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CONSTAB Polyolefin Additives GmbH

D-59602 Rüthen
Industriestraße Möhnetal 16
Tel.: +49 2952 8190
Fax: +49 2952 3140

E-Mail: info@constab.com

 

Represented by the General Manager Mr. Olaf Allekotte

 

Trade Register AG Arnsberg, HRB-No: 5356,
Tax-No.: FA Lippstadt 330 5707 1443
VAT ID No: DE813586639

 

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CONSTAB

Katrin Hammer – katrinhammer.de

Terms and Conditions

CONSTAB Polyolefin Additives GmbH General Sales and Delivery Terms and Conditions

 

Valid as of 18/09/2009

 

Art. 1 General, Scope of Application

(1) All orders placed with us by a business person (Kaufmann) as defined in Sec. 14 BGB [German Civil Code] shall be, unless agreed otherwise in writing, governed exclusively by the following Terms and Conditions of Sale and Delivery (the “Terms and Condi-tions of Sale”). Our Terms and Conditions of Sale shall also apply to all future transac-tions with the Buyer, insofar as they are of a similar kind to the present transaction, without any further reference to these Terms and Conditions of Sale being necessary.

(2) Except where we have given our express written consent to their application, terms and conditions of sale and delivery of the Buyer or third parties which conflict with or deviate from these Terms and Conditions of Sale shall not apply. These Terms and Condi-tions of Sale shall apply even if, despite having knowledge of terms and conditions of the Buyer which conflict with or deviate from these Terms and Conditions of Sale, we supply ordered goods or services without reservation or making reference to a letter which contains terms and conditions of business of the Buyer or a third party or making reference to such terms and conditions.

Art. 2 Offers and Conclusion of Contract, Scope of *Performance

(1) Our offers are only deemed binding if we confirm them in writing or comply with them by sending the goods and the invoice. Our offers are made, in particular, subject to availability and subject to clerical, calculation and other errors.

(2) Orders or commissions of the Buyer are binding offers. We shall have the right to accept offers within a period of fourteen days from receipt of them by, at our option, either sending a confirmation or unconditionally supplying the goods or service ordered.

(3) The legal relationship between the Buyer and us shall be governed exclusively by a written contract, including these Terms and Conditions of Sale. The contract shall constitute the entire agreement made between the parties concerning the subject matter in question. Oral agreements shall only be binding if confirmed by us in writing. The same shall also apply to all modifications and additions to the contract, including any modifications or additions to these Terms and Conditions of Sale. The use of telefax or email shall be sufficient to satisfy the requirement of the written form.

(4) Advertising statements as well as documents belonging to an offer, in particular illustra-tions, drawings, indications of weights and measures, performance data, technical de-scriptions and data sheets as well as the technical data and descriptions in the respective product information materials or advertising materials are only approximate in nature unless the application for the purpose stipulated in the contract requires exact conformance. They shall be deemed part of the contract only if expressly incorporated into it. Unless expressly agreed otherwise, they shall not constitute any agreed properties or any warranty of properties or durability of the goods to be supplied by us. Guarantees are given by us through express written agreement with the Buyer only.

(5) We reserve the right to supply goods with deviations that are customary in the trade and with other changes to the technical design, concept or form of the delivery items as well as with deviations in the appearance of the delivery items and to make format changes and changes to the scope of delivery during the delivery period provided the items of delivery are not altered material thereby and the changes are not unreasonable for the Buyer. We expressly reserve the right to make reasonable changes as a result of technical progress or changes in legal regulations as well as improvements to the delivery. Samples are for inspection only and are non-binding. All analytical data, including maximum and minimum values, shall be regarded as approximate only, except where special properties are specifically guaranteed. Regarding quantities, “approx.” or “ca.” means, at our discretion, ± 10%. No part-quantities shall be removed from original containers.

(6) We expressly reserve title and/or copyright to all offers and cost estimates submitted by us as well as to all drawings, illustrations, calculations, brochures, catalogues, models, tools and other materials and auxiliary materials made available by us to the Buyer. Except with our express written consent, the Buyer may not make the aforesaid items either as such or the content thereof available to any third party, publish them, or use or reproduce them himself or have them used or reproduced by a third party. The Buyer shall, at our request, return such items to us completely and destroy any copies made of them if they are no longer needed by the Buyer in the ordinary course of busi-ness or if negotiations do not lead to the conclusion of a contract.

