General Terms and Conditions of Purchasing (as of 6 November 2002)

Transcription

1 Johann Hay GmbH & Co. KG Automobiltechnik Postfach Bad Sobernheim General Terms and Conditions of Purchasing (as of 6 November 2002) 1 Applicability of the Terms and Conditions Our orders are based on our Terms and Conditions of Purchasing in their latest respective versions. The General Terms and Conditions of the Supplier or any other deviating agreements shall only be deemed to have been accepted if they are confirmed by us in writing to constitute an addendum to our Terms and Conditions of Purchasing. Our acceptance of the deliveries/services without objection cannot be construed to signify that we had accepted the Terms and Conditions of Supply of the Supplier. Tacit acceptance shall not constitute consent. References or counter-confirmations of the Supplier making references to his terms and condition of supply are herewith expressly contradicted. 2 Placing of orders Only written orders signed by persons empowered to represent us shall be considered valid. Oral and faxed arrangements and communications require our written conformation to be effective. The acceptance of our order must be declared on our order form. Also in other cases the acceptance of every order must be confirmed by the Supplier immediately after it was received, however, no later than two weeks after receipt. In absence of confirmation we shall be entitled to revoke the order. On order confirmations, delivery notes, freight documents, addresses for packages, wagon stickers, invoices and any other correspondence the order number with the date, the delivery place and the material number must be quoted in all cases. Delivery notes must accompany the consignment in quadruplicate. Invoices shall be delivered by the post in three separate copies within 5 days of delivery or of the provision of the service, duplicates shall be clearly marked as such. 3 Use of samples, secrecy and exclusivity Drawings, prototypes, tools, patterns or samples, also in the form of EDP data carriers which we provided to the Supplier for the execution of the order shall remain our property and must be returned on request. The same items, any data which may be gleaned from them as well as our business and operating secrets may not be copied, sold, pledged or made accessible for inspection or available to third parties without our written permission. Also companies and persons who are involved in any way into the production and sales of our products shall be defined as third parties as defined by this provision. The Supplier shall obligate his employees who learn of such information to observe secrecy in an appropriate manner. The obligations to observe secrecy shall continue also after the end of the business relationship. The Supplier undertakes to manufacture the products, the raw products, the semi-finished and finished products which are the subject matter of this contractual agreement between him and us exclusively for us and supply these only to us or to third parties designated by us. The same shall apply to parts which the Supplier has developed in accordance with details provided by us or with our material collaboration ( by experiments, etc.). The Supplier undertakes not to produce, arrange for the production, sell or mediate the products supplied within the business relationship during its term and during the three years that follow the termination of the business relations to any third parties who are our direct or indirect competitors. 4 Quality assurance Inasmuch as the contractual relations are based on a quality assurance agreement the Supplier shall produce the products in the quality described therein. Prior to commencement of the serial production of production material ordered by us the Supplier has to implement a process and product release procedure (e.g. in accordance with the Document 2 of the German Car Manufacturers' Association (Verband der Autoindustrie, VDA)). If our

2 customer demands a release of the construction then the construction release shall be carried out prior to the process and product release procedure. The Supplier undertakes to apply permanently a quality assurance system in accordance with ISO 9001: 2000 or a system which meets all the requirements imposed by this standard in terms of content. Other regulations, in particular ISO/TS shall become upon the issuing and confirmation of the first sample order for first samples and audits a part of the contractual agreement. The Supplier shall retain the responsibility for the execution of the products to be supplied in accordance with the specification also if after the notice and the release by the customer the direct production or individual steps of the processing are carried out by a sub-supplier or if the material is purchased completely from third parties. We may demand documentary proof from the Supplier proving that the Supplier has convinced himself of the effectiveness of the quality assurance systems at his sub-suppliers and/or has ensured the quality of his complementary parts by applying other suitable measures. The duty to keep the specification and records by providing special archives shall apply for a period of 15 years (compare German Motor Manufacturers Association Vol. 1 "Keeping of records"). Otherwise the filing period for the records required to provide proof shall be 10 years. Should the Supplier establish an increased deviation in the actual quality from the target quality, (Qualitätseinbrüche), he will inform the Customer of such and of the planned remedial measures without delay. Control and inspection plans shall be revised and optimised, if appropriate, with the collaboration of the Customer. Should quality defects be discovered by the Customer or his customers in the goods and services supplied by the Supplier, he shall be informed of these defects in advance without delay on commencement of the complaint procedure, by telephone, , fax or other suitable means of communication. As far as possible and available, the Customer shall send the Supplier a sample of the defective product together with an official audit report for the purposes of investigation. The Supplier shall, forthwith on receiving the audit report/sample or on commencement of the complaints procedure, provide a written opinion on the feature in question and define discontinuation measures. An opinion per 8D-Report takes place in consultation with the Customer. For the purpose of ensuring quality in the ongoing production, the Customer may institute additional testing measures during fabrication. Moreover, the Supplier, together with the Customer, shall determine measures to be implemented immediately. More extensive quality assurance, cost relevant measures are to be decided upon together with the quality assurance representative of the Supplier or his deputy. We shall use our best endeavours at all times to reduce the costs arising from reclamations. However, inevitable costs (also at our customers in connection with an expenditure arising from a Supplier reclamation) shall be provided to the Supplier in detail. Calculated profits shall not be taken into consideration. The Supplier shall be responsible for the proper implementations of all inspection measures. A quality or receiving inspection by us or by third parties designated by us shall not be carried out. An identity check shall be carried out. The Supplier shall grant free access to the workshops, production rooms, storage rooms and experimental installations in which the products are produced, inspected and stored. Products failing to comply with the acceptance conditions or drawings may not be delivered without our written consent. The Supplier shall ensure that his products supplied to us comply with the applicable EU regulations and the national legislation. The Supplier shall be responsible for ensuring that the most recent statutes and regulations are available and used at all times. The Supplier guarantees that all the products supplied by him are free of radioactively contaminated materials. Should radioactively contaminated parts be found by us then the Supplier shall be liable for all costs which arise in connection with the contamination. If it is admissible under statute the Supplier shall take back the contaminated materials. All the materials used in the production of the Supplier and the manufacturing processes applied must comply with the valid statutory conditions and specifications imposed by the International Material Data System (IMDS) ( Seite 2/5

