General Terms and Conditions of Purchase for Best4Tires Holding GmbH and Best4Tires GmbH (last updated: March 2022)

1. Scope, Deviating Terms and Conditions, Future Transactions, Priority Agreements

We (Best4Tires) shall order goods exclusively on the basis of these general terms and conditions of purchase. Any conflicting or deviating terms and conditions of the supplier shall not apply, unless we explicitly acknowledge them in writing. If we place an order and accept deliveries or services, this shall not imply that we accept or acknowledge the supplier’s terms and conditions.

2. Orders, Written Form, Delivery Schedules, Price Increases, Performance of Contract by Third Parties, Ownership Rights and Copyrights to Drawings, etc.

2.1. All offers made by the supplier or orders and declarations of acceptance, amendments and other (side) agreements made before or upon conclusion of the contract – and any delivery schedules – must be made in writing to be legally effective (e.g. by letter, fax or email; hereinafter referred to collectively as “in writing”). The supplier must confirm the order within five working days after it has been placed; the confirmation must be returned by post, fax, email or any other agreed electronic means. If the confirmation is not received on time or with changes, this shall be deemed to be acceptance of the order and the conditions and delivery dates listed in the order.

2.2. Any price increases claimed by the supplier due to a change according to Section 2.3 must be introduced within a reasonable period after the notice of the change has been received by Best4Tires and before the change has been implemented. If the price increase is not introduced within a reasonable period or if it is only asserted after the change has been implemented, the relevant claim held by the supplier shall lapse. The supplier must provide evidence of any additional costs. If the date of the delivery or service has to be postponed as a result of the change, the supplier must inform Best4Tires immediately.

2.3. The contract may only be completely or predominantly performed by subcontractors or sub-suppliers with the prior consent of Best4Tires. The supplier must impose the same obligations on such subcontractors or sub-suppliers as those which the supplier has assumed towards Best4Tires in relation to the tasks he has assumed; he must ensure that they comply with such obligations.

2.4. Best4Tires reserves the ownership rights and copyrights to any illustrations, drawings, models, hard copies, calculations and other documents that it attaches to an enquiry or offer (order); all such documents are confidential and must not be made accessible to third parties without the explicit written consent of Best4Tires. They may be used exclusively for processing the enquiry, preparing an offer and subsequently producing the goods; once the offer has been made and, at the latest, once the contract has been performed, such documents must be returned without the need for a specific request. Unless agreed otherwise in writing, the supplier shall not be entitled to use, distribute or reproduce such documents, nor shall the supplier be granted any similar rights.

3. Prices, Invoicing, Terms of Payment, Right to Withhold and Offset Payment, Assignment, Transfer of Ownership, Processing of Delivered Goods

3.1. Unless otherwise agreed, the prices shall be fixed prices and shall include delivery (DDP – INCOTERMS 2020) to the place of performance defined in Section 5.3, including all expenses incurred in connection with the deliveries and services to be performed by the supplier, particularly costs incurred for tests, inspections, documentation and the creation of technical documents, packaging, transport, customs and border clearance fees and insurance, plus the statutory rate of value added tax; the statutory rate of value added tax shall be indicated separately.

3.2. The price indicated in the order shall be binding; the supplier shall not be permitted to introduce price increases after concluding the contract. Any price escalation clauses or similar provisions of the supplier shall not be recognised. Section 2.4 remains unaffected.

3.3. The invoice must be sent to Best4Tires – in a verifiable form – on the day the goods are dispatched and separately from the goods. Best4Tires shall only be able to process invoices if they contain the order specifications (order / contract and/or delivery schedule number and date, article number and description, quantity and weight information, unit and total prices, delivery note number, date of delivery or service) and all other information required as part of the order. The supplier must reimburse Best4Tires for any costs incurred as a result of non-compliance with this obligation, unless the supplier is not responsible for such non-compliance.

3.4. Payment shall be made after delivery – or after acceptance in the case of services – and upon receipt of a verifiable invoice that complies with the provisions of Section 3.3; it shall either be made within 14 days with a 2% cash discount or within 60 days in full. A payment qualifying for a cash discount shall be considered timely if Best4Tires performs the necessary transaction within the indicated payment window. If an invoice does not meet the requirements specified in Section 3.3, it may be rejected by Best4Tires. The above payment windows shall then begin on the date the new, contractually compliant invoice is received. If a delivery or service is performed earlier than agreed, the originally agreed date of the delivery or service shall take the place of the actual date.

