General conditions

Terms and Conditions of Sale

Terms and Conditions of Purchase

Status: March 2016

For use in business transactions with entrepreneurs, public law legal entities and public-law special funds.

1. General

Our terms and conditions of sale shall apply exclusively; we will acknowledge buyer’s contradictory terms and conditions or those deviating from our terms only if we expressly approve their validity in writing.

2. Quotation and contract conclusion

2.1 Our offers are subject to alteration without notice and without obligation, unless we have particularly in writing denominated them to be committal. Declarations of acceptance and buyer’s orders, if classified as an offer pursuant to Article 145 BGB (German Civil Code), only take binding effect if we confirm them in writing. We have twelve business days time to accept buyer’s orders from the time of receipt of such order.

2.2 Documents forming part of our offer pursuant to section 2.1, such as illustrations, drawings, etc, and resultant measurement and weight specifications are only indicative, unless we have explicitly in writing designated these to be binding. The same applies to consumption data. We are entitled to manufacture with tolerances customary in the industry within the framework of what is reasonable for the buyer.

2.3. If the manufacture of prototypes/tool models has been agreed, these will be sent to the buyer prior to fulfillment of the order. The finish of the prototypes/tool models shall be binding for the contract if the buyer fails to object in writing inside of two weeks of receipt. We are entitled to refuse contractual fulfillment until the prototypes/tool models have been accepted as binding. Approved prototypes/tool models are also binding for subsequent orders.

3. Documentation/records made available

We reserve all proprietary rights and copyrights to all documents/records made available to buyer in context with placing orders, such as calculations, drawings, etc. Such items may not be made available to third parties without our explicit consent. If we decline to accept buyer’s order within the period stated in paragraph 2, these documents/records will immediately be returned to us.

4. Prices and terms of payment

4.1 Unless agreed upon differently in writing, our prices are quoted ex works, exclusive of packaging and applicable statutory VAT. The costs for packaging will be invoiced separately.

4.2. The purchase price is due for net payment within 30 days. Interest on arrears will be charged as provided by law. Buyer will automatically come into arrears without any overdue notice being required. The right to assert higher claims to compensation for damages caused by delay is reserved.

4.3 If we have undertaken installation, assembly or any other service and nothing has been agreed to the contrary, the buyer in addition to the agreed remuneration shall assume all necessary ancillary costs such as travel and transport expenses.

4.4. Mould and development costs will be charged separately.

5. Offsetting and retention rights

The buyer is entitled to offsetting only if his counterclaims have been legally established or are undisputed. The orderer is entitled to exercise rights to retention only if his counterclaim is based upon the same contractual relationship.

6. Delivery schedules

6.1. Delivery schedules are principally non-committal and approximate. In case of doubt, the delivery period begins at the time we send the order confirmation.

6.2 The observance of deadlines for deliveries is conditional upon timely receipt of all document/records, necessary permits and approvals to be supplied by the buyer, including plans, and observance of agreed payment terms and other obligations by the buyer. If these conditions are not fulfilled on time, the deadlines shall be extended appropriately; this does not apply if we are responsible for the delay. If we manufacture prototypes/tool models, the delivery term shall begin at the time they are approved.

6.3. If failure to comply with agreed delivery deadlines can be attributed to force majeure, e.g. mobilization, war, riots or similar events such as strikes, lockouts, etc, the deadlines shall be extended appropriately. The same applies if we are not supplied correctly or on time by one of our suppliers.

6.4 If we culpably are in default of delivery, the buyer - if he can prove that he has incurred damages as a result - for each full week of delay may demand compensation of 0.5%, however in total no more 5% of the net price for the share of deliveries which could not be placed in serviceable operation due to the delay.

6.5 Any claims for compensation for damages by the buyer due to delayed delivery and claims for compensation for damages in lieu of performance exceeding the limits specified in section 6.4 are excluded in all cases of delayed delivery after expiry of a delivery deadline set for us. This does not apply where liability is compulsory in cases of intent, gross negligence or due to injury to life, limb or health. The buyer may only withdraw from the contract within the framework of statutory provisions to the extent we are responsible for the delayed delivery.

