1. Validity and the Requirement for written form

 

a) The goods and services of KREMPEL GmbH, of KREMPEL GmbH & Co. Pressspanwerk KG and of Krempel Isolierteile GmbH & Co. KG are supplied / rendered on the basis of the following terms and conditions of supply and payment alone (“General Terms and Conditions of Supply and Payment (L 2008)“).  Goods and services may only be supplied / rendered under terms and conditions differing from the above in those cases in which the parties to the contract have agreed such terms and conditions expressly and in writing.  Terms and conditions of business to the contrary - in particular the terms and conditions of purchase of our Buyer - are hereby expressly rejected.

 
b) The terms and conditions shall apply not only for the supply business but also for the finishing business.

 

c) Any personal data which may have been notified by the Buyer is to be processed by us in keeping with the proper business operations for the purposes of carrying out the contractual relationship in accordance with § 28 I No 1 of the Federal Data Protection Act [BDSG].

 

 

2. Order

All orders shall be subject to written confirmation by us.  The contract shall only materialise once it has been confirmed.  It shall be the content of the order confirmation alone which is definitive.  Verbal agreements, agreements made over the telephone and telegraphic agreements shall only be binding in those cases in which they have been confirmed in writing subsequently, unless it is expressly agreed in a given instance that they shall be binding per se. 

 

 

3. Supply

a) For all performances we shall be entitled to exceed or fall up to 10% below the specifications.  We shall also be entitled to supply more or less than the ordered amount for orders based on notified defects, the supply of replacements, and in similar cases. 

 

b) The standard regulations valid for the product concerned shall apply for discrepancies in terms of dimensions.

 

C) We shall only be under obligation to supply to the extent that our suppliers supply us with the correct goods and on time and we shall not be responsible for any delay there may be on the part of our suppliers.

 

4. Packing

 

a) We shall invoice all packages at cost.  We shall reserve the right to decide which type of packing to use. 

 

b) We shall take back transport packing for commercial transactions within Germany to the works (place of fulfilment) stated in the delivery note free of charge.

 

c) We shall not accept the costs of disposal for transport packing.

 

 

5. Special types of supply

 

a) If goods are to be supplied at a place other than the place of fulfilment the following shall apply:

 

aa) The costs of dispatch from the destination station onwards shall be for the Buyer’s account.

 

ab) We shall reserve the right to choose the dispatch route and type of dispatch.

 

ac) If delivery has been agreed free of charge, the Buyer shall consequently have to pay the freight and the secondary costs directly associated with it in advance; he may deduct these costs from the invoiced amount.  The freight shall be reimbursed at the freight rates in force on the date of invoice.  If the cost of freight increases as a result of subsequent changes in the method of shipment, choice of shipping route, destination or similar circumstances having an impact upon the cost of freight, the Buyer shall consequently have to pay these additional costs.  If costs in freight are saved as a result of a change in destination or other circumstances having an impact upon the cost of freight, this shall not result in a credit being raised for the benefit of the Buyer. 

 

ad) The goods shall not be insured by us against damage in transit.  The costs of transit insurance shall be borne by the Buyer if they are expressly requested.

 

ae) Risk shall pass over to the Buyer once the goods leave our works.

 

b) If the Buyer reserves the right to specify the full particulars in detail concerning shape, dimensions or similar factors when the goods are delivered he shall have to assert his rights no later than 4 weeks prior to production.  This arrangement shall also apply for call-off orders.

 

c) If goods from our stores are held ready for the Buyer’s sole use, or are sold for manufacture without a destination having been specified, the Buyer shall consequently have to take delivery of the goods within 1 week from reporting that the goods are ready.

 

6. Default in taking delivery of the goods

If the Buyer does not take delivery of the goods within 1 week from being notified that they have been completed and are ready for collection at the place of fulfilment and / or if he does not name a haulier, who collects the goods from the place of fulfilment within this period of time, he shall consequently be in default with taking delivery of the goods.  In this case we shall be entitled to take the goods and store them in the factory stores at the Buyer’s expense or to have them put into store with a haulier.  Then the goods will be invoiced.  We shall have to store the goods with the due diligence of a prudent businessman and to insure them at the Buyer’s expense.  Our obligation to supply will be fulfilled by putting the goods into store. 

 

7. Delivery period

We shall not specify a fixed delivery date.  Only the probable delivery dates will be specified in order confirmations.  These are indications of roughly when the goods will be supplied.

 

8. Notification of defects

 

a) Apparent defects, i.e. legal or quality defects, over deliveries, under deliveries, or incorrect deliveries as well as the lack of a feature or durability of goods or services which may possibly have been guaranteed by us (Defect) are to be asserted in writing straight away and no later than 14 days from the receipt of the goods.  Defects which are not obvious are also to be notified straight away and within 14 days from being identified at the latest.  

