General Terms and Conditions of Purchase (GTCP) of the FRICKE Group

Preliminary remark

These General Terms and Conditions of Purchase apply to all companies in the FRICKE Group, in particular Wilhelm Fricke SE, Fricke Landmaschinen GmbH, Fricke Nutzfahrzeuge GmbH, Trex Parts GmbH & Co KG, Saphir Maschinenbau GmbH, FORAS GmbH, Truck Port Hamburg Hannover GmbH, Hofmeister & Meincke GmbH, HTH Hoppe Truck Hydraulik GmbH & Co KG, Mecklenburger Landtechnik GmbH, Fricke Landtechnik GmbH and CFC Distributors INC.

§ 1 Scope of application, Form

(1) These General Terms and Conditions of Purchase (GTCP) apply to all business relationships with our business partners and suppliers (‘sellers’). However, the GTCP only apply if the seller is an entrepreneur (Section 14 German Civil Code (BGB)), a legal entity under public law or a special fund under public law.

(2) The General Terms and Conditions of Purchase apply in particular to contracts for the sale and/or delivery of movable items (“goods”), regardless of whether the seller produces the goods itself or buys them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions in the version valid at the time of the buyer's order or in any case in the version last communicated to the seller in text form as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

(3) These General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the seller shall only become an integral part of the contract if and to the extent that we have explicitly agreed their validity in writing. This consent requirement shall apply in any case, for example even if the seller refers to its General Terms and Conditions in the context of the order confirmation and we do not explicitly object to this.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information in our order take precedence over the General Terms and Conditions. In case of doubt, commercial clauses must be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time the contract was concluded.

(5) Legally relevant declarations and notifications by the seller regarding the contract (e.g. setting a deadline, reminder, withdrawal) must be made in writing. Written form within the meaning of these General Terms and Conditions includes writing and text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, in particular in case of doubt about the legitimacy of the declarant, shall remain unaffected.

(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these General Terms and Conditions.

§ 2 Conclusion of contract

(1) Our order is only considered binding when it is submitted or confirmed in writing. The seller must inform us of obvious errors (e.g. typographical and arithmetic errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before acceptance; otherwise the contract is deemed not to have been concluded.

(2) The seller is obliged to confirm our order in writing within a period of 2 days or, in particular, to carry it out without reservation by sending the goods (acceptance).

(3) A delayed acceptance is considered a new offer and requires acceptance by us.

§ 3 Delivery time and delay in delivery

(1) The delivery time specified by us in the order is binding. If the delivery time is not stated in the order and has not been agreed otherwise, it is 1 day from the conclusion of the contract. The seller is obliged to inform us immediately in writing if it is unlikely to be able to meet agreed delivery times - for whatever reason.

(2) If the seller does not provide its service or does not provide it within the agreed delivery time or is in arrears, our rights - in particular to withdrawal and compensation - are determined in accordance with the statutory provisions. The regulations in paragraph 3 remain unaffected.

(3) If the seller is in default, we can - in addition to further legal claims - demand flat-rate compensation for our default damages amounting to 1% of the net price per completed calendar week, but in total not more than 5% of the net price of the goods delivered late. We reserve the right to prove that greater damage has occurred. The seller reserves the right to prove that no damage at all or only significantly less damage occurred. The contractual penalty will be offset against any further claim for damages. It can be claimed until the invoice has been paid. Acceptance of late delivery does not constitute a waiver.

§ 4 Performance, delivery, transfer of risk, delay in acceptance

(1) The seller is not entitled to have the service owed by it provided by third parties (e.g. subcontractors) without our prior written consent. The seller bears the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation of stocks). Upstream suppliers and subcontractors are vicarious agents of the supplier.

(2) Unless otherwise agreed, delivery within Germany takes place ‘free of charge’ to the location specified in the order. If the destination is not specified and nothing else has been agreed, delivery must be made to our place of business. The respective destination is also the place of performance for the delivery and any subsequent performance (obligation to provide).

(3) The delivery must be accompanied by a delivery note stating the date (issue and dispatch), content of the delivery (item number and quantity) and our order identifier (date and number). If the delivery note is missing or incomplete, we are not responsible for any resulting delays in processing and payment. Separate from the delivery note, a corresponding shipping notice with the same content must be sent to us.

