General conditions of purchase of HKO Heat Protection Group (hereafter referred to as HKO)

Status 31.03.2016

§ 1 General information – scope

1.1 Our general conditions of purchase apply exclusively to all our orders. Any opposing conditions set by the supplier or conditions that differ from our conditions of purchase will only be recognised if we have expressly approved of their validity in writing.

If the supplier does not accept our general conditions of purchase, we must be informed of this before delivery in writing so that we can come to a mutual agreement on it.

Our general conditions of purchase become part of the contract once the order is accepted. Sales/delivery conditions that suppliers enclose with their quotation or order confirmation or with the delivery, also do not apply if we have not opposed them in writing.

Our conditions of purchase also apply to all future business with the supplier.

If there is a quality assurance agreement between us and the supplier, it takes priority over the terms in these conditions of purchase in case of contradictions or differences.

1.2 Our conditions of purchase only apply towards companies in accordance with § 14 BGB

1.3 Individual agreements finalised between suppliers and HKO in separate contracts take priority over HKO’s conditions of purchase in accordance with § 305b

BGB.

1.4 Our order or other data cannot be used for advertising purposes.

§2  Order acceptance

2.1 HKO’s orders to the supplier take place in writing or in text form (letter, fax, e-mail)

Acceptance of our order by the supplier in accordance with § 148 BGB must reach us within one calendar week from the date of our order, by means of an order confirmation in writing or text form (letter, fax, e-mail). The supplier can only accept our order within this period. After the acceptance period has ended, our order expires in accordance with § 146 BGB

Verbal acceptance of our order or acceptance through coherent action (carrying out the service, delivery, etc.) is ruled out.

2.2 The following data is mandatory in the order confirmation:

–  Supplier number,

– VAT ID,

– Our order and commission number,

– Our item number,

– Supplier’s item number,

– Item description,

– Quantities and prices,

– Indication of binding delivery date.

2.3 Delayed acceptance of our order and acceptance of our order with additions, limitations or other amendments counts as a rejection of our order connected to a new application by the supplier (§150 BGB).

Data that is different from that in our order must be specifically marked as such by suppliers in their order confirmation.

If this new order from the supplier is not accepted by us in writing or text form (letter, fax, e-mail) within one calendar week, our silence counts as a rejection.

2.4 Silence on our part in response to a commercial confirmation letter does not count as consent.

§ 3 Prices & payment conditions

3.1 The price indicated in our orders is binding. The prices agreed on basically apply free delivery/shipping address, including packaging and plus legal sales tax.

3.2 Two copies of invoices must be issued and must include the information mentioned in 2.2. Suppliers are responsible for all consequences arising out of non-compliance with this obligation unless they can prove they are not responsible for it.

3.3 Unless otherwise agreed on in writing, we pay within 14 days with 3 % discount, within 30 days with 2 % discount or within 50 days without a deduction, calculated from the time of receipt of goods and invoice.

We are legally entitled to set-off and retention rights.

§4 Drawings, samples, drafts, etc.

4.1 We reserve the right to ownership and copyright of all illustrations, drawings, calculations, samples, drafts, technical information, factory standards, models and any other documents we provide to suppliers as well as all rights to the properties of the aforementioned documents particularly with respect to the acquisition of industrial property rights and rights to initial or preliminary use of foreign industrial property rights. They cannot be made accessible to third parties without our express prior written approval. All documents must be used exclusively for the manufacture of the parts mentioned in our order. After the order has been processed they must be returned to us without having to ask for them or, in case of a long term business relationship, they must be kept carefully and returned to us upon request. They must be kept confidential from third parties. The terms outlined in § 11.4 apply to this effect.

§ 5 Dispatch, transfer of risk, place of execution

5.1 A delivery note must be included with all purchases. A notification of delivery must also be sent in writing immediately after the goods have been dispatched (e.g. copy of the delivery note by fax). If the goods reach us unannounced, irrespective of whether the delivery takes place on the date agreed on, we reserve the right to charge suppliers with any expenditure incurred.

5.2 The delivery address we have designated is the place of execution for supplies and services.

5.3 Suppliers will bear the risk of loss, of accidental destruction or damage until the supplies and services have been fully handed over at the place of execution (5.2), irrespective of the pricing.

§6 Delivery, delivery time

6.1 The delivery dates mentioned in our orders are relative fixed dates for reaching the destination/delivery address. If the delivery date is exceeded the supplier is still obliged to execute the delivery. In exceptional cases, we reserve the right, in individual contracts and after prior agreement with the supplier, to declare the delivery dates as absolute fixed dates.