 

b) If defects or other complaints are not asserted within the periods stipulated above in Section 8.a), warranty claims asserted against us shall be rendered invalid.

 

9. Warranty

a) If there is a defect and if the defect is notified on time in accordance with No 8 of these General Terms and Conditions of Supply and Payment within a period of 12 months from the hand-over of the supplied item, we shall either rectify the defect (subsequent performance) or supply a replacement to the Buyer, provided that the Buyer can prove that the defect already existed when risk was passed over.  We shall be liable for damages resulting from loss of life, personal injury and physical harm caused by a defect within 24 months from the supplied item being handed over.  In all cases the period covered by warranty for perishable goods, that is our materials which react to chemicals shall be limited to the stated minimum service life.  No warranty shall be furnished for used goods.

 

b) If we have rectified defects twice or provided a replacement once or, if different defects occur, twice, and we could not rectify the existing defect as a result, as well as in the event that we refuse to carry out a necessary repair or provide a replacement without justification, or improperly delay in doing so, or if the Buyer cannot be expected to accept subsequent performance for other reasons, as well as if the preconditions of §281 II or §323 II of the German Civil Code [BGB] exist, the Buyer may, instead of having defects rectified or receiving a replacement, assert his right to legal redress by withdrawing from the contract or by reducing the price as provided for by law, as well as his right to assert compensation claims for damages or the reimbursement of his expenses, the latter in keeping with "14. Compensation for damages" in these General Terms and Conditions of Supply and Payment.

 

c) Our warranty for products we supply from other parties shall be limited to the assignment of claims which we have against the supplier of third party products.  In the event that the Buyer is unable to enforce his warranty claims against the supplier of the third party products, we shall furnish a warranty in keeping with these terms and conditions.

 

d) The Buyer shall have to allow us the necessary time and opportunity by mutual arrangement to be able to rectify defects or supply a replacement.

 

e) Otherwise we shall not be obliged to rectify defects or supply a replacement if this is only possible at disproportionate expense.  Such costs shall be disproportionate if they exceed 25% of the purchase price of the supplied item.

 

f) Any parts which may have been replaced under the warranty shall become our property.

 

g) If the notified defect was unjustified, we shall be entitled to demand the reimbursement by the Buyer of the costs incurred by us.

 

h) We shall not furnish any warranty for discrepancies from agreed condition and features if they are no more than minor and if the reduction in usability is minor as well as for damage which can be attributed to the following in particular: unsuitable, improper or incorrect use by the Buyer or third party, natural wear and tear, incorrect or negligent handling – in particular excessive loads, alternative materials, chemical or electrical action.  In the event of discrepancies in volume, dimensions and thickness the following shall apply:

 

A defect shall not exist if the average value relating to the delivery as a whole is within the specified tolerances, individual measurements are less than twice the tolerance allowed or are in excess of 10% of the agreed figure and the parts of the consignment differing from the specified figure or tolerance do not exceed 5% of the overall consignment.

 

i) If the goods have been moved to a location other than the Buyer’s branch, and if, as a result, expenditure is increased, in particular transport costs, travelling expenses, labour costs and the cost of materials for subsequent performance or replacement, these increased costs do not have to be refunded to the customer as a result unless the goods have been taken to another location to be used for their intended purpose.    

 

j) In so far as we have furnished a storage time guarantee, we shall be liable for damage incurred during the course of this warranty as a result of storage.  This shall only apply if the Buyer has stored the goods properly and in accordance with our specifications.

 

 

10. Force majeure

a) We shall not be responsible for unforeseen consequences, caused by force majeure (industrial action, unforeseen operational breakdowns not resulting from our organisational shortcomings, unforeseeable shortages in raw materials, export restrictions).  We shall not be liable for resultant or impossibility of performance.  If a condition of force majeure exists for more than 3 months we shall consequently be entitled to withdraw from contracts.

 

b) We have to notify the Buyer if force majeure occurs in accordance with 10 a) of our own accord and upon request as soon as this is possible.

 

 

11. Delay and Impossibility of performance

a) Should we find ourselves in default with our obligation to supply as a result of ordinary negligence, the Buyer may consequently demand compensation amounting to 0.5% of the total value of that part of the overall consignment which cannot be used or which cannot be used on time and properly in accordance with the contract for each commenced week of delay.  However, the total amount of compensation is not to exceed 5%.  This amount of compensation may be set lower or higher if we can prove that the damages incurred by the Buyer were lower, and higher, if the Buyer can prove that the damages he has incurred were higher.