6.6 At our request, the buyer is obligated to declare within a reasonable period of time if he due to the delay in delivery intends to withdraw from the contract or insists on delivery.

7. Passage of Risk

7.1 Delivery is carried out “ex works”, unless we have explicitly agreed differently with the buyer. Unless we have expressly taken over the dispatch or assembly of the delivered object in writing, the risk of accidental loss and accidental deterioration of the goods we supplied therefore passes to the buyer upon handover or collection by the person responsible for transport. The same applies also to partial deliveries.

7.2. Tools are formally accepted at our premises unless agreed upon differently. Buyer’s authorized representative will attend such formal acceptance, the results of which will be recorded in an official acceptance log. Acceptance may not be refused due to insignificant flaws.

7.3 In the event of deliveries with installation and assembly, risk passes to the buyer on the date of acceptance at buyer’s premises or, if so agreed, following flawless trial operation.

7.4 If dispatch, delivery, start, performance of installation or assembly, acceptance into own operations or trial operations are delayed for reasons attributable to the buyer or buyer falls into default of acceptance for other reasons, risk passes to the buyer at the time default in acceptance occurs.

8. Retention of ownership

8.1 We retain title of ownership to the delivered goods until all payments due under the delivery contract have been made. This applies also to all future deliveries even if we do not consistently and explicitly refer to such right. We are entitled to take back the delivered goods if the buyer acts in breach of contract.

8.2. As long as property rights have not yet passed to buyer, he shall be obligated to keep the goods in proper maintenance and condition. He shall be particularly obligated to adequately insure these at his own cost against theft, fire, and water damages at reinstatement value. Buyer will have any required maintenance and inspections conducted in due time at his own cost. As long as property rights have not yet passed, the buyer will immediately notify us in the event of seizures or other interventions by third parties against the delivered goods. If the third party is unable to reimburse to us the judicial and extra-judicial costs of proceedings pursuant to § 771 ZPO (Code of Civil Proceedings), the buyer shall be liable for the losses incurred by us.

8.3 Buyer shall be entitled to resell the delivered goods subject to retention of title in the normal course of business. Buyer here and now assigns to us the receivables from selling the goods subject to retention of title in the amount of the final invoice total (including VAT) of our claim. This assignment is in effect regardless of whether the object of purchase has been resold without or following processing. Buyer shall remain entitled to collect said receivable also after the assignment; this shall not affect our entitlement to collect the account receivable ourselves. However, we engage not to collect the receivable as long as buyer complies with his payment duties from the revenue collected, if he does not fall into arrears of payment and, in particular, if no application for insolvency proceedings has been made and there is no suspension of payments.

8.4 Processing or re-shaping of the object of purchase by buyer shall always be done in our name and on our behalf. In such case, the buyer’s entitlement rights to the purchase item shall continue with the transformed item. If the object of purchase is processed with other objects not belonging to us, we shall acquire joint title to the new object in the ratio of the value of the object of purchase (final invoice amount including VAT) to the other processed objects at the time of the processing. This also applies if the object is blended with others. If the blending is such that buyer’s object is to be regarded as the main object, it shall be deemed agreed that buyer transfers joint title to us pro rata and that buyer shall safeguard the ensuing sole or joint title on our behalf. To secure our claims against the buyer, he already now also assigns to us such claims against a third party which he incurs from blending the goods subject to retention of title with real-estate property; we hereby accept such assignment

8.5 We engage to release the securities accruing to us upon buyer’s request to the extent that the realizable value of our securities exceeds the receivables to be secured by more than 20%.

9. Warranty and claims for defects as well as recourse / manufacturer recourse

9.1 Buyer’s claims for defects shall be conditional upon buyer’s compliance with his duties of examination and notification pursuant to § 377 HGB (German Commercial Code).