Art. 3 Terms of Payment

(1) The prices agreed on conclusion of a contract, and in particular those stated in the order confirmation, shall apply. If a price is not expressly stipulated, the prices as per our price list in force at the time of conclusion of contract shall apply. All prices are quoted in EURO. Unless indicated otherwise, prices are quoted exclusive of packaging, ship-ping, freight, carriage and insurance costs, custom duties and value added tax. All these costs and duties are born by the Buyer. Value added tax will be added in the in-voice as a separate item at the rate valid on the day of invoicing.

(2) The prices apply to the scope of goods and services stated in the order confirmation. Any additional or special goods or services as well as changes to customs duties or taxes after the conclusion of contract shall be invoiced additionally to the Buyer. Unless indicated otherwise, we agree to be bound by the prices stated in our offers for a period of 30 days from the date of the offer.

(3) We reserve the right to adjust our prices by a reasonable amount if, after the conclusion of a contract, external cost cuts or cost increases occur, especially as a result of the conclusion of collective wage agreements or changes to market prices, which affect the total costs of the goods. We shall, on request, evidence the same to the Buyer, indicating the individual cost components and their significance for the total price.

(4) Cash discounts shall require special written agreement. In the case of any delay in payment, the statutory provisions shall apply.

(5) Payment shall be made within 30 days in accordance with the payment terms granted by us. We shall accept discountable bills and cheques only by special agreement and only on account of payment. Discounting costs shall be borne by the Buyer.

(6) We reserve the right, in deviation from any agreements made, to make outstanding deliveries only in return for payment in advance or the provision of security and to declare the total outstanding debts of the Buyer due and payable immediately if the Buyer fails to pay due invoices or exceeds a period or deadline agreed for payment or if, after conclusion of the contract, circumstances become known to us which cast doubts on the solvency or creditworthiness of the Buyer and could jeopardise the payment of our outstanding claims. This shall be the case in particular if the Buyer ceases making payments, if cheques issued by the Buyer cannot be cashed, if bills issued by the Buyer are not paid by the Buyer, if insolvency proceedings are opened against the Buyer or if a petition for the opening of insolvency proceedings is filed but not opened due to lack of funds.

(7) The Buyer shall only have a right to set-off counterclaims or to withhold payments if his/her counterclaim is undisputed or has been finally and absolutely established at law.

(8) In the event of a period or date for payment being exceeded and the Buyer being in default with payment, interest shall be charged on the amounts due at a rate of eight percentage points above the base interest rate in force at the time (Sec. 247 BGB).

Art. 4 Delivery / Passing of Risk

(1) Unless agreed otherwise between us and the Buyer in writing, delivery shall be effected ex works or ex warehouse, and the items of delivery shall be collected by the Buyer at his own risk and expense. The risk of accidental loss and accidental deterioration shall pass to the Buyer on receipt by him of notice of readiness for collection or otherwise on handover of the goods (whereby the start of the loading procedure shall be decisive) into the custody of the freight forwarder, carrier or other third party ap-pointed to handle the transport. The Buyer shall also bear the risk of accidental loss or accidental deterioration of the items of delivery where part-deliveries are effected or where we have, as an exception, also undertaken to perform other duties or services, e.g. to assume the costs of shipment or to perform transport to the Buyer, except where delivery is effected through our own vehicles or our own means of transport. Should shipment or handover be delayed due to reasons attributable to the Buyer, the risk shall pass to the Buyer from the day on which we are ready to dispatch and have notified the Buyer accordingly.

(2) Where shipment has been agreed, we shall be free, in the absence of any special written agreement to the contrary, to choose the mode of transport at our discretion, with the goods being shipped at the Buyer’s expense.

(3) Where shipment or collection of the items of delivery is delayed for reasons attributable to the Buyer, the costs arising as a result of the delay (e.g. storage costs) shall be charged to the Buyer. Where we undertake storage, the costs therefore shall amount to 0.25% of the invoice amount of the items of delivery stored for each full week. This shall be without prejudice to the right to prove and claim higher or lower storage costs.

(4) The consignment shall only be insured by us against theft, breakage, transport, fire and water damage or other insurable risks on the express request of the Buyer and at the Buyer’s expense.

(5) Agreed periods or dates for the supply and delivery of goods and services always shall be deemed approximate only, unless fixed periods or dates have been expressly agreed in writing. Where shipment has been agreed, delivery periods and delivery dates refer to the time of handover into the custody of the freight forwarder, carrier or other third party appointed to effect transport.

(6) We may, without prejudice to our rights arising from delay on the part of the Buyer, demand that the Buyer agrees to an extension of delivery periods or dates for the sup-ply of goods and services at least by the period of time during which the Buyer fails to meet his contractual obligations towards us.