 

b) Irrespective of the right to withdraw from the contract if there are defects (See 9 Warranty) the Buyer may only make use of his right to withdraw from the contract in the event we are to blame for being in breach of contract if we are unable to render performance for once and for all (Impossibility), or if we render our performance late.  

 

c) In the event that we are in default, withdrawal from the contract or compensation for damages instead of performance shall moreover require the Buyer to have set us a reasonable period of at least 4 weeks in advance in writing and in doing so he must have made expressly clear that he will withdraw from the contract and / or assert a claim for damages in the event of non-compliance with the period set for delivery.  Once this period has expired the Buyer shall be obliged, upon being called upon by us to do so, to state whether he is continuing to insist upon delivery or whether he will assert a claim for damages or withdraw from the contract.  If the Buyer fails to make any such statement within a reasonable period set by us, the Buyer shall no longer be entitled to reject the consignment and may no longer withdraw from the contract and may not assert a claim for damages instead of performance. 

 

d) A set period named in Section 11.c) may be dispensed with if we refuse to render the performance owed under the contract in all seriousness and for once and for all or if there are certain circumstances extant which substantiate the immediate withdrawal from the contract after weighing up the interests of both parties.

 

e) The Buyer may not withdraw from the contract before performance is due, nor may he withdraw from the contract in the event of a breach of contract by us which is no more than minor.  In the final analysis withdrawal will not be allowed if the Buyer is solely or predominantly responsible for the circumstances which would entitle him to withdraw from the contract or if a circumstance occurs for which we are not to blame while the Buyer is in default with taking delivery of a consignment.

 

f) 14. Compensation for damages of these General Terms and Conditions of Supply and Payment shall apply for a compensation claim for damages.

 

12. Reservation of title

The goods shall remain our property until all the accounts already created by the business relationship have been paid; regardless of on whatever legal reason they were based.  In so far as according to the law of the country in which the goods subject to reservation of title are located specific regulations have to be observed for the reservation of title to be valid, the Buyer shall be responsible for compliance with these regulations.  If, according to the law of the country in which the goods subject to reservation of title are located, it is not possible to supply goods and retain title to them, the Buyer shall consequently ensure that we are granted the supplier’s assurances to the goods subject to reservation of title normal in that country.         We shall be under no obligation to supply for as long as in the latter case stated above there is no proof that reservation of title or the supplier’s assurance normal in the country concerned has been effectively granted to us.

 

The Buyer shall be allowed to process the goods and sell them in a normal business transaction taking into consideration the following provisions.

 

a) The Buyer’s authority to process and resell the goods subject to reservation of title shall lapse if he stops making his payments, or if a petition is filed to initiate bankruptcy or composition proceedings.

 

b) The Buyer processing the goods for us shall not acquire ownership of the new thing in accordance with § 950 of the German Civil Code [BGB] by processing the goods subject to reservation of title.  If the goods subject to the reservation of title are processed, mixed or combined with other things belonging to the Buyer or a third party, we shall consequently acquire the co-ownership of the new thing in proportion to the invoiced value of the goods subject to reservation of title to the invoiced value of the other processed items.  If, as a result of processing, mixing or combining our title to the goods subject to the reservation of title is adversely affected under the law of the country in which the goods subject to reservation of title are located, the Buyer shall undertake here and now in keeping with his power of disposal to procure co-ownership of the new product for us amounting to the value of the goods subject to reservation of title taking into consideration all the regulations applicable for such a legal change and in particular to ensure that our rights are properly registered, in so far as this is required for these rights and their seniority to be valid against third parties.   

 

c) The Buyer shall hereby assign the accounts with all secondary rights created by a resale of the goods subject to reservation of title to us, and to be more precise, as a proportion, also in so far as the goods have been processed, mixed and combined and we have acquired co-ownership to the invoiced value.  We shall be entitled to part of this assignment equal to a fraction of the purchase price account in proportion to the ratio between the invoiced value of the goods subject to reservation of title and the invoiced value of the item.   We hereby accept these assignments.  If under the law of the country applicable to the Buyer’s account created by a resale specific regulations have to be observed for the assignment to be valid against third parties, in particular with regard to registration and / or notification, the Buyer shall consequently be responsible for compliance with these regulations.

 

d) The Buyer is entitled to collect the accounts assigned to us until this authorisation is revoked.  The collection authorisation shall also lapse without express revocation if the Buyer stops making his payments.  Upon request the Buyer is obliged to give us a precise list of the accounts to which he is entitled with the names and addresses of his buyers, the amount of the individual accounts, invoice date etc. and show his buyers the assignment and pass over to us all the information required to assert a claim for the assigned accounts.