3 5 Prices The prices named in our order and confirmed by the Supplier shall constitute fixed prices. Unless other special arrangements are made the prices shall apply to deliveries free of charge at the delivery bay including any packaging. Packaging shall be selected such that the goods transported and the environment are adequately protected. Only packaging capable of recycling must be used. Other packaging shall be returned at the cost of the Supplier. 6 Deliveries, delivery deadlines Unless there are express agreements to the contrary partial deliveries are not permitted. We shall only accept the quantity ordered by us. Excessive deliveries or deliveries with shortfalls shall only be admissible on the basis of prior arrangements with us. With the exception of force majeure the agreed receiving dates and delivery deadlines shall be binding. Agreed delivery deadlines run from the date of our order. If due to a circumstance for which the Supplier is responsible the agreed deadlines are not observed we shall be entitled to assert a claim for default damages against him. The default damages shall be calculated as a lump sum at 0.1 % of the value of the order per working day. Whilst 5% of the value of the order shall be agreed to constitute the maximum limit we reserve the right to prove damages in excess thereof. Equally the Supplier shall be reserved the right to prove that the damage incurred by us was less. The right to demand the payment of an agreed contractual penalty shall not be forfeited by the fact that the demanding of the contractual penalty was not expressly reserved at the time of the defaulting delivery. After the setting of a reasonable period of grace, however, maximally 14 days, we shall be entitled to withdraw from the agreement or demand damages in place of performance or to obtain replacement from a third party. If the Supplier is unable to adhere to the delivery deadline due to force majeure (e.g. strike, civil unrest, fire, flood, war, etc.) or another event for which he is not responsible then he must notify us immediately upon learning of the hindrance giving the anticipated duration of the delivery delay. If the production of the Supplier is impaired in a sustained manner for longer than two weeks then the Supplier shall make efforts to arrange for an external supply in order to warrant the continued readiness to deliver to us. The transfer of the production to third parties can only take place with our written consent. In the event of an external production the Supplier shall transfer to the third party all the obligations assumed by him. His obligation to perform on the specified days shall remain unaffected by this. The acceptance of a late delivery or service shall not constitute a waiver of claims for replacement. 7 Force majeure Events of force majeure (e.g. strike, civil unrest, fire, flood, war, etc.) at us or in the area of our sub-suppliers as well as other events for which we are not responsible which lead to a stoppage or restriction of our production shall entitle us for the period and to the extent of their impact to postpone the acceptance and payment for the duration of the hindrance and to a reasonable running up period. As soon as we can assess these consequences we shall notify the Supplier about such events. The same shall apply in the event of a strike or a lock-out at us or our sub-suppliers if the acceptance does not become impossible. If the acceptance becomes impossible we shall be entitled to withdraw from the agreement in respect of the uncompleted part. In the event of such a postponement of the acceptance and the prolongation of the payment deadline any entitlements of the Supplier to damages or to withdrawal shall be forfeited. If the hindrances last longer than 2 months then the Supplier shall be entitled to withdraw from the uncompleted part of the agreement after setting a reasonable period of grace. 8 Payment conditions Unless agreed otherwise payment shall be made at our discretion within 14 days with a discount of 3 % or not later than in 60 days after the receipt of the goods and of the invoice net. The deadline for payment shall run from the receipt of an invoice which can be checked, however, not prior to the receipt of the delivery. Seite 3/5

