General Terms and Conditions of Purchase of FMB-Blickle GmbH

Edition: December, 2014

 

I. General - Scope of Validity

1. These general terms and conditions of purchase shall apply to all deliveries and services (hereinafter referred to as "Deliveries") provided by a seller, a work performing or a work commissioning party (hereinafter referred to as "Supplier") on behalf of FMB-Blickle.

2. Our terms and conditions of purchase apply exclusively; we shall only recognize the supplier´s general terms and conditions that conflict with or deviate from our conditions of purchase to the extent that we have expressly agreed to them in writing. Furthermore, our terms and conditions of purchase apply exclusively even when we are aware that the supplier´s own terms and conditions contradict or deviate from our own and we accept a delivery from that supplier unconditionally.

3. Our terms and conditions of purchase apply only for companies, public law bodies or public special funds as defined by section 310 (1) of the German Civil Code (BGB).

4. Individual agreements reached with the supplier in individual cases (including side agreements, additions and amendments) shall in all cases have precedence over these terms and conditions of purchase. A written contract or our written confirmation shall be decisive for the contents of such agreements.

5. Legally relevant declarations and notifications, which are to be submitted towards us by the supplier after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of cancellation), require the written form in order to be valid.

II. Quote and Quote Documentation

1. Quotes must be free of charge. Preparatory costs (such as plans and travel) will be borne by the supplier.

2. Quotes and order confirmations should contain the information prescribed by us, in particular our inquiry or order number, article number and the name of the contact.

3. An order shall come into effect through our written order and the prompt confirmation by the supplier. If the supplier does not accept within three working days after receipt of the order, we shall be entitled to withdraw from the contract without any claims of any kind being asserted against us as a consequence for whatever legal reason.

4. We shall retain the right of property and copyright to illustrations, drawings, calculations, samples, specimens, data carriers and other documents; they must not be made available to any third party without our express written approval. Said documents must be used for our purposes only and must be returned to us upon written request, at the latest, however, upon fulfilment of the order and without request. They have to be concealed from third parties; in this respect the provision of section IX.4 and IX.5 shall also apply. The supplier does not have any retention rights to these documents.

III. Prices - Terms of Payment

1. The price shown in the order shall be binding. All prices must be indicated in EURO; invoices must be made out in EURO, too. In the absence of any other written agreement, the price shall include packaging, material inspection certificates to the valid standard, certificates of origin and other approvals such as CE, CSA, UL marks and delivery free of charge and duty paid to the delivery address. We reserve the right to return packaging material to the supplier at the latter´s expense. Unless otherwise agreed, the price includes all of the supplier´s services and ancillary services (e.g. assembly, installation) and all additional expenses (e.g. transport costs including transport and third-party liability insurance).

2. Invoices can only be processed, if they contain – in accordance with the specifications of our order – the order number shown on our order form, our material number, the amount or quantity delivered, the price and any other information required for our processing of the order; the supplier shall be liable for all consequences arising from non-compliance with this obligation, unless he is able to prove that he is not responsible for these consequences.

3. We shall be entitled to pay as follows as we choose:
Invoices with an invoice date from the 1st to the 15th of a calendar month shall be paid on the 8th of the following month, counted from delivery and receipt of invoice, with a 3% cash discount.
Invoices with an invoice date from the 16th to the 31st of a calendar month shall be paid on the 22nd of the following month, counted from delivery and receipt of invoice, with a 3% cash discount.
Within 60 days after receipt of goods and invoice net.

4. Even if we have not rejected advance deliveries, we are entitled to defer the invoices until the agreed delivery date. In this case, the discount periods are accordingly carried over to be valid from the agreed delivery date. Our payments mean neither approval of the goods nor a service contract inspection.

5. We are entitled to the right of set-off and detention to the legal extent. We are particularly entitled to retain due payments as long as we still hold claims against the supplier arising from incomplete or faulty deliveries.

6. The supplier shall only be entitled to any set-off and/or retention right if his counterclaims are found absolutely, are undisputed or are ready for a decision in any proceedings pending at law.

7. The supplier shall not be entitled to relinquish his claims from this contractual relationship to third parties. This shall not apply to pecuniary claims.

IV. Delivery Dates and Times

1. The delivery time indicated on our order is binding.

2. The supplier is obliged to inform us immediately in writing if any circumstances occur or become apparent to him that indicate the impossibility to meet the delivery date. This notification does not release the supplier from his obligation to deliver punctually.

3. In the event of delay in delivery we shall be entitled to statutory claims. The provision set out in section IV.4 remains unaffected.

4. In the event of a delayed delivery, the supplier shall be obliged to pay us a contractual penalty. For each week that expires in which the delay continues the compensation shall be 1%, in total however, at most 5% of the total net amount of the consignment. We reserve the right to claim a payable contractual penalty up until the time of final payment even if we have not expressly reserved the right to do so when accepting the delayed delivery. The contractual penalty shall be set off against the damages for delay to be paid by the supplier. This agreement pertaining to the contractual penalty or enforcement thereof shall not affect any justified legal claims for a delay in delivery.