 

e) The reservation of title shall also continue to exist in those cases in which individual accounts have been put into a current account and the balance is struck and recognised.  We shall not only be entitled to a reservation of title for the recognised and separate final balance of account but also for the individual items entered in the current account. 

 

f) We shall release supplied items which have been paid for in full here and now, if the security existing as a result of the reservation of title exceeds the account to be secured by more than 20%.

 

g) The Buyer must not pledge the supplied item nor assign it by bill of sale as a security.  The Buyer must notify us straight away in the event of levy of execution, confiscation or other disposals by third parties.

 

h) The Buyer shall keep the goods subject to reservation of title in safekeeping for us.  He shall have to insure them against fire, theft, and water damage.  The Buyer hereby assigns to us for the amount of our claim his compensation claims for damages against insurance companies or other parties obliged to compensate him in the event that an insurance claim is made.  We hereby accept the assignment.

 

13. Objection of uncertainty, Offsetting and Right of retention

 

a) If we become aware of a significant deterioration in the financial status of the Buyer or if the Buyer falls into arrears with a payment, we shall consequently be entitled to demand that all outstanding invoices, including those which are not yet due for payment, are paid immediately and to ask for payment in cash before goods are delivered for all outstanding consignments. The Buyer is entitled to avert the demand for payment in advance by furnishing an appropriate security.  If the payment demanded is not made and no security is furnished we shall consequently be entitled to reject the fulfilment of the contract or to withdraw from the contract having set an appropriate period of time for either payment to be made or for a security to be rendered.

 

b) We shall be under no obligation to supply any more consignments under any current contract before all invoiced amounts payable have been paid in full.  In addition to this we shall reserve all rights. 

 

c) The Buyer is not entitled to offset counter-claims unless they are not contested or have been declared final and absolute in a court of law.  The Buyer shall only be entitled to a right of retention to the extent that it is based upon the same contractual relationship as our accounts.  

 

 

14. Compensation for damages

 

We shall only be liable to the Buyer

 

-    in the event of gross negligence and intent by our executive bodies, senior employees and ordinary assistants for the full amount of the damages;

 

-    depending upon the reason for each breach of important contractual obligations (cardinal obligations) caused by intent or negligence, i.e. contractual duties the fulfilment alone of which makes it possible to fulfil the contract properly and upon compliance with which the Buyer may normally rely,

 

-    in the event of breach of cardinal obligations attributable to ordinary negligence only for the actual reimbursement of damage typically foreseeable; otherwise we shall be liable for the full amount of damage.

Otherwise we shall have no liability.  Liability on account of intent, malice and loss of life, physical harm and personal injury as well as under the German Product Liability Act shall not be affected by this however.

 

15. Payments

 

a) In the absence of a specific agreement payment shall have to be made within 14 days to qualify for a prompt payment discount of 2% or within 30 days straight net.  The period allowed for payment shall in each case start on the date of invoice.

 

b) The acceptance of drafts shall be subject to our prior consent and shall only be allowed on account of payment.  Discount fees and other charges are to be remitted by the Buyer immediately upon presentation of the draft.  We shall not accept any liability for drafts, cheques, or other papers submitted on account of payment being presented on time or being protested.

 

c) We shall be entitled to demand 5% interest from the Buyer from the date payment is due onwards.  Once the Buyer is in default we shall be entitled to demand interest amounting to 8% above base rate.  We shall reserve the right to assert a claim for any default damages there may be in excess of this amount.

 
16. Applicable law / lNCOTERMS

 

a) The contract shall be governed by the law of the Federal Republic of Germany.  The United Nations convention on contracts concerning the International sale of goods dated 11.04.1980 shall not apply.

 

b) The latest version of INCOTERMS in force shall apply.

 

17. Place of jurisdiction

 

a) The place of fulfilment shall be the registered office responsible in a specific case for a delivery and stated by us on the order confirmation (Vaihingen/Enz, Kuppenheim, Waldshut, Thalheim or Zwönitz).

 

b) The courts having jurisdiction where our head office (Vaihingen/Enz) is based shall have sole jurisdiction for all disputes arising from this contract entered into by registered businesses or disputes concerning the validity of this contract.  The Plaintiff may also take legal action at the courts having jurisdiction where the Defendant is based. 

