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General conditions of purchase

Last revised: 1 June 2007

1 General Information

1.1. The purchaser orders exclusively on the basis of the purchaser’s General Conditions of Purchase; the purchaser does not recognize conditions that contradict or differ from the purchaser’s conditions of purchase, unless the purchaser has expressly agreed to their validity in writing. The implicit acceptance of deliveries and services of the supplier and payments made by the purchaser does not constitute any agreement to contradictory conditions of the supplier.

1.2. The purchaser’s General Conditions of Purchase apply to all future business with the supplier. 1.3 The legal provisions apply in addition to these conditions of purchase.

2. Conclusion of contract and contract changes

2.1. Orders, call-offs, contracts of any kind, and changes or additions to such contracts are only effective, if they are made in writing, via data transmission, via machine-readable data carriers, or by fax.

2.2. Cost estimates are binding and are not to be remunerated unless otherwise explicitly agreed.

2.3. If the supplier does not accept the orders within two weeks following receipt, the purchaser may revoke such orders. Call-offs are binding if the supplier does not object to them within five working days after receipt.

3. Delivery time, delay in delivery, contractual penalty

3.1. The agreed delivery time is binding. The timeliness of the delivery without assembly or installation is determined by the receipt at the delivery address specified by the purchaser; the timeliness of deliveries with installation or assembly and of services is determined by their acceptance.

3.2. In the event of recognizable delay in a delivery or service, the supplier must inform the purchaser in writing immediately.

3.3. If deliveries need to be accelerated for reasons attributable to the supplier, the supplier must bear the additional costs thus arising.

3.4. The unconditional acceptance of the delayed delivery does not constitute any waiver of compensation claims, to which the purchaser is entitled to due to the delayed delivery or service.

3.5. For unit quantities, weights, and dimensions, the values determined by the purchaser during the incoming goods check are authoritative, unless alternative evidence is provided.

3.6. For software that is part of the scope of product delivery, including its documentation, the purchaser has the right to use with the agreed performance characteristics and in the scope required for a contractual use of the product, in addition to the right of use in the scope permitted by law (section 69 a ff. Germany Copyright Act (UrhG)). The purchaser may create a back-up copy without express agreement.

3.7. If the supplier enters into default by exceeding the delivery time, the purchaser may demand a contractual penalty of 0.1% of the net order sum per calendar day, but no more than 5% of the net order sum. Further statutory claims remain reserved; if such claims are asserted, any incurred contractual penalty will be set off against the damages claimed. The purchaser may declare reservation of the contractual penalty to the supplier up until the final settlement.

4. Force majeure

Force majeure, labor disputes, non-culpable disruptions of operation, measures taken by governmental authorities, and other unavoidable events release the purchaser — without prejudice to other rights — in whole or in part from the obligation to accept ordered goods without the supplier being entitled to demand compensation or assert other claims against the purchaser.

 

5. Prices, delivery, and transfer of risk

5.1. The agreed prices are fixed prices that include free delivery to the delivery address stated in the agreement including packaging and transport costs and transport insurance.

5.2. Installment deliveries are only accepted after prior written agreement.

5.3. For delivery without installation or assembly, risk is transferred to the supplier on receipt at the delivery address stated by the purchaser. For delivery with installation or assembly and for services, risk is transferred to the supplier on acceptance as performed at the place of installation.

5.4. For delivery earlier than agreed, the purchaser reserves the right to return the delivery at the supplier’s expense. If no return delivery is performed in the event of premature delivery, the goods are stored at the purchaser’s premises at the supplier’s expense and risk until the delivery time. The invoice must be paid within the payment period in accordance with the delivery time that was agreed.

6. Invoices, payments, offset, withholding

6.1. Invoices must be issued to the purchaser’s address for each individual order with the order number and other order references stated. Invoices not submitted correctly are deemed received by the purchaser only at the time of correction.

6.2. Payments are made within 14 days with deduction of a 3% discount or within 30 days net after delivery/acceptance and receipt of invoice. A discount deduction is permitted even if the purchaser performs offsets or retains payments because of defects. Payment is made subject to verification of the invoice.

6.3. Payments do not constitute any recognition of the delivery/service as being in conformity with the contract.

6.4. The supplier is entitled to set-off rights only if the supplier’s counterclaims have been finally determined, are uncontested, or are recognized by us. The supplier is entitled to a right of retention only for a counterclaim that is based on the same contractual relationship.

