General Terms and Conditions of Purchase. Montaplast GmbH

Transcription

1 General Terms and Conditions of Purchase of Montaplast GmbH 1. Application and Scope 1.1 Montaplast GmbH ("Buyer") purchases all its products, parts, components, systems and other production material ("Parts") as well as services of the Supplier which are connected therewith in accordance with the following General Terms and Conditions of Purchase ("Terms"). 1.2 Furthermore, these Terms shall equally apply to the purchase / supply of tools, spare parts and special machines. 1.3 The general terms and conditions of delivery or other differing terms and conditions of Supplier shall not apply, unless they are expressly approved by Buyer in writing. These Terms shall also apply if Buyer accepts deliveries by Supplier without any objections to Supplier's terms and conditions differing from these Terms (whether Buyer had knowledge of them or not). All references or indications of Supplier to the application of Supplier's general terms and conditions of sale and delivery or other differing terms are herewith expressly objected to. These Terms shall also apply to all future transactions with Supplier. 1.4 The provisions of these Terms shall apply in addition to any and all other agreements entered into by the Parties, e.g. framework supply agreements, quality assurance agreements. 2. Conclusion of Contract 2.1 Any requests of Buyer to Supplier about Parts and services and their conditions of supply or any requests of Buyer to submit an offer are in no case binding for Buyer. 1

2 2.2 To the extent the Parties enter into a framework agreement (based on these Terms or otherwise), this agreement shall, however, not be binding concerning the scope of supply; based on such agreement Buyer shall place the Purchase Orders specifying the scope of delivery. 2.3 A Purchase Order of Buyer (irrespective of whether placed independently or as part of a framework agreement) is an offer to Supplier to acquire Parts or services. The Purchase Orders of Buyer are only binding if they are made in writing. Buyer must not sign the Purchase Orders. The written form requirement is met if the Purchase Orders are made by telefax, or via electronic data communication. 2.4 A binding contract concerning the supply of Parts or the rendering of services by Supplier (hereinafter referred to as "Supply Agreement") on the basis of the Purchase Order and including these Terms (and, to the extent applicable, a framework agreement) shall be effective upon receipt of the Purchase Order by Supplier, unless Supplier objects to the Purchase Order (or the conclusion of the Supply Agreement) within 3 days after receipt of the Purchase Order. 2.5 Purchase Orders made orally or by telephone are not binding and constitute under no circumstances a contractual relationship. Oral agreements must be confirmed in writing. Furthermore, any changes of the agreements (subject to the detailed provisions in Section 7) as well as side agreements shall be valid only if made in writing. 2.6 In case of discrepancies between the Purchase Order (and the Supply Agreement, respectively), the framework agreement, the quality assurance guideline for suppliers (Quality Assurance Agreement, hereinafter "QAA") and these Terms the documents shall apply in the following sequence: - Purchase Order/Supply Agreement, - Framework Agreement (to the extent agreed upon), - QAA (to the extent agreed upon), - Purchase Terms (to the extent included). 2

3 3. Prices and Terms of Payment, Retention of Title, Most-Favoured Treatment 3.1 The prices and terms of payment determined in the framework agreement or Supply Agreement are binding. The prices are fixed prices and form the total price for the manufacture and delivery of Parts and the rendering of services. The statutory value added tax is not included in the price and will be invoiced separately. 3.2 The price includes, in particular, the delivery to the delivery address (cf. Clause 5.1) as well as packaging, shipping, insurance and all other such costs. 3.3 Unless otherwise provided for in the framework agreement or the Supply Agreement, the price includes the delivery "DDP" pursuant to Incoterms 2010 including packaging. If "EXW" pursuant to Incoterms 2010 is agreed as delivery condition, transportation must be effected by a carrier approved by Buyer. 3.4 The invoice amount shall be paid, at Purchaser's option, as follows: for invoices and goods received between the 5 th until 20 th day of the current month payment shall be made on the following 25 th calendar day, for invoices and goods received between the 21 st day of the current month until the 4 th day of the following month, payment shall be made on the following 10 th calendar day, each time after deduction of 3% discount or within 30 days net. If the day on which payment shall be made is a weekend or a public holiday, payment shall be effected on the next business day. The fees for the international payment transaction shall be borne by Supplier. 3.5 The payment of Buyer shall be made by wire transfer or cheque. Other methods of payment as well as credit / set off procedures must be agreed upon separately between the Parties in order to apply. 3.6 Unless credit / set off procedures have been agreed upon with Supplier, invoices of Supplier can only be processed by Buyer if in accordance with the requirements of the respective Purchase Order they contain the order number and the article number as indicated in the Purchase Order as well as in the case of tools or investment goods the respective project number; Supplier shall be responsible for 3