 

Status: September 2008

 

 

 

 

 

1. Scope and written form

a) The orders of KREMPEL GmbH, KREMPEL GmbH & Co. Pressspanwerk and Krempel Isolierteile GmbH & Co. KG (hereafter: “KREMPEL“) are solely based on the following purchasing conditions (General Purchasing Conditions). These conditions in their then version are valid as general agreement including future purchases from the same seller / supplier of KREMPEL and KREMPEL is not obligated to refer to these conditions in each individual case. Contradicting terms of sale by the supplier are herewith explicitly rejected. Deviations and addenda of the supplier to the presented purchasing conditions will only be accepted by KREMPEL if KREMPEL explicitly agrees to the validity in writing; they are only valid for the business for which they were agreed to in the individual case. This approval requirement is valid in every case, for example even if KREMPEL accepts the deliveries of a supplier without objections while knowing the terms of sale of the supplier.

  

b) With the acceptance of an order by the supplier, at the latest with the shipment of the ordered goods or fulfilment of the services ordered, the supplier recognises the sole legal validity of these General Purchasing Conditions. The General Purchasing Conditions apply to the procurement of both movables (“supplies”) as well as contracted work and services (“services“).

  

c) Orders are only binding when these have been established in written form. Orders expressed verbally or by telephone, supplements and any amendments to orders already placed require in order to be effective, that the contents of such agreements be in written form.

  

d) These purchasing conditions are only valid for companies, public incorporations or special assets governed by public law in accordance with § 310 para.1 BGB.

  

2. Conclusion of a contract

  

a) Acceptance of our orders shall be confirmed in writing within 3 days of the order being issued. If the supplier does not accept the order within this period of time, then KREMPEL is entitled to withdraw from the order. Withdrawal shall be in written form. Any acknowledgement of the order arriving later than this time limit or where the contents differ from the order placed, will be considered as being a new quotation and they have to be approved in writing by KREMPEL in order to be become effective.

  

b) Call-forward notices for supplies will become binding after 2 weeks at the latest if the supplier has not objected in writing to such within this period of time.

   

c) The transfer of the order to third parties, including the surrender of the resulting rights and claims needs prior written approval by KREMPEL. KREMPEL reserves the right to cancel this contract with a written statement and/or claim compensation if this condition is violated.

  

3. Prices

  

a) If no special agreement has been reached, prices are understood as being free delivered, including packaging, to the address we stipulate. The agreed prices are fixed prices for the entire volume of the order, irrespective of whether the goods are received in one shipment or in part instalments.

  

b) Compliance with customs requirements and regulations for supplies from abroad, including payment of any customs duties which might be levied, is the responsibility of the supplier if DDU has not been agreed.

  

4. Target dates and time limits for supply and services

  

a) Target dates for supplies and services are considered met when the goods have been received at the delivery address by the foreseen point in time or the services have been completed by the agreed target date. In the event of the target date not being met and the time limit being exceeded, KREMPEL reserves the right, following elapse of an appropriate extension of the time limit, to revoke the agreement. The supplier is furthermore obliged to pay compensation for damage caused by delayed performance in the form of contract penalties. Such compensation for the goods not delivered shall be to the value of 0.1 % of the delivery value for each business day, however, a maximum of 5% of the total delivery value. The damage amount must be decreased or increased if Krempel proofs a higher damage or the supplier proofs a smaller damage.

  

b) As soon as such a situation becomes apparent, the supplier is obliged to inform KREMPEL in writing without delay of the expected duration for all situations - and to justify these - which might impair the timely fulfilment of supplies or services. KREMPEL reserves the right to extend the target date for delivery.

  

c) For each supply or service, the supplier shall include appropriate delivery paperwork stating the supplier ID and the purchase order number. The delivery paperwork shall furthermore agree exactly with the wording in the order and order acknowledgement, and include all other information of relevance.

  

d) Should acts of God, outbreak of war, natural disasters, strikes, lock-outs, measures from authorities and other unforeseen serious unavoidable events lying outside KREMPEL’s sphere of influence for which KREMPEL cannot be held responsible, lead to the supply not being accepted / delivered, or the services not being provided or being accepted, then KREMPEL is exempted from any obligation to accept for the duration of the interference and to the extent of the effects from the interference. KREMPEL will adapt in loyalty and good faith its obligations to changes in situations. This can mean that KREMPEL might renounce delivery in whole or in part of supplies still outstanding even if the interference has been rectified, or may demand continuation of supplies or services.

 

 

5. Partial supplies, excess supplies, short supplies, supplies ahead of schedule

 

a) KREMPEL is not obliged to accept supplies in instalments which have not been previously agreed. If supplies in instalments have been agreed, KREMPEL can determine the sequence for these. KREMPEL is entitled to use supplies in instalments without acknowledging conformity with the contract for the supplies by doing so.

  

b) Authoritative for the condition, type, quantity and weight of a delivery, are the values established at receiving inspection at the KREMPEL premises.