9.2 Claims for defects become statute-barred 12 months after delivery to the buyer of the goods we supplied. Goods may be returned to us only with our prior approval. This deadline does not apply where the law pursuant to BGB §438 section 1 no. 2 (buildings and items for buildings), §479 section 1 (right of recourse) and §634a section 1 no. 2 (construction defects) sets out longer deadlines.

9.3 If in spite of all due diligence the goods we supply have a defect which was already incorporated in the part at the passage of risk, we will at our own discretion rework the goods or make replacement delivery, provided claims for defects were asserted in due time. We must always be given an opportunity to make supplementary performance with an appropriate grace period. Rights of recourse shall not in any way be affected by the aforestated regulation.

9.4 If supplementary performance proves a failure, the buyer - regardless of any claims to compensation for damages pursuant to section 9.8 – may withdraw from the contract or reduce remuneration.

9.5 No claims for defects arise in case of merely insignificant deviations from the agreed quality, in case of merely insignificant adverse effects on usability, in case of natural wear and tear or damages arising after passage of risk due to defective or negligent handling, excessive load, unsuitable equipment or as a consequence of particular external influences which are not specified under the contract. If inappropriate modifications or repair work is carried out by the buyer or by third parties, no defect claims shall arise for such or for the consequences thereof.

9.6 Buyer’s claims for necessary expenditures related to the purpose of supplementary performance, in particular transport, shipping, labor and material costs, are excluded if expenditures increase because the goods we delivered have subsequently been shipped to a location other than the buyer’s business site, unless such shipment complies with its normal use.

9.7 Buyer only has rights of recourse against us if the buyer has not entered into any agreements with its customers beyond statutory defect claims.

9.8 Buyer’s claims to compensation for damages for a material defect are excluded. This does not apply to fraudulent concealment of the defect, non-observance of a quality guarantee, injury to life, limb or health or freedom, or to an intentional or grossly negligent breach of obligation by us. Any further buyer claims or claims other than those set out in these GTC for a material defect are excluded.

10. Impossibility, contract adaptation

10.1 If delivery is impossible, the buyer is entitled to demand compensation for damages unless we are not responsible for the impossibility. However, buyer’s claim to compensation is limited to 5% of the value of the share of delivery which cannot be placed in serviceable operation due to such impossibility. This limitation does not apply if liability is mandatory in cases of intent, gross negligence or due to injury to life, limb or health. Buyer’s right to withdraw from the contract is not affected

10.2 If unforeseeable events in compliance with section 6.3 significantly alter the economic significance or the content of the delivery or if they have considerable impact on our operations, the contract shall be amended appropriately in good faith. Where this is not economically feasible, we are entitled to withdraw from the contract. If we wish to exercise this right of withdrawal, we will notify the buyer of such intention immediately after becoming aware of the significance of such event; this applies also if an extension of the delivery time had initially been agreed with the buyer.

11. Other claims to compensation for damages, statute of limitation

11.1 Buyer’s claims to compensation for damages on any legal grounds, in particular due to breach of contractual obligations and unlawful acts, are excluded.

11.2 This does not apply if liability is mandatory, e.g. under the Product Liability Act, in cases of intent, gross negligence, due to injury to life, limb or health or due to breach of essential contractual obligations. Any claim to compensation for breach of essential contractual obligations is however limited to foreseeable damage typical of the contract, unless mandatory liability arises for intent or gross negligence or due to injury to life, limb or health.

11.3 If the buyer is entitled to claims to compensation for damages, these shall become statute-barred upon expiry of the applicable statute of limitation under section 9.2. The same applies to the buyer’s claims in context with damage prevention measures (e.g. product recalls). The statutory limitation regulations apply to claims to compensation for damages under the Product Liability Act.

12. Miscellaneous

12.1. This contract and the entire legal relationship between the parties is governed by the laws of the Federal Republic of Germany excluding the UN-Convention on Contract for the International Sale of Goods (CISG).

12.2 Our legal domicile shall be place of fulfillment. Insofar as the buyer is a merchant, a legal entity under public law or a special fund under public law, the place where our registered office is situated shall be the exclusive place of jurisdiction for all disputes ensuing from the contractual relationship. We are also entitled to bring legal action at the buyer’s legal domicile.