4 all consequences resulting from the non-compliance with this obligation provided Supplier is at fault. 3.7 Irrespective of Section 354 a HGB (German Commercial Code), Supplier may not assign, without Buyer's written consent, any claims it is entitled to under the delivery relationship with Buyer or collect any such claims from third parties. 3.8 Without Buyer's prior express written consent Supplier must not adjust the prices and charge any additional costs. In case of delayed receipt of invoices or goods and delivery of defective goods Buyer is entitled to withhold the payments respectively. 3.9 Upon full payment of the purchase price the title to the Parts shall pass to Buyer. Any enlarged or extended retention of title (verlängerter oder erweiterter Eigentumsvorbehalt) of Supplier to the goods is excluded If during the term of a Supply Agreement Supplier delivers the Parts being the subject matter of this Supply Agreement or similar parts in comparable quantities to a third party under more favourable conditions, in particular with respect to price, discounts, technology, quality, terms of payment, delivery deadlines or other terms and conditions (hereinafter referred to as "Conditions") Supplier shall notify Buyer thereof without undue delay and automatically grant Buyer these more favourable Conditions. The new Conditions shall apply retroactively from the date Supplier granted these more favourable Conditions to the third party. 4. Calls for Delivery and Quantities of Delivery 4.1 The quantities of Parts to be delivered are exclusively determined in the Supply Agreement or in the calls for delivery. 4.2 The calls for delivery are subject to the provisions contained in the Supply Agreements and the framework agreements, respectively. A call for delivery is binding for the Supplier unless Supplier rejects such call for delivery due to the unreasonableness of quantities or deadlines by stating the earliest possible date for delivery in writing within twenty four (24) hours if the delivery shall take 4

5 place during the next fifteen (15) days, otherwise within two (2) weeks after receipt of the call for delivery. 4.3 Supplier shall ensure the required capacities in order to be able to fulfil the quantities of delivery referred to in the Supply Agreement or the calls for delivery. 4.4 Buyer may postpone the calls for delivery or request a temporary suspense of scheduled deliveries; this does not entitle Supplier to change the prices of the Parts. 5. Delivery and Transfer of Risk 5.1 The delivery (including transfer of risk) shall comply with the trade terms (in particular the Incoterms 2010) customary in the automotive industry and specified in the Purchase Order (or the Supply Agreement) and/or the framework agreement at the specified delivery address or place of receipt ("Delivery Address"). In the absence of such provision, the delivery shall be made DDP (Incoterms 2010) to the Delivery Address provided for in the Purchase Order or the framework agreement. If the Purchase Order or the framework agreement do not determine a Delivery Address, the delivery must be effected to Montaplast GmbH in Morsbach, Germany. The risk shall pass upon delivery at the agreed upon Delivery Address. 5.2 Each shipment shall contain a packing slip containing the Purchase Order number, number of the call for delivery and the number of the individual Parts. 5.3 All goods shall be duly packed, labelled and shipped in accordance with the due care customary in the trade in such a way that the lowest transport costs are incurred. 5.4 The Logistics und Packaging Manual ( Allgemeine Logistik- und Verpackungsvorschrift, available at the Montaplast website in the field Procurement or upon request from Buyer) shall apply. 5.5 Supplier shall attach to the deliveries the related delivery notes. The delivery notes must contain the Purchase Order numbers of Buyer and the number of 5