6.2 Suppliers are obliged to let us know immediately in writing if they realise that the set delivery date cannot be maintained and a delay in delivery cannot be avoided. Early deliveries generally require our written approval. Otherwise, we are entitled to refuse acceptance of the delivery, to charge any costs incurred and to put the agreed delivery date as the date on the invoice.

6.3 In case of a delay in delivery without prior notification, we are entitled to demand a contract penalty amounting to 0.5% of the delivered value per completed week without setting a subsequent date, but no more than 10 % of the delivered value.

We are obliged to declare the proviso of the contract penalty to the supplier within 10 working days at the latest, calculated from the time of taking over the delayed delivered goods. Legal claims remain unaffected by this.

6.4 Part deliveries are generally not permitted. In individual cases they must be agreed on in writing and clearly marked as a part delivery on the documents.

§ 7 Condition, marking, documents and packaging

7.1 The delivered goods must correspond with the specifications, drawings and other information provided in the order. They must be delivered in such a way that all legal regulations and ordinances are maintained.

7.2 Hazardous substances must be packed and marked in accordance with the applicable laws. The corresponding safety data sheets must be delivered with the goods without having to ask for them. The hazardous goods classification must be indicated on the delivery note.

7.3 A factory certificate must be enclosed with the delivered goods.

7.4 Packaging should basically be multi-purpose packaging and consist of environment friendly materials. Suppliers are obliged to dispose of their waste, packaging, etc. of their own accord and free of cost. If the packaging materials cannot be re-used or disposal by assigning third parties cannot be assured on the part of the supplier, we reserve the right to send the packaging materials back to suppliers at their cost or to charge them for disposing of it ourselves.

§ 8 Inspection of defects – responsibility for defects

8.1 As far as the inspection of defects and obligation to report defects is concerned, the special terms between suppliers and us as laid down in the existing quality assurance agreement apply exclusively. According to this agreement, we are obliged to test quantity and type as well as externally recognisable transport damages and externally recognisable defects.

8.2  If there is no quality assurance agreement between suppliers and us, we are obliged, contrary to § 377 HGB to inspect the goods after delivery (5.2) within a period of two weeks for any deviations in quality and quantity and to notify the suppliers of it. The deadline for notification of non identifiable defects is two weeks from the discovery of the defect. In case of a delivery of a larger number of items and quantities, the checking of random samples when the goods arrive is sufficient for a proper inspection. If more than 5% of the random samples are defective during the inspection, there will be a thorough check of all the delivered goods. Suppliers will be charged for any additional costs incurring from the complete check.

8.3 We are entitled to full legal claims arising out of any defects. In all cases, we are entitled to demand removal of defects or new goods free of defects, as we choose, as long as the removal of defects or the delivery of new goods free of defects does not cost disproportionately more. We exclusively reserve the right to compensation for damages, particularly the right to compensation for damages instead of the service. Changes in the type of material processed or constructive design in particular compared to similar types of delivered goods must be reported to us before production starts and require our written approval. Suppliers will bear the costs and risks of returning the defective goods and of the replacement.

8.4 After consulting suppliers beforehand, we are entitled to charge them for getting rid of defects ourselves or to get third parties to do it for us. We do not have to consult them beforehand, if there is a risk of delay, the work has to be done quickly or suppliers are delaying repair of the defects themselves.

8.5 We can claim defects for a period up to 24 months, calculated from the delivery of the goods unless a longer period of limitation has been legally set. The period of limitation for subsequently improved or replaced delivered goods starts anew for our rights to claim for defects.

8.6 If we or our purchaser, who is a business, or any other third party, who is a business, sells the delivered goods, processed or unprocessed to a consumer, and if we, our purchaser or a third party has to take back the delivered goods (processed or unprocessed) because they are defective, or if the consumer has asked for purchase price reduction, there need not be a set period in which to lay claim to the defects from suppliers. In this case, we can demand the expenses be paid back by suppliers irrespective of rights to claim for defects to which we are otherwise entitled, expenses which we, our purchaser, or any other seller in the supply chain in relationship to the consumer had to bear in accordance with § 439 paragraph 2 BGB.

In this case our claims to compensation for expenditure towards our suppliers have a limitation period of 2 years from delivery of the goods. The limitation period for our claims for defects and claims for compensation of expenditure towards suppliers come into effect 2 months after we have fulfilled the claims of the consumer or our purchaser at the earliest.