  

c) KREMPEL is entitled to reject excess supplies and short supplies falling outside customary commercial tolerances. Supplies deviating by more than 5 % from the ordered quantity require approval in writing beforehand from KREMPEL in each case.

  

d) KREMPEL is not obliged to accept any supplies shipped ahead of schedule.

  

6. Special requirements for services

  

The supplier provides his services as his own responsibility by means of his own personnel, material and tools. The supplier has always to provide the services himself. Any forwarding to a sub-contractor is only possible provided approval in writing has been obtained beforehand from KREMPEL. KREMPEL is obliged to provide the supplier with the information, documents and materials available to KREMPEL, which are necessary for the supplier to complete the agreed services.

  

7. Dispatch, packaging and passage of risk

  

a) Binding for the shipment is the delivery address given in the order. Supplies shall be shipped free delivery address (unless otherwise agreed between the parties for the particular case).

  

b) Passage of risk for goods received is together with the transfer of the supply customary for supplies delivered free delivery address.

  

c) KREMPEL can specify the type of packaging and the mode of dispatch. If this is not the case then the supplier shall select the most favourable and most suitable type of packaging and mode of dispatch specific for each of the commodities. In the event of negligent non-observance of this requirement, all the costs incurred for replacement of damaged goods, additional freight, disposal and similar costs shall be at the expense of the supplier.

  

8. Contractual amendments / technical changes

  

a) Amendments to the contents of the contract – in particular with regard to quantity and date for supplies or services – shall be regulated by common consent between KREMPEL and the supplier and be documented in writing.

  

b) Independent of the regulation of this clause 8 a) of the General Purchasing Conditions, KREMPEL can request technical changes at any time to the goods, which have already been ordered. After receiving a request for changes, the supplier shall submit without delay a proposal for any increase or reduction in costs, as well as indicating any changes in schedule, etc. The supplier will not implement any technical changes without first having received written approval for such from KREMPEL.

  

c) Changes of the delivery item by the supplier are subject to a prior written approval by KREMPEL.

 

9. Payment conditions

  

a) The currency for the invoice submitted by the supplier shall principally be Euro or shall be in the currency stipulated in the purchase order. The VAT (value added tax) must be provided as a separate item on the order acknowledgement and the invoice and it must be shown as a percentage and an amount in the given currency. The invoice must furthermore include all information of relevance to the delivery paperwork.

  

b) The price listed on the order (order acknowledgment) for deliveries is a fixed price and is valid for goods or services free to the delivery address or the location of the service provision. If not otherwise agreed, it includes freight, import duties, carriage, insurance, etc.

  

c) If no other special agreement has been made, payment of invoices shall be either 14 days with a discount of 3 % deducted, 30 days with a discount of 2 % deducted or 60 days without any deductions, in each case as of receipt of the supplies or the invoice.

  

d) If payment in advance has been agreed with a supplier, then the supplier shall provide suitable security, the choice of which shall be made by KREMPEL. A special agreement in writing shall be concluded regarding the granting of security.

  

e) In the event of discrepancies in a shipment, KREMPEL is entitled to withhold payment proportional to the value for such time until satisfactory fulfilment of the supply is established.

  

f) KREMPEL is entitled to offset demands by the supplier from KREMPEL with all demands which KREMPEL has from the supplier. Any offsetting of demands by the supplier from KREMPEL is only permitted in the cases of undisputed demands and claims which have become res judicata.

  

10. Quality and documentation

  

a) The supplier shall maintain both now and in the future, a quality assurance system meeting as a minimum, the requirements of DIN ISO 9001 and/or expanded by ISO TS 16949. The applicability and effectiveness of the system can be inspected by KREMPEL by conducting audits at the supplier’s premises. Following appropriate notification in advance, the supplier shall grant access to the individual manufacturing steps and allow review of the processes and quality documentation. The contract parties will inform each other about the options for quality improvements.

  

b) The supplier must adhere to the agreed upon technical data for his deliveries. All goods delivered to KREMPEL must adhere to the current legal requirements, especially the EU requirements regarding illegal ingredients subject to declaration.  Appropriate conformity declarations, etc., are part of the delivery for products in accordance with EU guidelines. Products with a CE identification are considered approved for unrestricted trade.

  

c) When goods are produced for KREMPEL to delivery specifications for these, production of the goods may only then be commenced once agreed type samples have been checked and approved by KREMPEL.

  

d) Regardless of first testing and inspection and approval, the supplier has to continuously check the quality of the delivery items. Should type and scope of testing or test equipment or test methods not yet be agreed between the supplier and KREMPEL, then the supplier shall be willing when requested to do so, to discuss the tests with KREMPEL within the scope of his knowledge, experience and possibilities, and to establish the state of testing techniques necessary in each case.