6 Supplier. If these requirements are not met, Supplier shall be responsible for any delays arising therefrom. 5.6 Supplier shall mark the Parts, packing materials and packaging as instructed by Buyer or otherwise pursuant to applicable law and the standards of the automotive industry. Unless otherwise provided for in the Supply Agreement, the labelling shall be made in the German language and be displayed either in bar code or in any other form determined by Buyer or by law. 5.7 Supplier shall provide a supplier's declaration in accordance with Directive (EC) No. 1207/2001 of June 11, 2001 (Official Journal of June 21, 2001, L 165/1) concerning the preferential origin of the Parts. At the latest at the time of delivery a certified annual Supplier's declaration (long term Supplier's declaration) must be submitted. This declaration must be renewed without request prior to the expiration of this period. Each change with respect to the origin of the Parts shall be notified to Buyer without undue delay. Supplier shall make available to Buyer without undue delay, completely and duly all documents (in particular customs certificates and documents for refund of customs duties paid) required under the applicable customs provisions. If additional official documents for the use of the Parts in accordance with their specifications are required for the export or import of the Parts, Supplier shall make these documents available to Buyer or procure them without undue delay. 5.8 Supplier shall comply with the requirements set forth in the applicable current regulation on packaging. Supplier must take back used, completely emptied packaging free of charge. If this is not possible, Supplier shall bear the respective reasonable disposal costs incurred by Buyer. 6. Date of Delivery and Default of Delivery 6.1 The delivery of the Parts must be effected to the Delivery Address (cf. Clause 5.1) at the time mentioned in the Supply Agreement or in the call for delivery or otherwise agreed between the Parties in writing ("Date of Delivery"). 6.2 Buyer is not obliged to accept early deliveries, excess deliveries or non-agreed partial deliveries. Supplier shall bear the risk of loss of Parts delivered prior to the Date of Delivery. Buyer is entitled to return excess deliveries at Supplier's costs; 6

7 Supplier shall bear the costs for packaging, processing, sorting and shipping in such case. Buyer is entitled to store all Parts or excess deliveries delivered prior to the Date of Delivery applicable pursuant to Clause 6.1 at Supplier's risk and costs until the due Date of Delivery. If Buyer accepts early deliveries or excess deliveries on this basis, Buyer shall, nevertheless, not be obliged to make the payment earlier than on the due date in accordance with the scheduled Date of Delivery. 6.3 If Supplier for whatever reason can probably not keep the Date of Delivery, it must notify Buyer without undue delay in writing. 7. Force Majeure 7.1 Any disturbances of delivery due to events which are unforeseeable and unavoidable and which lie beyond the sphere of influence of either Party and for which the Party concerned does not bear any responsibility, such as Acts of God, labour disputes (strike and lock-out), war, riots, terrorist attacks or natural disasters, release the Parties from their obligation to perform for the duration of such disturbance and during a reasonable period thereafter and in the scope of its effect. 7.2 If the end of such disturbance is not foreseeable or should it continue for more than two (2) months, each Party is entitled to rescind the respective Supply Agreement (or its part which has not been fulfilled) or to terminate the Supply Agreement without notice. 8. Modification Management 8.1 Changes to a Supply Agreement including changes to quantities, method of shipment, packaging, time or place of delivery or changes in the drawings or specifications must be mutually agreed by the Parties and recorded in writing, taking into account and reflecting any resulting increases in costs or time possibly required for the performance of the contract. With respect to technical modifications, in particular modifications of Buyer's drawings or specifications, the following provisions of this Clause 8 shall apply in addition: 7

8 8.2 Buyer may at all times also during serial production request technical modifications of the Parts. Immediately after receipt of Buyer's request for modification, Supplier shall submit a cost estimate on possible cost increases or reductions as well as information on deadline shifts and consequences on the weight, function and quality resulting from the modifications. Supplier is obliged to keep the costs caused by the modification requested by Buyer as low as possible. 8.3 Supplier will fulfil the request for modification as soon as the Parties have reached an agreement on any increased or reduced costs, deadline shifts as well as the consequences of the changes on weight, function and quality. 8.4 If in Supplier's opinion technical modifications or deviations are reasonable e.g., due to more efficient production methods or for the improvement and increase of safety of the Parts or for an adjustment to the engineering progress Supplier will propose them to Buyer; simultaneously information must be given about the consequences on price, delivery dates, etc. Buyer shall examine these modifications proposals without delay and shall not randomly refuse their acceptance. 8.5 Supplier shall not perform any technical modifications until it has received Buyer's written approval. The procedure concerning the initial sample tests (Erstmusterprüfung) must be repeated with respect to all Parts which are subject to technical modifications after the original product release. 8.6 Buyer's technical documents, drawings and plans must be examined by Supplier with regard to their completeness and correctness prior to commencement of processing or production. If Supplier considers them to be incomplete or to contain faults or defects, Supplier is obliged to notify Buyer accordingly in writing without delay (but in any case prior to commencement of the processing or production); any missing technical documents, drawings or plans must be requested in writing without delay. Buyer's technical documents, drawings and plans may not be forwarded to any third party and shall be returned to Buyer as soon as it requests their return, at the latest, however, upon completion of the assignment. 9. Quality Management 8