3.5. Best4Tires shall be entitled to withhold and offset payments to the extent permitted by law.

3.6. The supplier shall not be entitled to assign his claims against Best4Tires or have receivables collected by third parties without the written consent of Best4Tires. This shall not apply if the supplier grants his own supplier an extended retention of title within his ordinary course of business. Section 354a of the German Commercial Code (HGB) remains unaffected.

3.7. Once payment has been made for the delivered goods, ownership shall be transferred to Best4Tires. Best4Tires shall not recognise any extended or prolonged retention of title.

3.8. Best4Tires shall be entitled to process, sell and otherwise dispose of the delivered goods within its ordinary course of business.

4. Delivery Dates and Deadlines, Delivery, Delivery Delays, Contractual Penalty, Liability, Supplier’s Right of Retention and Set-Off

4.1. Any delivery dates and deadlines that are specified or agreed by Best4Tires in the order shall be binding.

4.2. Unless otherwise agreed, the goods shall be delivered duty paid (DDP – INCOTERMS 2020) to the place of performance defined in Section 5.3.

4.3. If the goods are not to be delivered duty paid to the place of performance, as specified in Section 4.2, the supplier must make the goods available in good time, taking into account the usual loading and shipping times, and arrange for them to be shipped by the transport company designated by Best4Tires (if any).

4.4. The supplier shall carry out an outgoing goods inspection to ensure that all goods delivered to Best4Tires are free of defects.

4.5. Unless otherwise specified in the order, advance and partial deliveries as well as excess and short deliveries shall only be permitted with the explicit consent of Best4Tires and must be marked as such in the shipping documents.

4.6. The supplier must immediately notify us in writing of any recognisable delivery delays, regardless of why they may have occurred, stating the relevant reasons, the expected duration of the delay and the measures taken to rectify the delay. The supplier must compensate Best4Tires for any damage incurred as a result of a delivery delay.

4.7. In the event of a delivery delay, Best4Tires shall be entitled to demand a contractual penalty amounting to 1% of the relevant order value for each full week of the delivery delay, but no more than 5% in total. The contractual penalty shall be deducted from any damages owed by the supplier as a result of the delay. Best4Tires reserves the right to claim higher damages.

4.8. Limitations and exclusions of liability shall not be recognised.

4.9. The supplier may only assert a right of retention with regard to the goods to be delivered if this right is based on claims from the same contractual relationship that are undisputed, ready for decision or legally established. The supplier may only offset claims against his own counterclaims that are undisputed, ready for decision or legally established.

5. Packaging / Labelling, Delivery Note / Shipping Documents, Place of Performance, Cross-Border Deliveries, REACH

5.1. All goods must be packaged and labelled properly and appropriately according to the instructions issued by Best4Tires. The supplier shall be held liable for any damage incurred by Best4Tires as a result of the supplier packaging goods improperly or labelling them contrary to the instructions issued by Best4Tires, unless the supplier cannot be held responsible.

5.2. A delivery note must be enclosed with every delivery of goods. All delivery notes and other shipping documents must indicate the order / contract and/or delivery schedule number assigned by Best4Tires and the quantity, weight and packing arrangement.

5.3. Unless otherwise agreed, the place of performance for all deliveries and services shall be the place of delivery specified in the respective order. If no place of delivery is specified in the order, or if no other place of performance has been agreed, the place of performance shall be the registered office of Best4Tires in Höhr-Grenzhausen.

5.4. The supplier shall be obliged to promptly send Best4Tires the necessary customs declarations on the origin of the goods if no long-term supplier’s declaration is available. The supplier shall be liable for any disadvantages arising for Best4Tires as a result of an improper or late submission of a supplier’s declaration, unless the supplier is not responsible for the improper or late submission. If necessary, the supplier must present an information sheet confirmed by his customs office to substantiate the information provided on the origin of the goods.

5.5. The supplier must package, label and deliver dangerous products in accordance with the relevant national and international regulations. The supplier agrees to comply with the REACH Regulation (Regulation (EC) No. 1907/2006) for all goods delivered to Best4Tires, including the packaging used. In particular, the supplier shall ensure that the delivered goods and their packaging do not contain any SVHC from the current candidate list above the legal limit pursuant to Art. 59 (1) of the REACH Regulation (http://echa.europa.eu/web/guest/candidate-list-table). The supplier shall ensure that any substances covered by the REACH Regulation in the delivered goods or their packaging are registered accordingly. The supplier agrees to send Best4Tires all information and documentation required under the REACH Regulation (particularly in accordance with Art. 31 et seq. of the REACH Regulation) within the legally prescribed periods or to immediately forward such information from sub-suppliers to Best4Tires.