 

e) The supplier is obliged to maintain outgoing lot controls based on the test criteria which have been agreed with KREMPEL. A test certificate documenting the test results shall accompany each supply.

  

11. Notice of supply defects and acceptance of contracted work

  

a) In accordance with the proper course of business, KREMPEL will check purchased goods immediately upon delivery of these for possible non-conformances or discrepancies in the quality. Deficiencies in accordance with these General Purchasing Conditions are material defects or legal deficiencies, over, under or wrong deliveries as well as the absence of a possibly guaranteed condition or durability of the goods or services. Complaints by KREMPEL about deficiencies of the goods is still timely if they are communicated to the supplier within 2 weeks after the receipt of the goods at KREMPEL. In case of hidden deficiencies, the period starts when the deficiency is discovered.

  

b) A formal acceptance procedure shall be followed when the supplier is providing contracted work. The formal acceptance will not be waived by any use, further processing or dispatch by KREMPEL of the item affected by the contracted work being provided, or by notification by the supplier that the contracted work has been completed.

  

12. Liability for defects

  

a) When non-conforming goods or discrepant portions of these are detected by KREMPEL before the start of production, then the following shall apply:

  

The supplier shall supply without delay, new contractually agreed products, or the defective goods shall be reworked by the supplier provided this is technically possible. The choice shall be made by KREMPEL. Any screening or other kinds of rework shall be performed by the supplier in concurrence with KREMPEL. All costs incurred by the supply of non-conforming goods (screening costs, transportation charges, costs for rework, etc.) shall be borne by the supplier.

  

b) If non-conformance is detected once production has started by KREMPEL, then the conditions of clause 12 a) shall first apply. The following will apply as well:

  

aa) If the non-conformance is detected before the final products are shipped to the customers of KREMPEL, then besides the costs for rework - provided rework is possible - the supplier will bear the costs for the replacement supply as well as all costs for assembly and disassembly attributable to the non-conformance together with any rework costs.

  

bb) If the non-conformance is only detected after the final products have been shipped to customers of KREMPEL, then the supplier shall also bear a part of the costs proportional to the supplier’s causation contribution of the supplier for the costs incurred for the recall campaign. KREMPEL will inform the supplier of such non-conformances once these are known as well as the subsequent course of proceeding.

  

c) KREMPEL can carry out the rework either itself or have this carried out by a third party, or procure replacements from a third party if

  

- the supplier does not react to KREMPEL's request for supplementary performance within an acceptable period, if the supplementary performance failed or if it is not acceptable to KREMPEL for other reasons.

  

- the nonconformance is established before the start of production and this manufacturing is required in urgent cases as protection against considerable disadvantages. The supplier will be informed of this without delay. Any costs incurred will be borne by the supplier.

  

d) Legal claims by KREMPEL remain unaffected by this; this applies in particular to claims for compensation, withdrawal from the contract or a reduction in the selling price because of defects.

  

e) The period of limitation for the rights of KREMPEL with regard to defects in supplied goods ends when 24 months have elapsed since use at KREMPEL, or after 36 months from delivery to KREMPEL, whichever occurs first.

  

f) The acceptance of the service and the payment do not constitute acknowledgement of an adequate service.

  

13. Product liability – exemption – repurchase – liability insurance

  

a) In so far as the supplier is responsible for damage to the product, the supplier is obliged to replace all damage incurred by KREMPEL, or to exempt KREMPEL from claims by third parties for compensation in the first instance, to the extent that the cause has been in his own area of sovereignty and organisation and he himself would be liable in the external relationship. In the case of a contributory fault or comparative negligence, the principles of § 254 of the BGB Civil Code shall apply.

 

  

b) Within the scope of the supplier’s liability for cases of damage, the supplier is also obliged to reimburse any expenses per §§ 683, 670 of the BGB Civil Code as well as in accordance with § 830, 840, 426 of the BGB Civil Code, which arise from a recall campaign performed by KREMPEL.

  

c) The supplier is obliged to maintain product liability insurance with a minimum coverage of EUR 2.0 million – flat rate – for personal injury / material damage. The supplier must not cover the risk of recalls assumed no deviating agreement was made. KREMPEL's compensation claims that exceed the insurance amount are not affected.

  

d) The supplier is obliged, when requested to do so, to provide evidence in writing of such insurance coverage. Should the supplier not be able to demonstrate this insurance protection within a period of 2 weeks, then KREMPEL is entitled to establish such an insurance on the expense of the supplier.

