General Purchasing Conditions

General Purchasing Conditions

of EUTECT GmbH
as at June 2016

EUTECT GmbH, Filsenbergstr. 10, 72144 Dusslingen, Germany

1. SCOPE

EUTECT GmbH (hereinafter EUTECT) procures all goods and services from entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) (hereinafter Suppliers) only on the basis of the following General Purchasing Conditions. Supplementary and deviating terms and conditions of business of the Supplier are not recognised. This applies even if EUTECT unreservedly accepts goods and services or pays invoices knowing that the Supplier has contrary or deviating terms and conditions.

2. ORDER PLACEMENT AND TECHNICAL DOCUMENTATION

2.1. Purchase orders, agreements and changes are only binding if they are issued or confirmed in writing by EUTECT. Agreements made verbally or over the phone require subsequent written confirmation in order to be legally valid. The same applies to verbal side agreements and changes to the contract.
Purchase orders, call-offs as well as changes and supplements thereto, provided they are required by us, can also take place by means of remote data transmission, e.g. via e-mail, or on machine-readable data media.

2.2. Fees are not granted for visits or for the drawing up of offers, projects, etc.

2.3. For materials (substances, preparations) and items (e.g. goods, parts, technical equipment, non-cleaned empties), which due to their nature, characteristics or condition could pose risks to the life and health of people, to the environment and property and which therefore, based on regulations, must be given special treatment in relation to packaging, transport, storage, handling and waste disposal, the Supplier must provide with the offer a fully completed safety data sheet in accordance with section 14 of the German Ordinance on Hazardous Substances and an appropriate accident procedures sheet (transportation).
In the event of changes to material or the legal situation, the Supplier is obliged provide updated data sheets and procedures sheets to EUTECT.

2.4. EUTECT is entitled to demand changes to the subject matter of the contract, also after it has been concluded, provided this is not unacceptable for the Supplier. In the case of changes or orders, the effects on both parties must be given due consideration, especially in terms of additional or reduced costs.

2.5. In the event of contradictions in the documents provided, the data on the drawing shall apply in the case of doubt.

3. DELIVERY DUE DATES, TRANSFER OF RISK AND FRAMEWORK AGREEMENTS

3.1. The delivery or execution date specified in the EUTECT purchase order is the relevant date. It represents the delivery date at the place of destination. A different delivery date is only permissible if approved by EUTECT.

3.2. EUTECT is not obliged to accept partial deliveries and/or advance deliveries or advance execution of works.

3.3. If circumstances occur or the Supplier becomes aware of circumstances as a result of which the agreed delivery or execution date cannot be complied with, the Supplier is obliged to inform EUTECT immediately in writing while stating the reasons and the expected delay.

3.4. In the event of a delay in delivery, EUTECT is entitled to demand a contractual penalty in the amount of 0.5% of the delivery value for each full week of delay, but not, however, more than 5% of the net delivery value. EUTECT is entitled to assert a contractual penalty in addition to the fulfilment. EUTECT undertakes to declare the reservation of contractual penalty to the Supplier within 10 working days at the latest, counting from the date on which the delayed delivery was accepted. Further claims and rights are reserved.

3.5. The Supplier may only invoke the absence of necessary documents, data, supplies, and so forth, to be provided by EUTECT if the Supplier sent a written reminder about these and did not receive them within a reasonable time period.

3.6. If the agreed due date is not complied with due to circumstances for which the Supplier is responsible, EUTECT shall be entitled, after a reasonable extension period set by it has expired without delivery, to elect to demand compensation on account of nonfulfilment, to procure replacement from a third party, or to withdraw from the contract.

3.7. In the event of delivery that is earlier than agreed, EUTECT reserves the right to return the delivery at the cost of the Supplier. If no return is made in the event of early delivery, the goods will be stored at EUTECT until the delivery date at the cost and risk of the Supplier. In the event of early delivery, EUTECT reserves the right to only make the payment on the agreed due date.