7. Termination or withdrawal on compelling grounds

The purchaser may terminate the contract on compelling grounds or withdraw from the contract, in particular if the supplier has opened insolvency proceedings or if the supplier has discontinued payments for a longer time period or if insolvency proceedings have been filed against the supplier’s assets or if such filing has been rejected on the grounds of insufficient assets.

 

8. Fulfillment and warranty

8.1. The supplier guarantees that all deliveries and services are rendered professionally in accordance with the agreed specification and with use of the most suitable materials and that they incorporate the latest technology and comply with the applicable legal provisions and the regulations and directives of public authorities, employers’ liability insurance associations, and specialist associations.

8.2. The purchaser is fundamentally entitled to choose the type of supplementary performance (cure), even in the case of a contract to produce a work. Section 439 German Civil Code (BGB) applies accordingly.

8.3. In addition to the purchaser’s legal claims for defects, the purchaser may, if there is a defect in the delivered product or the created work, after the expiry without result of a reasonable period specified by the purchaser for remedy, remedy the defect himself and demand reimbursement of the necessary expenses, unless the supplier rightly refuses remedy. In this regard, the legal provision on self-help in relation to a contract to produce a work (section 637 German Civil Code (BGB)) applies accordingly for the purchase agreement. Notwithstanding the statutory provisions, the purchaser may in urgent cases, in particular to counter an acute risk of serious damage, remedy the defect himself at the supplier’s expense even without specifying a period for the remedy.

8.4. If the purchaser had to take back the item/work delivered by the supplier, accept a reduction in the purchase price/remuneration, or pay compensation or reimbursement of expenses to the purchaser’s customer as the result of the item/work delivered by the supplier being defective, no specification of a period otherwise required is needed for the warranty claims against the supplier (sections 437, 634 German Civil Code (BGB)) due to the defect claimed by the customer against the purchaser.

8.5. The purchaser may demand reimbursement of the expenses by the supplier, which the purchaser must bear in its relationship with its customer for the purpose of remedy (in particular the incurred transport, workers’ travel, work and materials costs), if the defect claimed by the purchaser’s customer was already present when risk was transferred to the purchaser.

8.6. If the defect is only noticeable during treatment or processing or during initial start-up, the purchaser may, without prejudice to his other rights, also claim compensation for the work carried out unsuccessfully.

8.7. The warranty period is 36 months, unless otherwise agreed. It commences with transfer of the delivery item to the purchaser or to the third party named by the purchaser at the place of reception prescribed by us. If an acceptance is provided for by law or by contract, the warranty period commences with successful acceptance.

8.8. If a defect occurs within the first 12 months of the warranty period, it will be assumed that this defect was already present at the time of transfer of risk, unless this assumption is incompatible with the nature of the item or defect.

8.9. The claims for defects lapse 24 months after notification of defects within the warranty period, insofar as no longer period is provided for by law or by contract. The limitation period does not end before the end of the warranty period, however. Claims due to defective construction work and due to defects in items that were used for a building in accordance with their typical use and that caused the building’s defect lapse no earlier than 5 years after acceptance of the building/delivery of the items. The claims for defects lapse no earlier than two months after the time when the purchaser fulfilled any recourse claims of its customer arising from this defect. This expiry suspension ends no later than five years after the supplier has delivered the item or work to the purchaser.

8.10. If the supplier fulfills his remedy obligations by remedying the defect, a new limitation period begins for the same defect or for the consequences of the defective improvement from acceptance of the remedy, unless the remedying of the defect involves a minor defect that can be remedied without significant work. If the supplier fulfills his remedy obligations by providing a substitution, a new limitation period begins for the product/work delivered as a replacement from its delivery/acceptance, unless the replacement delivery involves a delivered part with a minor defect that can be remedied without significant work.

8.11. For defects of title, the supplier indemnifies the purchaser of any claims by third parties. The limitation period for defects of title is three years. This limitation period commences with the end of the period, in which the claim arose and purchaser gains knowledge, or would without gross negligence gain knowledge, of the circumstances substantiating the claim and of the identity of the liable party, and lasts ten years from its origination, irrespective of the knowledge or grossly negligent lack of knowledge.