(7) We shall be deemed to be in delay only on expiry of an adequate grace period set to us by the Buyer. In the event of force majeure or other unusual circumstances which were not foreseeable by us at the time of conclusion of contract and are not attributable to us (e.g. disruption of business operations as a result of fire, water and similar circum-stances, earthquake, failure of production facilities and machinery, late delivery or non-delivery by suppliers as well as interruption of business operations due to shortage of raw materials, energy or manpower, strikes, lawful lockouts, difficulties in the procure-ment of transport, disruptions to traffic, terrorist attacks, sabotage, embargoes, intervention by official bodies), we shall have the right – insofar as we are prevented through circumstances of the aforesaid kind and without any fault on our part from fulfilling our duties in a timely manner – to defer supply of goods or services for the duration of the impediment plus a reasonable restarting period. Should supply of goods or services be delayed as aforesaid by a period of more than four weeks, both the Buyer and we shall have the right, to the exclusion of all claims for damages, to withdraw from the contract in respect of the quantity affected by the impediment to delivery.

(8) We shall have the right, provided this is reasonable for the Buyer, to supply part-deliveries and part-services within the agreed delivery periods.

(9) If we should fall into delay with the supply of goods or services or if, for any reason whatsoever, it should become impossible for us to supply such, our liability shall be limited to damages as set forth in Art. 6 of these Terms and Conditions of Sale.

Art. 5 Buyer’s Rights in Case of Defects

(1) The Buyer shall notify us without undue delay, at the latest, however, within a period of seven working days from receipt of the goods, in writing, of any evident defects as to quality, delivery errors and quantity variances, stating the order data and the invoice and dispatch numbers. Hidden defects shall be notified to us in writing within a period of seven working days from their discovery. A notice of defects made later than afore-said or not in a proper way shall cause the Buyer to forfeit the rights to which he is enti-tled in the case of defects, except where a defect has been fraudulently concealed by us.

(2) Where goods supplied by us are defective, we shall at our election (which we shall make in due time) either repair the defect or supply defect-free goods (remedy). In the case of repair, we shall bear all the expenses incurred for the purpose of repairing the defect, in particular transport, travel, labour and material costs, except insofar as these are increased by the item concerned having been taken by the Buyer to a place other than the place of performance.

(3) If we are not prepared or not able to effect remedy, and in particular if remedy should be unreasonably delayed for reasons attributable to us or should fail for any other rea-son or if the kind of remedy to which the Buyer is entitled would be unreasonable for the Buyer, he shall have the right, at his option, to withdraw from the contract or to claim a reduction in the purchase price. Unless indicated otherwise due to the nature of the item or other circumstances involved, repair shall be deemed to have failed after the third attempt. In the event of withdrawal from the contract by the Buyer, the delivered goods must be returned to us at the place of performance as stated in Art. 11 (2). Should the goods be located at a place other than the place of performance (current location), they must be transported by the Buyer from the current location to the place of performance at the Buyer’s own expense and risk.

(4) Where the defect is due to our fault, the Buyer shall be entitled to claim damages solely under the conditions set forth in Art. 6 hereof.

(5) Even if a notice of defects is justified, the Buyer may not plead non-performance and shall continue to have a duty to pay the purchase price on the due date, except where a claim is undisputed or has been finally and absolutely established at law.

Art. 6 Liability

(1) We may only be held liable for damage or unnecessary expenses, on any legal grounds whatsoever, if the damage or unnecessary expenses

a) has/have been caused by us or one of our vicarious agents through culpable breach of a material contractual duty, i.e. a duty without the performance of which the contract could not be properly fulfilled or in the performance of which the Buyer regularly trusts or is entitled to trust, or

b) is/are due to gross negligence or a wilful act on our part or on the part of one of our vicarious agents.

(2) In deviation from Art. 6 (1) a), we shall only be held liable for damage or unnecessary expenses arising from advice and/or information for which no additional remuneration is payable in the case of a duty has been breached with wilful intent or gross negligence, except where such breach of duty constitutes a material defect as defined in Sec. 434BGB in the goods supplied by us.

(3) Where we are liable pursuant to Art. 6 (1) a) for the breach of a material contractual duty without gross negligence or a wilful act, our duty to compensate shall be limited to the foreseeable and typically occurring loss or damage. In this case, we shall not be held liable for unforeseeable, not typically occurring loss of profit of the Buyer, nor for unforeseeable indirect consequential damage. The limitation of liability pursuant to Art. 6 (1) and (2) shall likewise apply to loss or damage caused by gross negligence or wilful act on the part of our employees or representatives except unless they are directors or senior employees of our enterprise.