The obligations specified above shall apply accordingly if the supplier is based in a non-EU country. In particular, the supplier must inform Best4Tires if an SVHC is contained in excess of 0.1% or if any substances covered by the REACH Regulation may be released during the normal and foreseeable use of the goods.

If an article is subject to the German Ordinance on Hazardous Substances (GefStoffV) or meets the criteria of Art. 31 (1) of the REACH Regulation, the supplier must immediately provide Best4Tires with a safety data sheet that meets the requirements of Art. 31 of the REACH Regulation at the start of production – and no later than five working days before the first delivery. Best4Tires shall refuse to accept the goods without the relevant safety data sheet.

6. Notification of Defects, Liability for Defects, Alternative Performance, Limitation Period

6.1. Best4Tires shall notify the supplier of any obvious defects in the delivered goods within seven days of delivery or acceptance; hidden defects shall be reported within seven days of discovery.

6.2. Unless otherwise specified below, Best4Tires’ claims for defects shall be based on the statutory provisions.

6.3. All expenses related to the assessment and rectification of defects shall be borne by the supplier, even if such expenses are incurred by Best4Tires.

6.4. If it is not feasible for Best4Tires to ask the supplier to remedy a defect within a certain deadline due to the urgency of the matter, Best4Tires shall be entitled – without prejudice to its statutory claims – to rectify the situation itself or have the situation rectified by third parties at the supplier’s expense. If possible, Best4Tires shall inform the supplier before rectifying the situation itself or having it rectified by third parties.

6.5. Any claims for defects to which Best4Tires is entitled shall become time-barred 36 months after the start of the statutory limitation period; the legal provisions on the suspension or interruption of the limitation period remain unaffected.

7. General Liability of the Supplier, Product Liability Damage, Exemption from Third-Party Claims, Product Recall, Insurance

7.1. Unless otherwise specified in these general terms and conditions, the supplier shall be liable in accordance with the statutory provisions. Any limitations or exclusions of liability proposed by the supplier shall not be recognised. Subject to Section 6.5 above, the limitation period shall be based on the statutory provisions.

7.2. If the supplier is responsible for product liability damage, he shall indemnify Best4Tires against third-party claims at first request insofar as the cause can be traced back to his sphere of control and organisation and he is personally liable to third parties.

7.3. If a third party asserts a claim against Best4Tires due to liability not related to fault under mandatory law, the supplier shall be liable to Best4Tires to the extent that he would also be directly liable. The principles of Section 254 of the German Civil Code (BGB) shall apply accordingly to the compensation of damage between Best4Tires and the supplier. This shall also apply if claims are asserted directly against the supplier.

7.4. If a product recall is necessary or ordered by official bodies, or if other measures are required to avert dangers to persons or third-party property, the supplier shall be liable for all expenses, costs and damages incurred by Best4Tires as a result of the product recall or other measures and shall indemnify Best4Tires against the relevant third-party claims insofar as the product recall or other measure is required due to the fact that the goods, packaging or service is not provided in accordance with the contract (e.g. if the agreed specifications or assurances are not met or there are product defects), unless the supplier cannot be held responsible. Best4Tires reserves the right to assert further rights and claims.

7.5. Subject to further obligations, the supplier shall immediately inform Best4Tires if he becomes aware of specific circumstances regarding the goods or service provided which make it necessary for Best4Tires or the supplier to recall a product or perform another measure pursuant to Section 7.4 above and/or which pose a relevant risk of product liability claims. The contractual partners shall endeavour to agree on how to proceed; Best4Tires shall have the final right to decide whether to implement a voluntary product recall campaign. Any legal reporting obligations of the supplier remain unaffected.

7.6. The supplier shall be obliged to maintain liability insurance – including product liability insurance and recall cost insurance – for his deliveries and services at least for the duration of the business relationship at his own expense; reasonable insurance cover must be provided, i.e. for product liability insurance, at least EUR 5 million per claim for personal injury and property damage (including purely financial losses) and annual maximum compensation of at least EUR 10 million; for recall cost insurance, at least EUR 5 million per insured event and per insurance year. A copy of the insurance policies must be presented to Best4Tires upon request.

8. Property Rights, Liability, Indemnification

8.1. The supplier shall grant Best4Tires the non-exclusive and irrevocable right – without restrictions in terms of time, space and content – to use the goods and/or services provided for the contractually agreed purpose, particularly to offer them alone or in combination with other goods using its own labelling, to put them on the market, to integrate them into other products, to modify them, to process them or to carry out other transformations and to sell the delivered goods in their original form or in a modified, processed or restructured form. Best4Tires shall be entitled to issue sub-licences within the scope outlined above.