12.3. All understandings and covenants between the parties on fulfillment of this contract have been fixed herein in writing.

12.4. If a clause of these contractual stipulations and any further agreements is or becomes legally ineffective, this shall not affect the validity of the remaining clauses. The contractual parties agree to replace the ineffective clause by an effective clause coming closest in business terms to what the parties had originally intended. This applies analogously also to any legal voids.

Status: March 2016

Applicable in business transactions with business enterprises, legal entities under public law and special funds under public law.

1. General

Our Terms and Conditions of Purchase apply exclusively; supplier’s general business terms and conditions conflicting with or deviating from our Terms and Conditions of Purchase are only recognized insofar as we expressly agreed to them in writing. Any acceptance of supplier goods or services (hereinafter named “subject matter of contract”) or their payment may not be construed to imply acceptance.

2. Contract conclusion and modification

2.1. Orders, acceptance, delivery call-offs, delivery agreements and other legal transactions to be concluded between our company and the supplier as well as their modification and amendment must be in writing. However, orders, acceptance and delivery call-offs may also be done by way of remote data transmission.

2.2. Any inquiries by our company to the supplier are merely invitations to the supplier to submit a quotation.

2.3. Cost estimates are committal and will not be remunerated unless explicitly agreed upon differently.

2.4. The supplier will immediately confirm our order in writing, however by no later than 3 days after he receives such order. In other case, we are entitled to cancel our order.

2.5. To the extent as may reasonably be expected from the supplier, we may insist upon modification of subject matter of contract in terms of design and workmanship. The effects, in particular in terms of higher or lower costs as well as delivery schedules, will be adequately and consensually agreed upon. We must previously approve in writing of any alterations by the supplier for these to become effective.

2.6. The supplier is obligated to review our drawings, calculations, specifications and other requirements for defects and inconsistencies himself in the scope of his general and particular expertise and know-how and to immediately notify us in writing about any concerns and to clarify these.

2.7. The supplier will bear procurement risks for the goods.

3. Delivery schedules, passage of risk, and transport

3.1. The delivery schedules and deadlines stated in the orders or call-offs are committal and binding.

3.2. Unless agreed differently, the delivery will be made DDP Incoterms 2010 to us or to a

destination specified by our company. 3.3. The receipt of subject matter of contract and the shipping papers by our company or the destination specified by our company shall be decisive for compliance with delivery schedules or deadlines.

3.4. If agreed deadlines are not observed, statutory regulations apply. If the supplier encounters difficulties in respect of manufacturing, material supply, adhering to delivery deadlines or similar circumstances which might impair his ability to make delivery on time or in the agreed quality, the supplier will immediately notify us accordingly.

3.5. If our company accepts delayed delivery or services without any reservations, that shall not be construed to be any waiver of claims to compensation for damages due to delayed delivery or service; this shall apply until we have made payment in full of compensation we owe in payment for the affected delivery or service.

3.6. Partial deliveries are principally inadmissible unless we have explicitly agreed to such partial delivery or it is not unreasonable to expect us to accept such partial delivery.

3.7. If the supplier has been contracted for installation or assembly and nothing to the contrary has been agreed, the supplier except where otherwise stipulated will bear all required ancillary costs such as travel expenses, holding tools available.

3.8. Both in case of excess or short deliveries of ordered quantities as well as in the event of deliveries prior to schedule, we reserve the right to refuse acceptance at the supplier’s expense or to adjust the invoice accordingly.

3.9. The supplier will assure appropriate packaging for the goods.

3.10. The supplier assures that the goods do not contain any materials which might fall under the ban of substances as in Directive 2011/65/EC (Restriction of certain Hazardous Substances; RoHS). The supplier also assures that the substances contained in the goods as well as their use(s) are already registered or to not fall under any requirement for registration as defined in Regulation (EC) No. 1907/2006 (REACH) and that, to the extent required, such approval in compliance with the REACH directive has been obtained. To the extent required, the supplier will also prepare a safety data sheet as in annex II of the REACH directive and will submit it to our company. If the supplier delivers goods classified as hazardous materials in accordance with international regulations, the supplier will notify us of such fact at the latest with confirmation of order.