(4) The foregoing limitations of liability pursuant to Art. 6 (1) to (3) shall not apply where our liability is mandatory under the provisions of the German Product Liability Act [“Produkthaftungsgesetz”] or where claims are made against us on grounds of damage or injury to life, limb, or health. Where goods supplied by us lack a guaranteed prop-erty, we shall only be held liable for loss or damage the avoidance of which was the ob-ject of the guarantee.

(5) All other liability for damages than that provided for in Art. 6 (1) to (4) is excluded, regardless of the legal nature of the claim. This applies in particular to claims for damages on grounds of culpa in contrahendo, Art. 311 (2) and (3)BGB, (positive) breach of obligation pursuant to Art. 280 BGB or tortious claims pursuant to Art. 823 BGB.

(6) Where our liability for damages is excluded or limited pursuant to Art. 6 (1) to (4), the same shall also apply to the personal obligation to compensate on the part of our employees, representatives and vicarious agents.

Art. 7 Limitation Period for Claims

(1) Unless provided otherwise below, claims of the Buyer arising from defects in goods supplied by us or from improperly provided services – including claims for damages and claims for refund of unnecessary expenses – shall lapse one year from the start of the statutory limitation periods.

(2) Where the Buyer is a business person and he or another buyer in the supply chain fulfils, as business person, claims of a consumer for defects to articles newly produced by us, which articles were also supplied to the consumer as new, claims against us pursu-ant to Sec. 437 and 478 (2) BGB shall lapse not earlier than two months after the time at which the Buyer or another buyer within the supply chain has, as a business person, fulfilled the claims of the consumer, provided the Buyer could not have successfully in-voked a plea of the statute of limitations against his customer/contract partner. The claims of the Buyer against us shall in all cases lapse insofar as the claims of the Buyer’s customer/contract partner arising from defects to the goods supplied by us to the Buyer have lapsed, or not later than 5 years from the time at which we supplied the goods to our Buyer.

(3) In the case of goods newly produced and supplied by us, which have been used in ac-cordance with their customary purpose for a building structure and have caused the building structure to be defective, the Buyer’s claims shall lapse 5 years from the start of the statutory limitation period.

(4) Where we have provided improper advice and/or information, such advice or information not being subject to any separate remuneration, without having supplied goods in connection with the advice or information or without the improper advice or information constituting a defect as to quality as defined in Sec. 434 BGB to the goods supplied by us, all claims based thereon shall lapse one year from the start of the statutory limita-tion period. Claims of the Buyer against us arising from the breach of contractual, precontractual or statutory duties that do not constitute any defect as to quality as defined in Sec. 434 BGB to goods to be supplied or already supplied by us shall likewise lapse one year from the start of the statutory limitation period. Insofar as a breach of duty as aforesaid constitutes a defect as to quality as defined in Sec. 434 BGB to goods supplied by us in connection with the advice or information, the provisions of Art. 7 (1), (2), (3) and (5) shall apply with regard to limitation of the claims based on such breach.

(5) The foregoing provisions shall not apply to the limitation of claims arising from damage or injury to life, limb or health nor to the limitation of claims made under the German Product Liability Act nor to the limitation of claims brought on the basis of defects in title of the goods supplied by us, if the defect is caused by a right in rem of a third party which would allow such third party to bring a claim for repossession of the goods delivered by us. Nor shall they apply to the limitation of claims of the Buyer existing on grounds that we have fraudulently concealed defects of the items supplied by us or that we have breach one of our duties wilfully or through gross negligence. In the cases stipulated in this Art. 7 (5), the statutory limitation periods shall apply with regard to limi-tation of the claims concerned.

Art. 8 Reservation of Title

(1) The delivered goods shall remain our property until payment in full of the purchase price and all our other present or future claims against the Buyer arising from the business relationship between us. The placing of the purchase price claim against the Buyer on a current account and recognition of the balance shall have no effect on the reservation of title.

(2) The Buyer shall have the duty to treat the item of sale with care; he shall have the duty, in particular, to insure it sufficiently at his own expense at new value against loss and damage and destruction, e.g. against fire and water damage and theft. The Buyer hereby already assigns any claims he may have under the insurance policies to us. We accept this assignment.

(3) The Buyer may neither give the goods that are subject to our reservation of title in pledge nor assign them by way of security. He does, however, have the right, in accordance with the provisions set forth below, to resell the delivered goods in the ordinary course of business. The aforesaid right shall, however, not exist if the Buyer assigns the claim against his contract partner arising from the resale of the goods in advance to a third party or gives it in pledge or agrees a covenant against assignment with his contract partner.