V. Transfer of Risk – Documents – Force Majeure - Cancellation

1. Delivery conditions shall be free domicile to the delivery point specified in our order. If the place of destination has not been stated and nothing else has been agreed, the shipment shall be to FMB-Blickle business location. The place of fulfilment for the delivery is the respectively determined location. If an acceptance procedure has been agreed on, this is authoritative for the passing of risk.

2. A delivery note stating the date (issue and dispatch), content of the delivery (article number and quantity) as well as purchase order identifier (date and number) and the name of the responsible employee or contact person must be enclosed with the delivered goods. If the delivery note is missing or incomplete, we shall not be responsible for delays in processing and payment resulting from this.

3. In the event that the non-compliance of an acceptance or inspection by us is due to force majeure, industrial disputes or any other unforeseeable events, which are outside the sphere of our influence, we shall be entitled to delay the delivery or a part thereof to a reasonable time, which is later than that agreed without the supplier being able to derive any claims from this. If these circumstances continue for more than six months, each of the parties shall be entitled to rescind from the contract. In this respect again no contracting party shall be entitled to assert any claims against the other contracting party.

4. In case of an existing substantial reason, both parties shall have the right to terminate the contract without observing a period of notice. A substantial reason is deemed to exist if there are facts, on account of which the terminating party under consideration of all circumstances of an individual case and by weighing the interests of both parties thereto, cannot be expected to continue the contract until the end of the regular contract period.

5. We shall be entitled to suspend an individual purchase order for three months by submitting a written declaration to the supplier. The supplier shall not be able to derive any claims for compensation against us from this. The stipulated delivery period shall be extended according to the period of suspension.

6. Notwithstanding section V.4 we shall be entitled to terminate the contract at any time with immediate effect without stating reasons. Provided that the cancellation is not effected due to a substantial reason for which the supplier is not responsible, we shall pay a partial remuneration to the supplier for the partial performance which has been rendered and evidenced up to the date of notice of termination; the rights in the partial performance shall be transferred to us.

VI. Liability for Defects

1. Insofar as applicable, the statutory provisions (section 377 of the German Commercial Code (HGB)) apply for the commercial obligation to inspect and to give notice of defects, subject to the following conditions: Our obligation to inspect is restricted to apparent defects which can be visually identified (for example transport damages, wrong and short delivery). The obligation to inspect does not apply if acceptance is agreed for the delivery. Otherwise it must be considered to which extent an inspection is advisable and feasible in the normal course of business taking the circumstances of the individual case into account. Our obligation to give notice of defects discovered at a later point of time remains unaffected. Our complaint (notice of defects) is considered to be prompt and timely in any event, if the complaint is serviced to the supplier within a period of 10 working days.

2. The supplier is obliged to carry out a pre-delivery inspection meeting the same requirements as the incoming inspection demanded by us according to section 377 of the German Commercial Code (HGB).

3. We shall be entitled to the statutory defect claims without restriction; in any case we shall be entitled to ask the supplier for repair of the defect or for delivery of new goods as we so choose. In this event the supplier is required to bear all expenses required in order to eliminate the defects or provide a replacement delivery. The right to claim for damages, particularly for non-performance, remains explicitly reserved.

4. If the supplier fails to comply with his obligation to render subsequent performance within an appropriate time limit set by FMB-Blickle, FMB-Blickle may undertake the necessary measures itself at the expense of the supplier or commission a third party to carry out the same. If the subsequent performance by the supplier has failed or is not reasonable for us (e.g. because of particular urgency, a threat to the operating safety or impending occurrence of disproportionate damage), there shall be no need to set a deadline. The supplier must be informed without delay, as far as possible in advance.

5. The limitation period for defect claims is 36 months from the day of transfer of risks.

6. Upon receipt by the supplier of our written defect notification, the statutory limitation of defect claims is inhibited. The limitation period starts anew for replaced and improved goods from any replacement deliveries and defect corrections, unless we must assume from the behavior of the supplier that he does not admit that he is obliged to these measures and is only undertaking the replacement delivery or defect corrections as a gesture of good will or a similar reason.

7. In cases where repair/maintenance work must be provided by the supplier, we always require a formal acceptance thereof.

VII. Product Liability – Indemnification – Liability Insurance Protection

1. Insofar as the supplier is responsible for damage to any product, he shall be obliged to indemnify us upon first request from all damage claims of third parties; this applies to that extent that the cause is to be found in his area of management and organisation and he himself is responsible in external relationships.