9 9.1 During the development and manufacture of the Parts Supplier shall comply with the latest state-of-the-art of science and technology and with all quality standards and legal requirements which apply to the Parts. The same shall apply to any customer requests submitted by Buyer from time to time, in particular the Quality Guideline for Suppliers (Quality Assurance Agreement) ( Qualitätssicherungsleitlinie für Lieferanten (Qualitätssicherungsvereinbarung), available at the Montaplast website in the field Purchasing or upon request from Buyer). Prior to the commencement of production of the Parts or the rendering of services for Buyer, Supplier shall sign the Quality Assurance Agreement and send it to Buyer. If Supplier received drawings, samples or other instructions or documentation from Buyer, it shall comply with them concerning the implementation and quality of the Parts. Modifications of the Parts, of an already released production process or, as the case may be, its relocation to another production site are subject to Buyer's prior written approval. 9.2 Supplier shall, in particular, presently and in the future, maintain a quality management system in accordance with ISO/TS 16949:2009. As an alternative, a quality management system which corresponds to and is consistent with the standards in the automobile industry according to VDA 6.1 or ISO 9001:2008 may be agreed by the Parties at Supplier s request. If Supplier does not meet the quality levels required by any such quality management system and Supplier does not correct such deficiencies within three months after notification by Buyer, in addition to any other rights of Buyer, Buyer may terminate the Supply Agreement immediately without any further obligations to Supplier. 9.3 Supplier must fulfil all requirements which are necessary in order to timely complete the material release procedures of Buyer and its customers. 9.4 In accordance with the quality standards of the automobile industry Supplier is always obliged to make an initial sample test (Erstmusterprüfung) according to ISO/TS 16949:2009, at the latest prior to the production release for serial production. 9

10 9.5 Prior to the conclusion of the Supply Agreement, Supplier shall analyse and examine the specifications and drawings of the Parts. Supplier acknowledges that the specifications and drawings are sufficient and suitable to manufacture the Parts in accordance with the Supply Agreement. Upon demand, Supplier shall participate in all quality and development programs of Buyer and its customers. 9.6 Buyer may, upon reasonable notice, during normal business hours, make reasonable inspections at such intervals as Buyer deems necessary, of the facilities where Supplier manufactures the Parts. Supplier ensures that its sub-contractors also grant Buyer the same right of inspection. 9.7 Any inspection or examination pursuant to Clause 9.6 shall neither be deemed to constitute acceptance of the Parts or of a part of the Parts nor shall it release Supplier from complying with any express or implied condition contained in the Supply Agreement. In case of development works the release by Buyer does not relieve Supplier from its product responsibility. 9.8 If Supplier intends to relocate its production facilities or its production site it must notify Buyer in advance in a reasonable way; Supplier must comply with a deadline of at least 30 days until the disassembly or relocation of the production equipment may start and must manufacture Parts in sufficient quantity. Moreover, Supplier must continuously check with Buyer the consequences for production and delivery of the Parts, in particular, organize new models of initial samples of the Parts upon completion of such relocation. 9.9 All quality related documentation, in particular, release declarations must be kept for a period of at least 15 years after the end of the serial production of the relevant series. 10. Inspection of Incoming Goods Buyer shall inspect the Parts delivered by Supplier upon receipt for any deviations with respect to identity and quality as well as for outwardly visible damages if and to the extent this is possible in the ordinary course of business. Buyer shall notify Supplier immediately about any defects discovered during such inspection. 10