(4) As security for the fulfilment of all our claims as set forth in Art. 8 (1), the Buyer hereby already assigns to us all claims, including future and conditional ones, arising from the resale of the goods supplied by us, together with all accessory rights, in the amount of the value of the delivered goods and ranking in priority before all other of his claims. We hereby accept this assignment.

(5) For as long as and insofar as the Buyer fulfils his payment obligations towards us, he shall be authorised to collect the claims assigned to us against his customers in the ordinary course of business. He is, however, not entitled to agree a current account relationship or a covenant against assignment with his customers in respect of such claims or to assign the claims to third parties or to give them in pledge. If, contrary to Sentence 2, a current account relationship exists between the Buyer and the purchasers of the goods which are subject to our reservation of title, the claim assigned in advance shall also apply to the recognised balance and, in the event of insolvency of the pur-chaser, to the then existing balance.

(6) The Buyer shall, in response to our demand, prove details of each of his assigned claims and notify his debtors of the assignment, calling on them to make payment to us in an amount equivalent to that of our claims against the Buyer. We also have the right to inform the Buyer’s debtors of the assignment and to collect the claims. We will, however, not make use of these rights for as long as the Buyer fulfils his payment obligations properly and punctually, no petition is filed for the opening of insolvency proceedings against the Buyer and the Buyer does not cease making payments. Should any of the aforesaid events occur, however, we may demand that the Buyer informs us of the assigned claims and the debtors, provides us with all information needed for collecting the claims, and furnishes the relevant documents.

(7) The Buyer shall inform us immediately in writing of any attachment or other intervention by third parties so as to enable us to bring legal actions pursuant to Art. 771 ZPO [Code of Civil Procedure].

(8) Any processing or refashioning of the goods supplied by us subject to our reservation of title shall in all cases be deemed done by the Buyer on our behalf, without this giving rise to any obligations on our part. If the goods supplied by us subject to our reservation of title are processed with other items not belonging to us, we shall have co-title to the new item so created in the same proportion as that between the value of the goods supplied by us (final invoice amount, including VAT) and the value of the other goods processed at the time of processing. In all other respects, the same shall apply to the item created through processing as to the item of sale supplied subject to our reservation of title. If the goods supplied by us subject to our reservation of title are inseparably combined with other items not belonging to us, we shall have co-title to the new item so created in the same proportion as that between the value of the goods supplied by us (final invoice amount, including VAT) and the value of the other goods mixed or combined at the time of mixing or combination. If mixing or combination is done in such manner that the Buyer’s item must be seen as the principal item, it is agreed that the Buyer shall transfer a proportionate share of co-title to us. The Buyer shall preserve the item to which we have sole or co-title on our behalf. The Buyer has the right to dispose of the products newly created through processing or refashioning or combination or mixing in the ordinary course of business for as long as he fulfils his obligations towards us arising from the business relationship in a punctual manner. The Buyer, however, shall not be entitled under no circumstances to resell or otherwise commercialise the goods with the agreement of a covenant against assignment with his buyer or to give the new products in pledge or to assign them by way of security. The Buyer hereby already assigns to us, in the scope of our share of title to the sold goods, his claims arising from the sale of the new products as security. If the Buyer combines or mixes the delivered goods with a principal item, he hereby already assigns his claims against the third party up to the amount of the value of our goods to us. We hereby ac-cept these assignments.

(9) We hereby undertake, at the Buyer’s request, to release to the Buyer the security to which we are entitled to the extent that the realisable value of the security held by us exceeds the value of our claims against the Buyer by more than 10%; the choice of the securities to be released shall lie with us.

(10) In the case of any breach of contract by the Buyer, in particular in the case of any delay in payment with a value of more than 10% of the invoice amount for a not inconsiderable period of time, we shall have the right, without prejudice to any other claims (for damages) we may have, to withdraw from the contract and to demand the return of goods already supplied by us. After repossession of goods previously supplied by us, we shall have the right to dispose of the same. The sale proceeds shall, after the deduction of reasonable costs of sale, be credited towards the amounts owed to us by the Buyer.

Art. 9 Packing

Unless agreed otherwise, all goods shall be supplied in the packing of our choice. Our packing may only be reused for trade if our corporate name, logo, and trademark are rendered illegible.

Art. 10 Protection of Trademark

If goods supplied by us and bearing our trademark are processed, the use of our trademark in connection with the goods so produced shall only be permitted with our express written consent. This shall apply to all phases of processing.

Art. 11 Final Provisions

(1) This contract and the entirety of the business relationship between the Buyer and us shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) which shall not apply.