3.8. Unless otherwise agreed, DDP applies according to the current Incoterms, as amended. The Supplier must heed EUTECT’s specifications for the shipping of products, especially the applicable transport, packaging and delivery regulations.

4. FEES AND PAYMENT TERMS

4.1. The agreed prices are fixed prices. They include all services and ancillary services, provided these are not remunerated separately, that are required for complete performance, e.g. costs for tools, freight, customs, packaging material and removal thereof, transport to the place of use appointed by EUTECT, as well as all expenses involved in carrying out the setup and assembly work such that the product or service is ready for operation. Deviations such as, for example, particular complications or delivery/provision of services on Sundays and bank holidays, which may result in higher remuneration, must be agreed separately before acceptance of the order.

4.2. The order data (contractual purchase order numbers) must be stated on the invoices drawn up.

4.3. Payment shall be made by EUTECT within 14 days less a 3% discount or 60 days net. The payment period starts, at the earliest, upon receipt of the invoice, however not before goods receipt or assembly or setup.

4.4. The offsetting of a Supplier claim against EUTECT claims is only permissible if the Supplier’s claim is recognised by us, is undisputed or was established in law, unless the Supplier claim proposed for offsetting comprises costs for eliminating defects or completion costs or compensation claims arising out of the same legal relationship from which the EUTECT claim arose.

4.5. The assignment of claims arising out of this contractual relationship is only permitted following the prior written consent of EUTECT. There is no entitlement to the granting of such consent. Section 354a of the German Commercial Code (HGB) remains unaffected.

5. LIABILITY FOR DEFECTS

5.1. Section 377 of the German Commercial Code (HGB) is waived.

5.2. The Supplier is obliged to perform quality control during production and to inspect outgoing goods and must, accordingly, comprehensively check the quality of the deliveries.

5.3. Unless agreements to the contrary have been made in individual cases, the warranty period is 36 months from the time of handover of the end device to the end customer. EUTECT shall be entitled to statutory claims for defects in full; in any case, EUTECT shall, at its discretion, be entitled to demand from the Supplier either elimination of the defects or delivery of a new item. The right to compensation, especially to compensation instead of performance, remains expressly reserved.
From the date of receipt of the notice of defects, the limitation period shall be suspended until such a time as the Supplier provides a declaration to us that the defect has been eliminated or refuses to eliminate the defect(s). For repaired or replaced parts, the warranty period starts anew from the date of repair or return of the repaired parts or the date on which the replacement delivery was made.

5.4. To stave off an acute risk of considerable damage, EUTECT can, without giving the Supplier warning or setting a time limit, repair the defect itself, have the defect repaired or procure a replacement all at the cost of the Supplier, if, on account of particular urgency, it is no longer possible to inform the Supplier about the defect and the imminent damage and to give the Supplier the opportunity for redress. If EUTECT eliminates the defect itself, the associated costs will be invoiced to the Supplier. In addition to a lump sum, the currently applicable hourly rates and any necessary material without overhead surcharges will be billed.

5.5. If a serial defect occurs during the warranty period, the Supplier must bear the cost of replacement. A serial defect is deemed to occur when at least 33% of the delivered items of a type or batch exhibit the same defect. Such items that are already outside of the warranty period must also be included in the exchange. Spare parts and wear parts as well as cases in which the German Product Liability Act applies are excluded from this.

6. LIABILITY; PRODUCT LIABILITY; INDUSTRIAL PROPERTY RIGHTS OF THIRD PARTIES

6.1. EUTECT shall be liable to pay compensation for damages and for futile expenses within the meaning of section 284 of the German Civil Code (hereinafter “compensation”) on account of defects or on account of breach of other contractual or extracontractual obligations, especially tortious actions, only in the case of intent or gross negligence. The above liability restriction does not apply in the event of injury to life, limb or health, in the case of the acceptance of a warranty or procurement risk, in the case of the breach of essential contractual obligations as well as in the event of liability in accordance with the German Product Liability Act.