3.11. The supplier will provide all reasonable assistance to us for procuring customs benefits and other governmental benefits and will deliver to us all required certifications and documents, in particular certificates of origin.

4. Force Majeure

Force Majeure, civil unrests, governmental regulatory measures or other unavoidable events for their duration and their scope of effect will relieve us and the supplier from the obligation to provide contractual fulfillment.

5. Prices and payment terms

5.1. The prices are fixed prices. The supplier will separately itemize all ancillary supply costs (customs, packaging, transport, insurance) in his quotation and with the exception of statutory value-added tax and in the absence of any other written agreement will bear these. We must previously approve in writing of any price increases of the subject matter of contract including the ancillary supply costs.

5.2. Unless a different separate agreement has been made, invoices will be paid with a 2% discount within 10 days or without deduction within 30 days as of the payment due date and the receipt both of the invoice and the goods or services. The payment is subject to invoice verification.

5.3. We are entitled to offsetting and retention rights as well as the defense of lack of contractual performance as provided by law. We are in particular entitled to withhold due payments as long as we are entitled to claims against the supplier due to incomplete or defective performance.

6. Notice of defects

We will notify the supplier about any defects at the subject matter of contract within ten weekdays (Monday through Saturday) of finding these in the course of proper business proceedings. In this respect, the supplier waives the defense of late notice of defects. Our obligations to examine for defects and make notification of defects are restricted to verification of the quantities stated in the applicable delivery bills and to inspect for transport damages visible at the time of delivery (visual defects). Apart from that, the obligation to examine for defects and make notification of defects is waived and the supplier explicitly waives the defense of invalid notice of defects as provided in § 377 HGB [German Commercial Code]. Any payments we make shall not be construed to be any acknowledgement of flawless conditions.

7. Warranty

7.1. The supplier owes flawless condition of the subject matters of contract. The supplier shall above all guarantee that the subject matters of contract meet state-of-the-art standards, that they are in compliance with the generally acknowledged statutory technical safety standards promulgated by public authorities and trade associations and are in accordance with applicable legal ordinances.

7.2 Statutory provisions on material defects and defects of title shall apply, except as otherwise agreed hereinafter.

7.3 We are principally entitled to choose the type of subsequent contractual performance. The supplier may refuse the type of subsequent contractual performance if it is necessarily associated with unreasonably high costs.

7.4 In the event the supplier fails to immediately begin to remedy the defect after we made such request, we are in urgent cases - in particular to avert imminent danger or to avoid major damage – entitled to make these repairs at the supplier’s expense ourselves or to have these made by third parties.

7.5 In the event of any defects of title, the supplier will keep us indemnified against any thirdparty claims, unless the supplier is not responsible for the defect of title.

7.6 With the exception of fraud, claims for defects will become time-barred after three years unless the item in accordance with its customary purpose has been used for a building construction and has caused the defect in that building. The period of limitation begins at the time the contract item is delivered (passage of risk).

7.7 For subject matters of contract which were inoperative while the defect was being investigated and/or during remedy of defect, the ongoing warranty period is extended by the time of inoperativeness.

7.8 In the event of replacement or if an improved subject matter of contract has an identical defect or if a defect arises as a consequence of defect repair, the period of limitation will begin anew.

7.9 If our company incurs costs due to defective delivery of subject matter of contract, in particular transport, travel, work, installation, dismantling, and material costs or costs for Incoming inspection exceeding normal procedures and scope, the supplier will bear such costs.

7.10. Any further claims we may have for violation of contract or violation of any other obligations shall be unaffected.

8. Product liability

8.1. In the event action is taken against us based on product liability, the supplier is obligated to indemnify us against such third-party claims if and to the extent such damage was caused by a defect in the items delivered by the supplier. In the event of fault-based liability, this shall apply only if the supplier is at fault.