(2) Where the Buyer is a business person, a legal entity under public law or a separate as-set fund under public law, the place of performance and exclusive legal venue for all disputes arising from this contract shall be Warstein, Germany, unless mandatory statutory regulations require otherwise. However, we also reserve the right to bring

legal action against the Buyer at the courts having jurisdiction for his domicile/seat.

(3) We store data of the Buyer within the context of our mutual business relations in accordance with the provisions of the German Federal Data Protection Law (BDSG).

(4) Should any part of any of these provisions be or become invalid or impracticable or should any gaps be found in them, this shall have no effect on the validity of the other provisions. Any such invalid or impracticable or incomplete provision shall be replaced by one that is complete and admissible and most nearly corresponds to what the

parties would have agreed had they recognised the invalidity, impracticality, or incompleteness.

GENERAL TERMS AND CONDITIONS OF PURCHASE of CONSTAB Polyolefin Additives GmbH, Rüthen

 

1.0 General -Conclusion of Contract 

We shall order goods exclusively on the basis of our General Terms and Conditions of Purchase. Any terms and conditions of suppliers contradicting, or deviating from, our General Terms and Conditions of Purchase shall not become part of the contract even if we have not expressly disagreed with them.

Our General Terms and Conditions of Purchase shall also apply to any future business transactions with the supplier.

Any acceptance of deliveries or services without expressly objecting to the delivery conditions of our contractual partner shall under no circumstances be construed as our acceptance to them.

Purchase orders shall be acknowledged to us within 10 working days upon receipt of the relevant order. Any acknowledgement declared later shall be deemed a new offer.

Contracts of any kind as well as any amendments and supplements thereto shall be made in writing. We shall not be bound by any oral agreement, unless we have confirmed it in writing. In case of a formless business transaction our purchase order shall be deemed a commercial letter of confirmation.

Purchase orders, orders on call as well as any amendments and supplements thereto may also be placed by remote data transmission or by machine-readable data carrier. Our purchase orders are generated by a data processing system and shall be legally effective without having been signed.

These General Terms and Conditions of Purchase shall only apply to persons within the meaning of section 14 of the German Civil Code (BGB).

 

2.0 Offers 

Offers shall be submitted to us without engagement and free of charge. By submitting the offer, the supplier unconditionally accepts these General Terms and Conditions of Purchase.

 

3.0 Delivery 

Any delivery shall be made at the supplier’s risk to the place of destination named by us. Deliveries shall be made to us freight-prepaid and free of costs if not agreed otherwise in writing. The supplier shall complete the delivery documents (letter of conveyance, bill of lading, parcel labels, etc.) with all details in a proper manner and immediately send us a notification of dispatch indicating the number of the purchase order.

To the extent we have to bear freight inwards, we shall only accept them in the relationship with the supplier if the relevant forwarder’s invoice, the dispatching order, the bill of consignment and any accompanying papers required are attached.

In case of doubt, the suitable mode of shipment should be agreed with our forwarding department, in particular if we are to bear the shipping costs as a result of a special agreement.

The goods shall be delivered to us during regular business hours (8:00 a.m. to 2:00 p.m.).

We shall not accept partial deliveries unless they have been expressly agreed. If partial delivery has been agreed, the outstanding quantity shall be indicated.

If goods are delivered earlier than agreed, we shall reserve the right to return such goods at the supplier’s expense.

If goods are delivered before the agreed date and are not returned, they shall be stored at the supplier’s expense and risk until the date of delivery.

 

4.0 Delivery dates 

The agreed dates shall be binding and mandatory. The decisive criterion for compliance with the date or term of delivery shall be the receipt of the goods at the place of destination named by us or the timely availability of the goods for collection if, in deviation of our General Terms and Conditions of Purchase, collection of the goods from the supplier has been agreed.

The supplier shall inform us in writing immediately about any conditions jeopardising timely delivery.

If the supplier delays delivery, we shall be entitled to claim in writing from the supplier late delivery compensation for additional costs incurred by us (e.g. for transportation, insurance, storage, etc.) amounting to 1% for each week or part of a week by which the delivery is delayed, however not exceeding 5% of the total order value. This shall not affect claims for further damages.

 

5.0 Packaging 

The goods shall be packed in a suitable manner to prevent damage during transportation and adverse effects on the environment. If packaging is charged separately, the relevant costs shall be stated separately in the quotation and on the invoice. Packaging shall be charged at cost price. In case of carriage free return we shall be credited at least two thirds of the packaging costs. The return of packaging materials shall be subject to the legal provisions of the German Packaging Regulation (Verpackungsverordnung).