6.2. Compensation on account of the breach of essential contractual obligations is limited to compensation for contract-typical damages that EUTECT, based on circumstances recognisable to EUTECT, would have had to have foreseen as a possible consequence at the time of conclusion of the contract, insofar as there is no intent or gross negligence or insofar as no liability exists on the basis of injury to life, limb or health, the acceptance of a warranty or procurement risk, as well as in accordance with the German Product Liability Act.

6.3. Essential contractual obligations within the meaning of points 6.1 and 6.2 are such obligations whose fulfilment is a prerequisite for enabling the proper fulfilment of the contract in the first place and on which the customer regularly relies.

6.4. Contract-typical, foreseeable damage within the meaning of 6.2 comprises:

a) per claim: Damages up to a maximum of the net remuneration for the contract in question.
b) per calendar year: Damages up to a maximum of the net sales value at which the customer procured products or services from EUTECT in the previous calendar year. In the first year of the contract, compensation up to a maximum of the net sales value at which the customer had procured services from EUTECT up to the occurrence of the claim. In any case, typical contractual damages within the meaning of point 6.2 do not comprise indirect damages (e.g. lost profit or damages that result from production stoppages).

6.5. Irrespective of point 6.3, when establishing an amount that EUTECT must pay the customer as compensation, the economic circumstances of EUTECT, the type, scope and duration of the business relationship, any contributions to the cause and/or fault on the part of the customer in accordance with section 254 of the German Civil Code and a particularly unfavourable installation situation of the contractual object must be given adequate consideration to the benefit of EUTECT. In particular, the compensation payments, costs and expenses that EUTECT has to bear must be commensurate with the value of the contractually agreed service.

6.6. All limitations of liability apply to the same extent for the vicarious agents and assistants of EUTECT.

6.7. The above provisions to not entail a change to the burden of proof to the disadvantage of the customer.

6.8. If a claim is made against EUTECT on account of a product defect, the Supplier is obliged to indemnify EUTECT against these compensation claims, insofar as the supplier has legal liability for this damage in relation to third parties. Within the scope of its liability for claims within the meaning of the above sentence, the Supplier is also obliged to reimburse any expenses that arise from or in connection with a recall carried out by EUTECT. The Supplier will be notified of the content and scope of the recall measures to be carried out and the Supplier will be given an opportunity to make a statement. Other statutory claims remain unaffected. The Supplier undertakes, at least during the period of limitation, to maintain product liability insurance for any claims arising due to product liability as well as for any claims for defects at an appropriate level of cover of at least EUR 5 million per personal injury claim/property claim – across the board – and to provide evidence of this to EUTECT upon request; further compensation claims on the part of EUTECT remain unaffected.

6.9. The Supplier indemnifies EUTECT against claims by third parties on account of breach of intellectual property rights such as patent rights, copyright or trademark rights, insofar as the Supplier or its vicarious agents or assistants were culpable in causing the damage. The contracting parties shall notify one another immediately if claims are made against them on account of breach of intellectual property rights.

7. OCCUPATIONAL SAFETY / ENVIRONMENTAL PROTECTION

7.1. All deliveries must comply with the laws, regulations and other provisions that apply at the headquarters of EUTECT. The Supplier is obliged to execute the contract in such a way that environmental protection, accident prevention and occupational safety regulations (also the rules and regulations of the German Employer’s Liability Insurance Association) as well as the generally accepted technical safety and occupational health rules are complied with.

7.2. The Supplier undertakes, at the request of EUTECT, to provide samples of the materials/tools that is uses for the purpose of inspection and to do so free of charge. The Supplier shall bear the costs of this inspection if it transpires that the material/tools that it used are not in compliance with the contractual terms and conditions. EUTECT reserves the right to assert claims for damages.

8. HAZARDOUS AND DECLARABLE SUBSTANCES
If the goods to be supplied are hazardous substances within the meaning of the German Chemicals Act, safety data sheets pursuant to Directive 91/155/EEC must generally be included with the shipment. Directly after a revision of this data, the Supplier must send the modified version to EUTECT without being specifically requested to do so.