  

 14. Documents from KREMPEL and confidentiality

  

a) All rights of ownership and copyrights are reserved by KREMPEL for diagrams, drawings, plans, calculations, materials, models, drafts, specimens, fixtures and other auxiliaries, items and documents from KREMPEL; such may not be made accessible to third parties without explicit permission in writing from KREMPEL, may not be copied or be used for any other purpose than the one specified by KREMPEL and are only to be used to carry out the order from KREMPEL.

  

b) The parties are obliged to treat all commercial and technical knowledge and information not otherwise obvious, which become known to them through the business relationship as industrial secrets and not to make such knowledge and information accessible to third parties. These obligations are not applicable for the case that the supplier provides authorised persons with such information.

  

Neither are these obligations applicable for information:

  

- that was publicly known without the supplier violating his obligations or – if the supplier can identify this – without an authorized person violating his/her obligations;

  

- which the supplier has received or regularly receives from a third party, when the third party is not bound to confidentiality towards KREMPEL;

  

- which are known to the supplier independent of KREMPEL.

  

c) Regarding the confidentiality of information, the supplier is obliged to practise that care which as a minimum would apply to matters of his own, and, whatever the circumstances, the minimum care called for in communication.

  

d) All of the above-mentioned items are, when required to do so by KREMPEL, to be insured by the supplier against fire and theft for the time these are in the possession of the supplier.

  

e) The supplier is obliged to bind any sub-contractors he might engage, to the requirements called out above.

  

15. Property rights

  

a) The supplier is liable for all claims arising from use in accordance with the contract of the delivery item or services from any violation of industrial property rights and applications for protected privileges from third parties (referred to in the following as “property rights”) in Germany, in members states of the European Union and in North America.

  

b) The supplier exempts KREMPEL and its customers from claims by third parties for violation of property rights. Any licence fees shall be borne by the supplier.

  

c) These obligations are not applicable if the supplier was not able to recognise a violation of property rights by the products or services supplied.

  

d) The parties are obligated to inform each other immediately about violation risks and alleged property right violations once they are known to ensure that counter actions against liability claims can be initiated.

  

16. Retention of ownership – provision of material – tools

  

a) The ownership of the delivered goods passes over to KREMPEL on completion of payment. Any extended or expanded retention of ownership by the supplier is ruled out.

  

b) In the case that KREMPEL has furnished the supplier with parts for a commissioned order, KREMPEL retains the right of ownership of these parts. Processing and transformation by the supplier are undertaken on behalf of KREMPEL. If reserved goods are processed, separately or together, with other items not belonging to KREMPEL, then KREMPEL acquires co-ownership of the new item in the ratio of the value of the KREMPEL property to the other processed items at the time of processing.

  

c) In the case that the supplier has fabricated tools for KREMPEL, the ownership passes over on complete payment of these to KREMPEL and/or its customers. The tools shall be accordingly identified by the supplier.

  

17. Notice to terminate orders / contracts

  

The following regulations apply for duration and notice of termination in the case of longer-running contracts for the supply of goods or for contracts to provide services:

  

a) Either party is entitled to terminate such contracts by giving 3 months notice of termination in writing.

  

b) In cases where the KREMPEL client/customer terminates orders with KREMPEL either as an ordinary or an extraordinary termination, KREMPEL is entitled to reach a different agreement with the supplier for the facts by mutual consent.

  

c) Each party can terminate a contract at any time, in writing and for a major reason, without complying with the notice to terminate. A major reason is given in the following cases in particular:

  

- Stoppage of payment by a party, the opening of insolvency proceedings for the assets of a party or the rejection of these because of insufficiency of assets, or the liquidation of one of the parties

  

- Violation of major contractual obligations whose completion enables the execution of the contract;

  

- One party falls under the controlling influence of a competitor or other party through one of its company members or shareholders.

  

d) In the case of notice to terminate or termination of the contract, the supplier shall return all items, including all drawings and other documents, fixtures and tools which have been furnished by KREMPEL.

  

18. Final provisions

  

a) Applicable for these purchasing conditions and the entire legal relationships between KREMPEL and the supplier are the laws of the Federal Republic of Germany to the exclusion of the agreement of the United Nations on the international selling of merchandise from 11.04.1980 (CISG).

  

b) Place of execution for all claims resulting from the legal relationships with the supplier, i.e. for all supplies, services and payments is the place to where the goods shall be delivered in accordance with the contract.

  

c) Place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the responsible court at the headquarters of KREMPEL in Vaihingen, assumed the supplier is a qualified merchant or a public incorporation or special assets governed by public law. However, KREMPEL has the right to sue the supplier at any other court of jurisdiction.

  

 

 

 

Version: 07/30/2008