8.12. The incoming dispatches are checked either by the purchaser or by its customers (for direct dispatch) for any non-compliance in terms of quality or quantity by means of random sample checks. The inspection of the goods is performed in due time, if it is performed within 10 working days after delivery. Notification of a defect is performed in due time, if it is received by the supplier within 10 working days after discovery of the defect.

8.13. Acknowledging the receipt of deliveries and approving submitted drawings does not constitute a waiver of claims for defects or other rights on the part of the purchaser.

8.14. The notional acceptance specified in section 640 (1) sentence 3 German Civil Code (BGB) is excluded. Acceptance by means of certificate of completion in accordance with section 641a German Civil Code (BGB) is excluded.

9. Commercial property rights

9.1. The supplier guarantees that all deliveries are free from third-party property rights and in particular that no patents, licenses, or other property rights of third parties within Germany are breached through the delivery and use of the delivered items. Insofar as the supplier is aware that its products are distributed by us in particular countries, the above also applies for these countries.

9.2. The supplier indemnifies the purchaser and its customers from third-party claims arising from any breach of property rights. Furthermore, the supplier is liable for any further financial loss or damage incurred by the purchaser because of the breach of such rights.

9.3. The purchaser may obtain permission to use the concerned delivery items and services from the rightful holder at the supplier’s expense, applying the due diligence of a prudent businessman.

10. Product liability, indemnification

10.1. If a claim is made against the purchaser on the basis of domestic or foreign product liability regulations due to the defectiveness of the product, that is attributable to a product of the supplier, the purchaser may demand compensation for this damage, insofar as this is caused by the supplier’s products.

10.2. The supplier must indemnify the purchaser from the claims for damages of third parties within the scope of his product liability upon first request and reimburse any expenses arising in relation to any recall campaign performed by the purchaser because of the supplier’s defective product.

11. Execution of work

Persons who execute work on the purchaser’s premises in fulfillment of the contract must observe the provisions of the applicable work regulations and the statutory accident prevention and work health and safety regulations. Liability for accidents suffered by these persons on the purchaser’s premises is excluded insofar as such accidents are not caused by deliberate or grossly negligent breach of obligation on the part of the purchaser or the purchaser’s legal representatives or performing agents.

 

12. Execution documents, tools, samples, objects

12.1. Samples, production equipment, tools, measuring and test equipment, materials provided, drawings, company standard sheets, templates, and the like provided to the supplier by the purchaser remain the purchaser’s property. They must not be used by the supplier for purposes beyond this contract, duplicated, or disclosed to third parties and must be stored by the supplier free of charge with the due diligence of a prudent businessman separate from any other items in his possession, labeled as property of the purchaser, kept absolutely confidential, and returned to the purchaser once the order has been completed without further demand, or otherwise at the purchaser’s request. Approval of such plans, execution drawings, calculations, etc. does not affect the supplier’s warranty obligation. All rights of use of drafts, proposals, drawings, or specifications of any kind are reserved exclusively by the purchaser. On demand, the supplier must also deliver to the purchaser spare part drawings for major spare parts with sufficient information provided for the procurement of spare parts.

The supplier must neither disclose, nor transfer or sell, items produced in accordance with the purchaser’s documents to third parties.

12.2. Moulds, tools, samples, templates, etc. invoiced to us become our property upon payment; they are stored for us by the supplier free of charge and must be handed over to us on request.

13. Place of performance, legal venue, choice of law, miscellaneous

13.1. Unless otherwise agreed, the place of performance for the delivery obligation is the delivery address desired by the purchaser.

13.2. If the supplier is a registered merchant, a legal person under public law or a special fund under public law, the legal venue is Marburg/Lahn for any legal disputes arising directly or indirectly from contractual relationships that these conditions of purchase are based on. The purchaser may also at his option take proceedings against the supplier at the court of his registered office or his branch office or the court of the place of performance.

13.3. Furthermore, the law of the Federal Republic of Germany applies exclusively excluding the UN Convention on Contracts of April 11, 1980.

13.4. In the event of a provision in these conditions and the further affected agreements being or becoming unenforceable, the effectiveness of the remaining conditions will remain unaffected. The contracting parties must replace the unenforceable provision with a provision that most closely fulfills the economic purpose of the unenforceable provision.