9. CONFIDENTIALITY

9.1. The parties are obliged to keep all information that becomes accessible to them, that is marked confidential or, according to other circumstances is recognisable as trade or company secrets, confidential for an unlimited period of time and are obliged not to record, disseminate or utilize this information, unless it is provided for the contractual relationship.

9.2. The parties shall ensure, by means of suitable contractual agreements with the employees and agents that work for them, that these employees and agents shall also refrain from any utilisation, dissemination or unauthorized recording of such trade or company secrets for an unlimited period of time. The Supplier is only permitted to indicate its business relationship with EUTECT in its advertising if EUTECT has agreed to this in writing beforehand.

10. PRODUCTION MATERIALS (MODELS, TEMPLATES, TOOLS, ETC.)

10.1. Insofar as EUTECT paid for production materials in full or in part, the Supplier transfers ownership to EUTECT upon payment for the production material. Handover is replaced with a lease agreement that is hereby agreed and on the basis of which the Supplier is entitled to hold the production material until further notice.

10.2. The costs for the maintenance, servicing and replacement of parts of the production material shall be borne by the Supplier.

10.3. These production materials may only be changed following prior written approval by EUTECT. They must be stored separately and EUTECT’s ownership must be made identifiable on the production material itself and in the Supplier’s accounting records. They must not be used for the Supplier’s own purposes or made accessible to third parties. If the production material costs more than EUR 10,000.00, the Supplier must insure the production material at its own expense for the new price against damage by fire, mains water, storm, hail and against theft and vandalism. Unless otherwise agreed and provided the Supplier does not have current purchase orders to fulfil, the Client can demand return of the production materials at any time. The Supplier does not have any right of retention.

11. SUPPLY OF SPARE PARTS

11.1. The Supplier undertakes to be able to supply spare parts for a period of at least 10 year after the last delivery.

11.2. If individual components are discontinued by the Supplier or its sub-suppliers, EUTECT must be informed of this immediately in writing. EUTECT will then, with a notice period of 3 months, be given the right to place a final purchase order (coverage of the remainder).

12. INTEGRITY CLAUSE

12.1. EUTECT and Supplier undertake to take all necessary measures to avoid corruption. The Supplier shall in particular, by means of organisational measures and instructions to its employees, ensure that it or its employees in their business dealings with the Client

a) shall not commit any criminal offences,
b) shall not offer any bonuses or other benefits to the Client’s employees
c) shall not instigate third parties to perpetrate the above acts or provide them with assistance to do so.

12.2. In the aforementioned cases, the Client shall be entitled to extraordinary termination of the contract without notice and can exclude the Supplier from the future assignment of orders.

12.3. The Supplier undertakes to comply with the respective statutory regulations for dealing with employees, environmental protection and occupational safety and to work on reducing adverse effects on humans and the environment when carrying out its activities. Furthermore, the Supplier shall abide by the principles of the UN Global Compact initiative. These essentially pertain to the protection of international human rights, the right to collective bargaining, the abolition of forced labour and child labour, the elimination of discrimination during appointment and employment, responsibility for the environment and prevention of corruption. Further information on the UN Global Compact initiative is available at www.unglobalcompact.org.

13. DOCUMENTATION

The Supplier shall provide all documents that are part of the delivery (operating instructions, maintenance plans, drawings, dimension and data sheets, spare parts lists, etc., as relevant) to EUTECT in electronic form and in at least German and English.

14. PLACE OF FULFILMENT; PLACE OF JURISDICTION AND APPLICABLE LAW

14.1. The contractual relationships are subject solely to the law of the Federal Republic of Germany, excluding conflict of law provisions. The German wording is always authoritative for the interpretation of contracts.

14.2. The place of fulfilment for deliveries and payments is the registered office of EUTECT.

14.3. The sole place of jurisdiction for all present and future claims arising out of business relations with merchants, including claims based on bills of exchange or cheques, shall be Tübingen. The same place of jurisdiction applies if the customer does not have any general place of jurisdiction in Germany or moved its place of jurisdiction outside of Germany after the contract was concluded. EUTECT is also entitled at its option to bring an action at the headquarters of the customer.