8.2. In the event sec. 8.1 applies, the supplier shall bear all costs and expenses including costs for any prosecution.

8.3. Apart from that, legal stipulations apply.

8.4. In the event of any recall campaign totally or partially based on a defect in a subject matter of contract delivered by supplier, we will notify the supplier, we will give him the opportunity to cooperate and will interact with him for efficient conduct of such recall campaign unless such supplier notification or cooperation is impossible due to exigent circumstances. To the extent such recall campaign is based on a defect in a subject matter of contract delivered by supplier, the supplier will bear the costs of such recall campaign.

8.5. The supplier is obligated to take out a product liability insurance with adequate coverage and upon request to demonstrate the existence of such policy to us.

9. Providing work

Any persons acting on behalf of the supplier and providing work in fulfillment of contract at our premises or those of a third party acting on our behalf will act in compliance with the applicable plant regulations in effect at our premises or at the premises of the third party acting on our behalf. Any liability for accidents suffered by these persons on the company premises is excluded to the extent these are not caused by intentional or grossly negligent violation of duties by our legal representatives or persons employed in performing an obligation.

10. Furnished equipment / retention of title

Any materials, parts, containers and particular packaging we furnish shall remain our property. This property may be used only for the intended use. Processing of materials and assembly of parts is done on our behalf. The parties are agreed that we incur co-ownership rights in the subject matters of contract manufactured with our furnished materials and parts in proportion of the value of the furnished equipment to the value of the overall product; the supplier will safeguard these for us.

11. Confidentiality

11.1. The contract partners agree to keep as business secret all confidential commercial and technical details of which they become aware in the course of business transactions.

11.2. Drawings, models, templates, samples and other similar items may not be made available or disclosed to third parties; they may be used only fulfillment of contract between supplier and our company and not for any other supplier purposes. Duplication of such items is admissible only as required for business operational reasons and under due consideration of copyrights laws and regulations.

11.3. Subsuppliers will be subjected to identical obligations.

11.4. The contract partners may advertise/publicize their business relationship only with prior written approval.

12. Compliance

12.1. The supplier agrees to comply with applicable laws and regulations on employer/employee relations, environmental protection and occupational safety and to make all effort to reduce any negative impact of his activities on humans and the environment. For this purpose, the supplier to the extent possible will install and develop a management system in accordance with ISO 14001. Furthermore, the supplier will adhere to the principles of the UN Global Compact Initiative. These essentially relate to the protection of internationally proclaimed human rights, the right to collective bargaining, the abolition of forced labor and child labor, the elimination of discrimination in respect of employment and occupation, responsibility for the environment and the elimination of corruption

12.2. Should the supplier repeatedly and/or in spite of a reprimand act in violation of laws and should he fail to demonstrate that the contravention has been remedied to the extent possible and that appropriate measures have been taken to avoid any reoccurrence of such violations, we reserve the right to cancel any existing contracts or to terminate these with immediate effect.

13. Providing and using manufacturing equipment

Any devices, models, samples, drawings or other records/documentation the supplier manufactures based upon our specifications will pass into our ownership after we paid for them. From that point of time, the items are on loan to the supplier. Operational means may be used only for preparing quotations or for completion of ordered subject matters of contract and/or services. Without our prior written approval, these may not be made available to third parties nor may they be used for deliveries to third parties. The supplier will securely store these at no cost and at his own risk and will immediately return these to us at our request. The supplier is not entitled to any rights of retention unless such right to possession has been contractually agreed.

14. Miscellaneous

14.1. Our legal domicile stated in the Commercial Register shall be place of fulfillment for payments.

14.2. The laws of the Federal Republic of Germany apply excluding the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods; CISG).

14.3. Insofar as the supplier is a merchant, a legal entity under public law or a special fund under public law, the place where our registered office is situated shall be the exclusive place of jurisdiction for all disputes ensuing from the contractual relationship.