(4) The risk of accidental loss and accidental deterioration of the item passes to us upon handover at the place of performance. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. Otherwise, the statutory provisions of contract law apply accordingly in the event of an acceptance. The same applies to handover or acceptance if we are in default of acceptance.

(5) The statutory provisions apply to the occurrence of our default in acceptance. However, the seller must also expressly offer its service to us if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the seller can demand reimbursement of its additional expenses in accordance with the legal regulations (Section 304 BGB). If the contract concerns an unreasonable item to be manufactured by the seller (custom-made product), the seller is only entitled to further rights if we are obliged to cooperate and are responsible for the failure to cooperate.

§ 5 Prices and payment terms

(1) The price stated in the order is binding. All prices are stated as net prices plus statutory sales tax.

(2) Unless otherwise agreed in individual cases, the price includes all services and ancillary services provided by the seller (e.g. assembly, installation) as well as all additional costs (e.g. proper packaging, transport costs including any transport and liability insurance).

(3) Unless otherwise agreed, the agreed price is due for payment within 30 calendar days of complete delivery and service (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the seller will grant us a 3% discount on the net amount of the invoice. In the case of a bank transfer, payment shall be considered to have been made in good time if our transfer order is received by our bank before the expiry of the payment period; we are not responsible for any delays caused by the banks involved in the payment process.

(4) We do not owe any interest on due dates. The statutory provisions apply to late payment.

(5) We are entitled to set-off and retention rights as well as the defence of non-performance of the contract to the extent permitted by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims on the seller for incomplete or defective services.

(6) The seller has a right of set-off or retention only on the basis of legally established or undisputed counterclaims.

§ 6 Confidentiality and retention of title

(1) We reserve the right of ownership and copyright in respect of illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after the contract has been completed. The documents must be kept secret from third parties, even after the contract has ended. The obligation to maintain confidentiality shall not expire until and to the extent that the knowledge contained in the documents provided has become generally known. Special non-disclosure agreements and legal regulations regarding the protection of confidentiality remain unaffected.

(2) The above provision applies accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items that we provide to the seller for production. Such items must - as long as they are not processed - be stored separately at the seller's expense and insured to an appropriate extent against destruction and loss.

(3) Any processing, mixing or combining (further processing) of items provided by the seller is carried out on our behalf. The same applies if we further process the delivered goods, so that we are considered the manufacturer and acquire ownership of the product at the latest with further processing in accordance with the legal regulations.

(4) The transfer of ownership of the goods to us must take place unconditionally and without regard to payment of the price. However, if in individual cases we accept an offer from the seller for transfer of ownership that is conditional on payment of the purchase price, the seller's retention of title expires at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we remain authorised to resell the goods even before the purchase price has been paid, with the advance assignment of the resulting claim (alternatively, the simple retention of title extended to resale applies). In each case, all other forms of retention of title are excluded, including but not limited to the expanded and assigned retention of title extended for further processing.

§ 7 Defective delivery

(1) For our rights in the event of material and legal defects in the goods (including incorrect and short delivery as well as improper assembly/installation or defective instructions) and in the event of other breaches of duty by the seller, the statutory provisions apply and, exclusively for our benefit, the following additions and clarifications.

(2) According to the legal regulations, the seller is particularly liable for ensuring that the goods have the agreed quality when risk passes to us. In any case, those product descriptions which are the subject of the respective contract - in particular through designation or reference in our order - or which were included in the contract in the same way as these General Terms and Conditions are deemed to be an agreement on the quality. In this, it makes no difference whether the product description comes from us, the seller or the manufacturer.

(3) For goods with digital elements or other digital content, the seller is obliged to provide and update the digital content in any case to the extent that this results from a quality agreement in accordance with paragraph 2 or other product descriptions from the manufacturer or on its behalf, especially on the internet, in advertising or on the product label.

(4) We are not obliged to inspect the goods or make specific inquiries about any defects upon conclusion of the contract. In some cases deviating from Section 442, para. 1, sentence 2 of the German Civil Code (BGB), we are entitled to claims for defects without restriction, even if the defect remained unknown to us at the time the contract was concluded due to gross negligence.