8.2. The goods or services provided by the supplier must be free of third-party rights, particularly patents, utility models, copyrights, registered designs, trademarks, rights to names, personal rights, other industrial property rights, applications for property rights and any other acquired legal positions (hereinafter referred to collectively as “property rights”).

8.3. In the event of a breach of the duty specified in Section 8.2, the supplier shall indemnify Best4Tires against any third-party claims arising from the use of such property rights, unless the supplier is not responsible for the violation of the right concerned. The same applies accordingly to any necessary expenses incurred by Best4Tires in connection with such third-party claims, particularly the costs of its legal defence.

8.4. The supplier shall be obliged to inform Best4Tires, on request, of all applications for property rights that he uses in connection with goods that have been delivered in the past or are yet to be delivered. However, providing such information shall not release the supplier from his liability under the provisions of these general terms and conditions. If the supplier discovers a breach of property rights, he must inform Best4Tires without delay.

8.5. The supplier shall not be liable if he has manufactured the delivered goods exclusively according to drawings and models provided by Best4Tires and he did not know – and could not be expected to know – that the manufacture of the goods would constitute a violation of rights as described above.

8.6. If claims are asserted against Best4Tires due to the violation of property rights, the supplier shall be obliged to assist Best4Tires with its legal defence at his own expense.

9. Confidentiality, Advertising

9.1. The supplier shall be obliged to treat any commercial and technical details which are not known to the public and which become known to him as a result of the business relationship with Best4Tires as business secrets and to keep them confidential; the same applies to the business relationship itself. This particularly applies to any illustrations, drawings, calculations and other documents, means of production and information received. This confidentiality obligation shall continue to apply even after the contract has ended. The confidentiality obligation shall not apply to any details that (i) are known or become known without a legal violation, (ii) are already known to the supplier when concluding the contract, or (iii) third parties disclose to the supplier without breaching a confidentiality obligation.

9.2. The obligation described in Section 9.1 must also be imposed on any sub-suppliers.

9.3. The supplier may only advertise his business relationship with Best4Tires and use it for reference purposes with the explicit consent of Best4Tires.

10. Health and Safety, Environmental Protection, Safety Data Sheets

10.1. For Best4Tires, environmental protection and the health and safety of its customers and employees are of paramount importance. The supplier shall comply with the relevant Best4Tires policies, which form an integral part of the contract concluded between the parties, and the internationally recognised standards for health, safety and environmental protection. The supplier shall guarantee that all deliveries comply with the applicable legal provisions in relation to health, safety and environmental protection. The supplier must also oblige his own subcontractors to comply with such standards.

10.2. The supplier shall inform Best4Tires – without the need for a specific request – about regulatory changes applicable to any of the substances contained in his goods which may affect the health, safety and environmental protection requirements for the goods or which may pose a risk to the security of supply (e.g. substance restrictions or approvals), in order to give Best4Tires and the supplier enough time to comply with the amended regulations and to reduce / minimise the risk posed to the security of supply or to eliminate / minimise its potential impact.

10.3. If requested by Best4Tires or required in accordance with the relevant legal provisions, the supplier must provide Best4Tires with the corresponding safety data sheets in the language of the country of delivery. The safety data sheets must meet the requirements in the country of delivery, regardless of the origin of the goods. The supplier shall send the safety data sheets to Best4Tires by using the following email address: supplier.ra@best4tires-group.com

11. Compliance

11.1. The supplier must comply with all laws, regulations and provisions under the jurisdiction of each country in which he conducts business. This particularly includes compliance with the laws and regulations intended to combat bribery and corruption, money laundering and human trafficking and those intended to promote workers’ rights, environmental protection, sustainability and occupational health and safety. In particular, the supplier shall be obliged to refrain from committing any criminal acts when performing his contractual obligations towards Best4Tires (e.g. fraud or breach of trusts, granting or accepting benefits, corruption, bribery or similar crimes).

11.2. The supplier hereby assures that he shall uphold human rights in all his operations in accordance with the Charter of the United Nations, in particular that he shall not use any form of forced labour or child labour and that he shall not discriminate against anyone based on their race, ethnicity, gender, religion, ideology, disability, age, sexual identity or affiliation with a trade union.

12. Place of Jurisdiction, Applicable Law

12.1. If the supplier is a merchant, the competent courts in the place of our registered office shall be the place of jurisdiction; however, we shall also be entitled to take legal action at the supplier’s local court.

12.2. The contract shall be subject to the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

Last updated: March 2022