4 Unless partial deliveries are expressly agreed a total invoice shall be submitted for every order after its complete delivery. Payment shall be made subject to the reservation of checking the invoice, prepayments are subject to the reservation of the correct receipt of the goods, pre-payments shall not constitute the approval of the goods as compliant under the agreement. The Supplier may only assign or have his receivables collected by third parties subject to our consent. 9 Acceptance Inasmuch as the Supplier owes the provision of a service or the delivery of a product under a contract for work (Werkvertrag) a formal acceptance shall be required. If the inspection of the performance of the Supplier requires a commissioning or testing then the acceptance shall only take place upon the successful conclusion of such tests. Payment by us shall not signify that the object delivered was accepted by the entity placing the order. 10 Warranty for defective deliveries Unless agreed otherwise in these Terms and Conditions of Purchasing the statutory provision shall apply. If in accordance with statutory provisions there is an option right conferred on the Supplier between replacement and rectification then the Supplier shall allow us to exercise the option. Unless the statutory period is longer the warranty period shall be 2 years after successful acceptance by us. The complaint about existing defects shall deemed to be in good time if it is made within 2 weeks after delivery, the complaint about hidden defects shall be in good time if it is made 2 weeks after discovery of the defect. The warranty period shall be interrupted by every written complaint about defects. For the period during which the delivery cannot be used or processed due to its defectiveness the statute of limitation shall be suspended from the date of their notification of the defect up to the successful completion of the rectification or its failure. This shall also apply inasmuch as we are entitled to rectify defects or have these rectified by third parties. In the event of replacements and rectification the warranty period starts again from new for replaced material or parts renewed. By acceptance or approval of drawings presented we shall not waive any warranty claims. In the event that important characteristics are marked in our drawings, which constitute a part of the agreement, these shall be deemed to constitute warranted properties. If we are entitled to damages from this contractual relationship against the Supplier then the Supplier may only offset adjudged or uncontested counter-claims against our claims. 11 Product liability The Supplier shall carry out all inspections of the products manufactured or supplied by him independently from any incoming inspection by us and shall be responsible for the faultless quality of the supplied goods delivered. Inspections carried out by us shall not discharge the Supplier. If claims are asserted against us on the basis of product liability due to violation of safety regulation stipulated by authorities or similar under domestic or foreign law then the Supplier shall reimburse us the damage incurred if his delivery or conduct was faulty and caused the damage. In the case of defects attributable to the manufacture of the object supplied the Supplier shall bear the burden of proof for his non-culpability. This provision applies also in relation of justified recall obligations within the framework of product liability. The Supplier undertakes to conclude a corresponding third party liability insurance, in particular to conclude an adequate product liability insurance. On request the policy shall be submitted to us. Regardless of these the Supplier shall indemnify us against any justified claims including any costs arising from legal proceedings, by third parties which are based on a defective delivery. Seite 4/5

5 12 Industrial property rights, rights of use Terms and Conditions of Purchasing as of 6.Nov.02 The Supplier shall ensure that the performances provided by him are free of industrial rights of third parties which exclude or impair their use by us or that he is authorised to transfer the corresponding rights of use to others. The Supplier shall indemnify us against any claim by third parties which are asserted against us due to the use of the working results provided by him. This shall not apply if the Supplier was neither aware of the existence of the rights of third parties nor should he have been aware. All rights of use relating to copyright, commercial property rights and legal positions resembling protective rights pertaining to the contractual performance and arising from all other written, machine-legible or other working results created in the course of executing this order shall pass on to us without additional conditions and without any additional payment. We shall be entitled to the said rights in terms of space, time and content without any restrictions and exclusively and we may be expand, transfer, revise, adapt, modify, duplicate and publish these without the consent of the Supplier. The Supplier grants us the right to file patent applications relating to patentable developments. 13 Limitation of liability / resignation Unless provided otherwise in what follows claims of the Supplier due to violation of duties arising from the relationship under the laws of obligation and from tortious acts shall be excluded. The above limitation of liability shall not apply in the event of gross negligence by us or gross negligence or intent of our statutory representatives or of vicarious agents. Furthermore the limitation of liability shall not apply in the event of damages arising from injuries to life, to the body or to health. If the Supplier suspends or ends the collaboration during the development period of the samples or of the means of production without us being responsible for this then all costs incurred up to that time shall be borne by the Supplier. 14 Final provisions These Terms and Conditions of Purchasing and the entire legal relations between us and the Supplier shall be governed by the laws of the Federal Republic of Germany. The application of United Nations convention on the sale of goods of 11 April 1980 relating to purchase of goods (CISG "Vienna Convention ) shall be excluded. Exclusive place of jurisdiction for all direct and indirect disputes arising from the contractual relationship shall be Bad Kreuznach and at our option also the place of jurisdiction of the Supplier. Place of performance for deliveries and performances shall be the receiving location stipulated by us, place of performance for payments shall be Bad Sobernheim. Should a provision of these Terms and Conditions of Purchasing or other agreement be or become ineffective this will not impair the effectiveness of other provisions and agreements. In such a case the invalid provision shall be re-interpreted or supplemented such that the economic purpose pursued by it shall be achieved in a legally admissible manner. We both save and process business-related and personal data. Any references by the Supplier to existing business relationship to us for the purposes of advertising shall require our express consent. Seite 5/5