(5) The statutory provisions (Sections 377, 381 German Commercial Code (HGB)) apply to the commercial obligation to inspect and report complaints with the following proviso: Our obligation to inspect is limited to defects that become apparent during our incoming goods inspection through external inspection, including the delivery documents (e.g. transport damage, incorrect or short delivery) or which are evident during our quality control using sampling procedures. No duty of inspection exists if acceptance has been agreed. Otherwise, it depends on the extent to which an inspection is feasible in accordance with the proper course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Without prejudice to our obligation to inspect, our complaint (notification of defects) is deemed to be immediate and timely if it is sent within 10 working days of discovery or, in the case of obvious defects, of delivery.

(6) Subsequent performance also includes removing the defective goods and reinstalling them, provided that the goods were installed in another item or attached to another item in accordance with their nature and intended use before the defect became apparent; our legal right to reimbursement of corresponding expenses (removal and installation costs) remains unaffected. The seller will bear the expenses necessary for the purpose of testing and supplementary performance, in particular transport, travel, labour and material costs as well as any dismantling and installation costs, even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to rectify defects remains unaffected; however, we are only liable in this respect if we recognised or did not recognise through gross negligence that there was no defect.

(7) Without prejudice to our legal rights and the regulations in paragraph 5, the following applies: If the seller does not fulfil its obligation to provide supplementary performance – at our discretion by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery) – within a reasonable period of time set by us, we can remedy the defect ourselves and demand reimbursement from the seller of the necessary expenses or a corresponding advance payment. If subsequent performance by the seller has failed or is unreasonable for us (e.g. due to particular urgency, danger to operational safety or the threat of disproportionate damage), there is no need for a deadline to be set; we will inform the seller of such circumstances immediately, if possible in advance.

(8) Furthermore, in the event of a material or legal defect, we are entitled to reduce the purchase price or withdraw from the contract in accordance with the statutory provisions. In addition, we are entitled to compensation for damages and expenses in accordance with legal regulations.

§ 8 Supplier recourse

(1) We are fully entitled to our legally determined expenses and recourse claims within a supply chain (supplier recourse according to Sections 478, 445a, 445b or Sections 445c, 327 para. 5, 327u BGB), in addition to the claims for defects. In particular, we are entitled to demand from the seller exactly the type of subsequent performance (repair or replacement delivery) that we owe to our customer in individual cases; for goods with digital elements or other digital content, this also applies with regard to the provision of necessary updates. Our legal right to choose (Section 439 para. 1 BGB) is not restricted by this.

(2) Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with Sections 445a para. 1, 439 para. 2, 3, 6 sentence 2, 475 para. 4 BGB), we will notify the seller and with a brief explanation of the facts ask for a written statement. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us is deemed to be owed to our customer. The seller shall be obliged to provide evidence to the contrary in this case.

(3) Our claims for supplier recourse also apply if the defective goods were combined with another product or further processed in some other way by us, our customer or a third party, for example through installation or attachment.

§ 9 Producer liability

(1) If the seller is also responsible for product damage, the seller shall indemnify us from third-party claims insofar as the cause is within its sphere of control and organisation and it is personally liable in relation to third parties.

(2) Within the scope of its indemnification obligation, the seller shall, in accordance with Sections 683 and 670 BGB, be obliged to recompense expenses arising from or in connection with a claim by third parties, including product recalls carried out by us. We shall inform the seller of the content and scope of product recalls – as far as possible and reasonable – and give the seller the opportunity to comment. Further legal claims remain unaffected.

(3) The seller shall take out product liability insurance with a lump sum coverage of at least EUR 5 million per personal injury/property damage event.

§ 10 Foreign trade law, Compliance

(1) The seller irrevocably undertakes to provide us with all information, data and documents of any kind requested by us at any time to authenticate the seller and its beneficial owners (UBO - Ultimate Beneficial Owner), as is the case, for example, for anti-money laundering (AML) regulations, for checking sanctions lists and other regulations that are necessary; these must be made available immediately. The seller is obliged to immediately inform us of any changes to information, data and documents already provided under this provision.