 

6.0 Receipt 

In cases of Force Majeure not attributable to us, including but not limited to natural disasters, rioting, regulatory measures, industrial disputes and operational disruptions causing a reduction of our consumption or preventing us from accepting or collecting ordered goods, we shall be freed from our obligation to take delivery without the supplier being entitled to claim damages. If we are not only temporarily prevented from taking delivery, we shall be entitled under the above conditions to withdraw from the contract.

 

7.0 Payment and Invoicing 

The supplier shall issue an invoice not later than three days following shipment of the goods. Unless agreed otherwise, we shall make payment with 3% discount within 10 days or net within 30 days. The discount period shall commence upon proper arrival of the goods at the place of unloading as agreed and receipt of the relevant invoice.

In case of early delivery of goods we shall set a payment date based on the date of delivery fixed by us.

To prevent late payment, invoices shall always indicate the number of our purchase order and shall always be sent separately, i.e. not together with the goods.

 

8.0 Warranty 

The supplier shall assume warranty as to quality and title in compliance with the legal regulations unless provided otherwise below.

The supplier warrants that he is the full owner of the items under all purchase contracts and that there are no other third-party rights as to these items (including but not limited to liens, other creditor claims resulting from an assignment of a claim or other collaterals, factorisation, hire purchase, conditional sale, etc.).

The documents submitted by the supplier with his quotation, such as illustrations, drawings, dimensions, weights and performance data, shall form part of the contract. The supplier warrants that the goods delivered by him are free from defects, exhibit the guaranteed properties and correspond to the requirements of the purchaser.

Notices of defects for obvious defects made within five days upon delivery and for hidden defects within five days from detection shall be deemed made immediately within the meaning of section 377 of the German Commercial Code (HGB). We shall be entitled to return to the supplier at the supplier’s expense and risk any defective goods, even if the defect is discovered after the goods have been processed, and to set a reasonable period for removing the defect or replacing the goods, upon the expiry of which we shall be entitled to reduce the purchase price or to withdraw from the contract. The right to claim damages, in particular the right to claim damages instead of specific performance, is expressly reserved. If it is not possible to inform the supplier due to the special urgency of the case, about a defect and a pending loss in particular for averting an acute danger or preventing higher damage, and to set even a short period for him to remove the defect himself, we shall be also entitled to remove the defect at supplier’s expense ourselves, have it removed by third-parties or procure replacement goods.

Claims for defects shall become statute-barred after a period of 36 months commencing on the date of delivery and/or service or acceptance where such acceptance has been agreed or is provided by law. This shall not affect any longer legal periods of limitation for claims for defects and the legal period of limitation for guarantees.

For any new parts delivered by the supplier under a remedial action, a new period of limitation shall apply commencing on the date of delivery of such parts where the defect was not a minor one for which the supplier performs only minor rework or provides only minor replacement or the supplier has not expressly and correctly reserved that this remedy is a gesture of goodwill only or is performed to prevent disputes. In case of rework the period of limitation shall be suspended from the notice of defect until the item can be reused again.

If we or our customer, who is an entrepreneur, or any third party, which is an entrepreneur, sell the delivered item to an end-user and if we, our customer or any third party have to take the delivered item back as a result of its defectiveness or the end-user has reduced the purchase price, setting a deadline shall not be required for our rights towards the supplier arising from defects of the item. In this case we shall be entitled, irrespective of any other rights arising from defects we are entitled to, to claim compensation for the expenses incurred by our customer or other sellers within the supply chain in their relations with the end-users according to section 439 paragraph 2 of the German Civil Code (BGB). In this case our claims as to compensation for expenses towards the supplier shall become statute-barred after two years from delivery of the delivered item to our customer. However, in this case the period of limitation of our claims for defects and compensation for expenses towards the supplier shall not commence earlier than two months after the date on which we have fulfilled the claims of the end-user or his consumer. This suspension of expiry shall end not later than five years after the date on which the supplier delivered the item to us.

9.0 Product Liability – Indemnification – Third Party Liability Insurance Cover

If damage is caused by a product defect attributable to the supplier, the supplier shall be obliged to indemnify us against any third-party claims for damages at first request.

The supplier shall be also obliged within the scope of his liability for events of loss in the meaning of the above paragraph to refund any expenses according to sections 683, 670 of the German Civil Code (BGB) or according to section 830, 840, 426 of the German Civil Code (BGB) as may have incurred as a result of, or in connection with, a recall performed by us. We shall inform the supplier about the contents and the scope of recall actions where possible and reasonable and give him the opportunity to comment. Any other legal claims shall remain unaffected.

The supplier undertakes to maintain a product liability insurance cover amounting to EUR 10 million fixed rate per occurrence of personal injury / property damage and provide us with the relevant evidence on our request at any time.

