discretion of Aumann, at the place of delivery contractually agreed. In case the con-tract is executed in the Chinese and the English language, the Chinese version shall pre-vail.
15.2. Any dispute arising from or in connection with this Contract shall be resolved through settlement or mediation. If no solution can be found, each party may submit the dispute to the China International Economic and Trade Arbitration Commission (CIETAC), Beijing (Arbitration Centre) for arbitration which shall be conducted in accordance with the CIETAC’s arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties. The place of arbitration and of hearings shall be Beijing. The language of the proceedings shall be English. The arbitrators may be selected from outside the CIETAC panel. The time limit for applying for arbitration is two years, commencing on the date when the party knew or should have known that its rights were harmed.