(2) It is expressly stated that the fulfillment of our contractual obligations is subject to the condition that there are no obstacles to the fulfillment of the contract due to national or international regulations, in particular foreign trade law, as well as no embargoes or other sanctions. If one of the contracting parties falls under a sanction provision or an embargo, and the other party is no longer permitted to do business with the affected party due to legal provisions – in particular under foreign trade law –, the parties will terminate their business relationship immediately and each one shall bear its own costs.

(3) The seller will carefully check and comply with all foreign trade regulations, in particular foreign trade law, sanctions and embargo regulations. Furthermore, the seller guarantees compliance with all provisions regarding anti-corruption, competition law and all relevant tax regulations.

§ 11 Embargo on Russian goods

The seller warrants that, in addition to its obligations under Section 10 above, it will comply with the embargo on Russia regarding the import of steel products.

According to Article 3g para. 1(d) of EU Regulation No. 833/2014, from 30 September 2023 it is prohibited to directly or indirectly import or sell the iron and steel products listed in Annex XVII of EU Regulation No. 833/2014 in the European Union, if they have been processed in a third country using iron and steel products according to Annex XVII of EU Regulation No. 833/2014 which originated in Russia.

For products listed in Annex XVII of EU Regulation No. 833/2014 that have been processed in a third country using iron and steel products under CN code 7207 11 or CN codes 7207 12 10 or 7224 90, this prohibition applies from 1 April 2024 for CN Code 7207 11 and from 1 October 2024 for CN Codes 7207 12 10 and 7224 90.
According to Article 3g para. 1(d) of EU Regulation No. 833/2014, proof of the country of origin of the iron and steel intermediate products that were used to process the product in a third country must be available for the customs authorities at the time of import. Proof must be presented if the customs office requests it in individual cases.

In addition to the ‘Mill Test Certificates’ proposed by the EU Commission, invoices, delivery notes, quality certificates, long-term supplier declarations, calculation and production documents, customs documents from the exporting country, business correspondence, production specifications, manufacturer's declarations or exclusion clauses in sales contracts may also be recognised as suitable proof documents to show the non-Russian origin of the primary products.

The seller assures that it will provide the relevant documents and prove the non-Russian origin.

If the seller violates these provisions, it must indemnify the affected FRICKE Group company from all claims, costs, expenses and damages upon first request.

§ 12 Due diligence obligations in the supply chain
The seller guarantees that it will comply with the provisions of the FRICKE Group’s code of conduct for suppliers. This code of conduct can be viewed and downloaded on the Internet at The seller is obliged to report any violations of the FRICKE Group’s code of conduct. This applies to violations in its business area or with upstream (sub-)suppliers. A violation must be reported immediately.

The buyer is entitled to have unannounced audits carried out either by itself or by third parties if there is reasonable suspicion of a violation of the FRICKE Group's code of conduct or the Supply Chain Act (LkSG). The seller must allow access to its business premises during normal business hours.

§ 13 Limitation

(1) The mutual claims of the contracting parties expire in accordance with the statutory provisions, unless otherwise specified below.

(2) Deviating from Section 438 para. 1 no. 3 BGB, the general limitation period for claims for defects is 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period also applies to claims arising from defects of title, whereby the statutory limitation period for third-party claims for restitution (Section 438 para. 1 no. 1 BGB) remains unaffected; in addition, claims arising from defects of title do not become statute-barred under any circumstances as long as the third party can still assert the right against us - especially in the absence of a statute of limitations.

(3) The limitation periods of the sales law, including the above extension, apply – to the extent permitted by law – to all contractual claims for defects. If we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period applies (Sections 195, 199 BGB), unless the application of the limitation periods of the sales law leads to a longer limitation period in individual cases.

§ 14 Choice of law and place of jurisdiction

(1) The law of the Federal Republic of Germany shall apply to these General Terms & Conditions of Purchase (GTCP) and the contractual relationship between us and the seller, to the exclusion of uniform international laws, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) If the seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - including international - place of jurisdiction for all disputes arising from the contractual relationship is the registered office of the purchasing FRICKE company. The same applies if the seller is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases we are also entitled to bring an action at the place of fulfillment of the delivery obligation in accordance with these General Terms and Conditions or a priority individual agreement or at the seller's general place of jurisdiction. Overriding statutory provisions, in particular on exclusive competences, shall remain unaffected.