10. Quality Assurance 

The supplier shall be obliged to check the ordered goods prior to their delivery for compliance with the technical specifications, drawings or other provisions in the purchase order or belonging to the purchase order.

To the extent a special quality assurance system is maintained and/or has been established to this end for the ordered goods, the supplier shall grant us the right to access supplier’s premises at any time during the normal operating and business hours upon prior notice and to convince ourselves by inspecting the production process and the testing documents of the existence and the effectiveness of the quality assurance system of the supplier.

11. Violation of Third-Party Property Rights 

The supplier shall inform us about any industrial property rights in the delivered goods that benefit him.

The supplier warrants that the goods delivered by him and their use do not violate any third-party industrial property rights (in particular patents, utility models, registered designs, trademarks, licence rights, etc.) within the Federal Republic of Germany. This shall also apply to third-party rights abroad if the supplier is aware where the supplies and services are intended to be used. If a claim is made against us by one of our customers or other third parties for violation of industrial property rights in connection with the delivered goods or their use, the supplier shall indemnify us against such claims at first request and refund any costs incurred by us as a result of the violation of industrial property rights where attributable to the supplier. We shall not be entitled without the consent of the purchaser to make any arrangement, in particular a compromise, with such a third party. We shall reserve to assert further rights.

The indemnification obligation of the supplier shall cover any expenses necessarily incurred by us from or in connection with a third-party claim attributable to the supplier. The supplier shall be entitled to furnish us proof that no third-party right has been violated in connection with his delivery or that such violation is not attributable to the supplier.

The supplier shall be liable for conformity of the supplies and services provided by him with the valid legal regulations of the Federal Republic of Germany and the recognised technical standards applicable to the relevant delivery status (VCI, DIN standards, etc.). If a delivery is made abroad and this is agreed in the purchase contract, this obligation shall also apply to the relevant foreign legal regulations and technical standards.

The period of limitation for defects of title shall be three years commencing on the date of conclusion of the contract.

12. Secrecy Obligations 

The supplier shall be obliged to use the terms and conditions of purchase orders as well as any information and documents he may be provided with in the course of contract negotiations and following the conclusion of contract only for purposes of fulfilling the purchase order. Moreover, the supplier undertakes to keep secret all information and documents mentioned in sentence 1, unless they are publicly accessible or otherwise of an evident nature. The supplier shall return them to us on request and without delay upon completion of enquiries or the fulfilment of purchase orders. The above secrecy obligation shall remain in effect even if the proposed contract is not concluded or after it has been terminated.

The supplier shall not be entitled without our prior written consent to refer to his business relations with us and show the delivered goods produced for us in his promotional materials, brochures, etc. The supplier shall not use our trademark for advertising or other purposes without having obtained our written consent.

The supplier shall pass this obligation under Article 12 to his sub-suppliers.

We shall be entitled to claim penalties from the supplier amounting to EUR 5,000.00 for each violation by the supplier of the above obligations of the supplier (Art. 12, paragraphs 1 to 3). We reserve any further claims and rights. If we claim damages, any penalty already paid shall be credited as minimum damage.

13. Other Duties of the Supplier 

The supplier shall accept the risk of accidental destruction, loss, deterioration of, or damage to, items we have provided him with for purposes of fulfilling the order, including particularly drawings and samples. The supplier shall be responsible for taking out proper insurance against such risks.

The supplier shall only be entitled to assign duties from this contract to any third party if he has obtained our prior written consent.

The supplier shall be only entitled to assign claims against the ordering party to any third party if he has obtained the prior written consent of the ordering party.

We shall be entitled to claim penalties from the supplier amounting to EUR 5,000.00 for each violation by the supplier of the above obligations of the supplier (Art. 13, paragraphs 1 to 3). We shall reserve any further claims and rights. If we claim damages, any penalty paid already shall be credited as minimum damage.

14. Place of Performance – Place of Jurisdiction – Applicable Law 

The place of performance for supplies and services shall be the place of receipt named by us. The place of performance for payments shall be Rüthen (Germany).

The place of jurisdiction for any legal dispute arising from the contractual relationship between us and the supplier shall be Warstein (Germany).

The contractual relationship between the contracting parties shall be governed by German law to the exclusion of the UN Sales Convention.

15. Final Provisions 

We shall record data of our suppliers within the framework of our mutual business relations in compliance with section 33 of the German Federal Data Protection Act (Bundesdatenschutz.gesetz).

If one or more of the above provisions become invalid or are excluded under a special connection, this shall not affect the validity of the remaining provisions.