This suspended expiry will end 5 years after the point when the supplier has delivered the goods to us at the latest. As long as nothing else has been determined in the above mentioned, the terms of our recourse action in accordance with §§ 478, 479 BGB, and § 478, paragraph 3 BGB in particular, remain unaffected.

§9 Product liability – exemption – liability insurance cover

9.1 If suppliers are responsible for damage to a product, they are obliged to exempt us from claims to compensation for damages from third parties upon initial request, if the cause is to be found in their territory and organisation and they are liable externally themselves.

9.2 Suppliers are also obliged, within the scope of their liability for damages as per 9.1, to grant any expenses as per §§ 683, 670 BGB and §§ 830, 840, 426 BGB that are a result of recalling goods. We will inform suppliers of the content and extent of the recall measures to be carried out – if they are possible and reasonable – and give them an opportunity to take a stand. Further and/or other legal claims remain unaffected by this.

§10 Property rights/ protective rights/ trade mark rights

10.1 Suppliers guarantee that no rights of third parties particularly domestic or foreign industrial property rights will be violated through their delivery.

10.2 If a third party lays claim on us due to a violation of rights as per 10.1, suppliers will exempt us and/or our purchasers from these claims upon our initial written request. We are not entitled to enter into any agreements with the third party without the supplier’s approval, in particular any settlement agreement.

10.3 The supplier’s obligation to exempt us refers to all expenditure accruing to us in connection with the claim by a third party. Costs for any legal disputes in particular, which could ensue in this case, will be solely borne by the supplier.

10.4 The period of limitation for our previously mentioned claims is 10 years, starting with the conclusion of the respective contract.

§11 Reservation of proprietary rights – supply – tools- confidentiality

11.1 If we supply parts to suppliers, we reserve proprietary rights on them. Processing or re-shaping will be carried out for us by suppliers. If the goods we own are processed with objects we do not own, we acquire joint ownership of the new object in relationship to the value of our object (purchase price plus VAT) to the other processed objects at the time of processing.

11.2 If the object supplied by us is inseparably mixed with objects we do not own, we acquire joint ownership of the new object in relationship to the value of the object we have a right to own (purchase price plus VAT) to the other mixed objects at the time of mixing. If the mixing takes place in a way that the supplier’s object is to be seen as the main object, it is agreed that the supplier will transfer joint ownership to us proportionately. The supplier maintains sole ownership or joint ownership for us free of cost. The material provided to the supplier serves exclusively for the user of our order. If the supplied material is not required for our order, it must be returned to us.

11.3 We reserve proprietary rights to tools, gauges, devices or other production goods (means of production). Suppliers are obliged to use the means of production exclusively for the manufacture of the goods we have ordered. Suppliers are obliged to insure the means of production belonging to us at the new value at their own costs against damage by fire and water and theft. At the same time, suppliers will already transfer all claims to damages arising out of this insurance to us now. We hereby accept the transfer. Suppliers are obliged to carry out all inspections and repair and maintenance work on our means of production at their own costs. They must inform us immediately of any malfunctioning. If they deliberately refrain from doing so, our claims to compensation for damages remain the same.

11.4 Suppliers are obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. Third parties may only view them with our express approval. The obligation to confidentiality also applies after this contract has ended. It expires if and in as far as the knowledge of production found in the illustrations, drawings, calculations and other documents becomes commonly known.

11.5 If all security rights we are entitled to according to paragraph (1) and/or paragraph (2) exceed the purchase price of all goods we have a right to by more than 10 %, but are not yet paid for, we are obliged to release the security rights upon the supplier’s request, as we choose.

§12 Goods originating in the EU

Suppliers are obliged to only deliver goods originating in the EU and to provide evidence of this upon request to us and/or to the customs authority. If goods from third countries are delivered, the ordering party must be specifically informed with mention of the country of origin.

§ 13 Safety at work and environmental protection

Suppliers must ensure and observe that all regulations on the environment and safety at work of the Federal Republic of Germany, in their valid versions at the time, are observed and upheld.

§14 Jurisdiction—applicable law – language used – data privacy

14.1 The jurisdiction for claims arising out of transactions with business people is Oberhausen.

14.2 The law of the Federal Republic of Germany applies exclusively to the contractual relationship.

14.3  The language of negotiation and the contract language is either German or English, as per choice. However, suppliers will have to bear the language risk that comes with using English. In case of any doubts, suppliers must be represented by someone well versed in the language.

14.4 We will treat your personal data in accordance with the Federal Data Privacy Act. Storage will only take place for purposes of contract processing. Any passing on of data to third parties outside of contract processing without your express approval will not take place.