2. Within the framework of his liability for cases of damage within the meaning of section VII.1 the supplier shall also be obliged to reimburse any expenses arising from or in connection with a recall of defective products conducted by us or our client. We shall notify the supplier insofar as possible and reasonable about the content and extent of the recall measures to be performed and shall give him an opportunity to comment. Other statutory claims shall not be affected by this.

3. The supplier shall take out product liability insurance with a reasonable insured sum for personal injury and property damage, at least 5 million Euros; any additional claims to which we are entitled shall not be affected. The supplier shall, on request, be required to produce suitable proof that this insurance cover has been taken out and is still valid.

VIII. Property Rights

1. The supplier ensures that in connection with his delivery no rights at all of third parties will be violated.

2. If claims are asserted against us by a third party due to such infringement, the supplier shall be obliged to indemnify us from these claims; this does not apply if the supplier is not responsible for infringement of third party rights. We are not entitled to conclude any agreements with the third party – in particular to make a compromise – without the consent of the supplier.

3. The duty of the supplier to indemnify shall refer to all expenses we sustain arising from or in connection with the assertion of third party rights.

4. Statutory period of limitation for these claims is 36 months, starting from the day of transfer of risks.

IX. Reservation of Ownership – Provision – Confidentiality - Subcontractor

1. If goods provided by us are inseparably mixed with other goods which are not our property, we shall acquire co-ownership rights in the new product at the value of the goods subject to retention of title (purchase price plus value added tax) in proportion to the other mixed goods at the time of mixing. If the goods are mixed in such a manner that the supplier´s item is regarded as the main item, the parties hereby agree that the supplier shall transfer proportionate co-ownership to us; the supplier shall hold the sole ownership or co-ownership on our behalf.

2. To the extent our collateral rights as defined in this section exceed the purchase price of all our conditional commodities not yet paid by more than 10%, we are, upon request by the supplier, obligated to release the collateral rights at our discretion.

3. Tools, devices and models that we put at the disposal of the supplier or that are manufactured for contractual use and are invoiced separately to us by the supplier remain our property or are passed on to our property. They have to be marked by the supplier as our property, to store with care, to be protected against damages of any kind and to use them only for purposes of the contract. Upon request, the supplier is obliged to hand these objects over to us in proper condition; the supplier shall have no right of retention in this respect.

4. The supplier shall be obligated to handle all illustrations, drawings, calculations and other documents and information received from us with strict confidentiality; the same shall apply to all of our business and trade secrets. They may only be disclosed to third parties with our explicit consent. The obligation to maintain confidentiality also applies after the execution of this contract; it becomes invalid if and when the knowledge shown in the transferred illustrations, drawings, calculations and other documents has become common knowledge.

5. The supplier shall be obliged to regard all commercial and technical details concerning the contract concluded with us as business and trade secret and to handle them strictly confidential. The supplier is furthermore required to maintain silence about the business relationship with us. Any exceptions shall require our prior written consent.

6. Both the supplier and FMB-Blickle are entitled to record and save each other´s data including the information pertaining to the individual contractual relations in accordance with the current valid data protection provisions.

7. The supplier shall not be entitled, without our prior written consent, to have third parties (e.g. subcontractors) carry out the service for which he is responsible. In case we accept that the service is rendered by such a third party, the supplier shall obligate his subcontractor to confidentiality in writing as defined in sections IX.4 and IX.4; upon request, the supplier shall send us a copy of the obligation to maintain secrecy.

X. Spare Parts – Electronic Equipment Act

1. Unless otherwise agreed, the supplier shall be obliged to keep spare parts for the products delivered to us for a period of 15 years after delivery.

2. Should the supplier intend to stop the production of spare parts for the products delivered to us, he must inform us in writing immediately after making the decision. The decision must – notwithstanding section X.1 above - be made at least 6 months before the production is stopped.

3. Where the contractual products fall within the scope of the German law regarding the placing on the market, return and environmentally sound disposal of electrical and electronic devices, the supplier is deemed to be the manufacturer within the meaning of that provision and shall fulfill his obligations associated with the return of the devices; this applies in particular to the registration of the manufacturer with the appropriate authority. We shall be entitled to pass the registration number to our end customer.

XI. Certificate of Origin / Supplier´s Declaration

The supplier is obliged to provide us immediately with certificates of origin, supplier´s declarations, statistical goods numbers or preference certificates and any further documents and data in accordance with the pertaining external trade requirements.

XII. Jurisdiction – Place of Fulfilment

1. These terms and conditions of purchase and all legal relationships between us and the supplier shall be bound by and construed in accordance with the substantive law of the Federal Republic of Germany excluding the United Nations Convention on the International Sale of Goods (CISG).

2. If the supplier is a registered merchant, a public law legal entity or public law special fund, the exclusive place of jurisdiction for all disputes arising from the contractual relationship is our place of business. We shall, however, also be entitled to bring actions in the place of fulfilment for the delivery commitment or at the supplier´s Location.