11 Furthermore, Supplier waives any further inspection of incoming goods at Buyer's premises. Other defects which are discovered by Buyer only during processing or intended use of the Parts shall be notified to Supplier by Buyer immediately upon their discovery. To this extent Supplier waives the defence of delayed notification of defects. 11. Warranty 11.1 Supplier warrants that all delivered Parts: (i) (ii) (iii) comply with the specifications, samples, drawings and other requirements requested by Buyer, are free from defects (in particular, concerning design, production and material), are suitable for the specific purposes for which they are purchased if and to the extent Supplier knows these purposes If prior to the commencement of production (processing, installation or fitting) Buyer discovers Parts which do not meet the requirements pursuant to Clause 11.1 ("Defective Parts"), the following shall apply: Supplier must, at Buyer's option, deliver without delay defect-free new Parts (replacement parts) or remedy / repair the defects of the Defective Parts (hereinafter together "Supplementary Performance"). Any possibly required sorting works or other reworking will be carried out by Supplier in coordination with Buyer at Buyer's premises. All costs incurred by Supplier or Buyer in connection with the delivery of the Defective Parts (in particular, costs for sorting, transportation, investigating (including expenses for research and development) the causes of the defects, etc.) shall be borne by Supplier If a defect is discovered after the commencement of production, the provisions of Clause 11.2 shall initially apply; furthermore, the following shall apply: 11

12 (i) (ii) If a defect is discovered before Buyer's products are delivered to its customers, then Supplier shall also bear the costs for all Supplementary Performances (labour costs, material costs, costs for further tools required). The same shall apply for possibly incurred costs for disassembling and assembling. If a defect is discovered only after Buyer's products have already been delivered to its customer or even to the latter s end customer (consumer) Supplier shall bear in addition the portion of costs incurred for taking back and/or any field measures which correspond to the causal or fault contribution of Supplier. Buyer shall inform Supplier upon the occurrence of such defects and on the further procedure and any measures to be taken If the Supplementary Performance fails, is unreasonable for Buyer or if Supplier fails to commence the Supplementary Performance without undue delay, Buyer is entitled to rescind the Supply Agreement without any further notice and to return the Parts at Supplier's risk and costs. In these and other urgent cases, in particular, in order to avoid imminent danger or to prevent larger damage and in case it is no longer possible to inform Supplier about the defect and to set an even short period to remedy the defect, Buyer is entitled to remove such defects itself at Supplier's costs or have a third party remove such defects The warranty period shall be (i) for Parts which are "Production Material" thirty six (36) months in each case from the initial registration of the car into which the Parts were fitted, at most, however, (42) months from handing over / delivery to Buyer (ii) for all other items (e.g. spare parts or tools) thirty six (36) months from delivery to Buyer. 12. Product Recall and Other Field Actions 12

13 If a recall action or an owner information program or any field action shall be required in order to comply with a statute, a regulation, ruling or any other governmental request or to take a security measure in order to prevent personal injuries or death or if a field or service action takes place based on a decision by Buyer's customer, the costs including, among others, costs for labour, transportation and traceability, shall be allocated on the basis of the contributory default (Section 254 German Civil Code BGB) of Buyer or Supplier or their respective causal contributions. Buyer shall inform Supplier to the extent possible and reasonable about content and scope of the recall actions or owner information program or any field action to be carried out and shall provide Supplier with the opportunity to comment thereon. All other statutory claims remain unaffected. 13. Liability, Product Liability and Insurance 13.1 Supplier shall compensate Buyer for or indemnify Buyer from all direct or indirect claims (including claims for death, personal injuries, injury to health or damage to property), damages (including any and all indirect damages and consequential damages as well as damage to the environment), costs, expenses and losses ("Damage") caused by the delivery of Defective Parts or breach of an obligation under this Supply Agreement. In case of fault liability this does not apply if Supplier is faultless If the services or other services rendered by Supplier also include works to be performed at Buyer's premises or at the premises of one of its customers, Supplier shall take all required security measures for the prevention of personal injuries and damage to property during such works. Supplier shall compensate and indemnify Buyer from all Damage caused by works performed by Supplier at the premises unless Supplier is not at fault. Furthermore, Supplier must comply with Buyer's house rules, which shall be made available to it on demand To the extent Supplier caused a product defect and/or (depending on the underlying basis for claim) is responsible for the defect, Supplier is obliged to pay damages or to indemnify Buyer against any third party claims upon first demand pro- 13

14 vided the cause of the claim lies in Supplier's sphere of control and organization and Supplier itself would be liable vis-à-vis third parties. Insofar as Buyer has contributed any fault or causation Supplier may assert such contributory fault or contributory causation against Buyer. As between Buyer and Supplier their respective share of damages shall be subject to their respective pro rata contribution of causation and/or fault (Section 254 BGB). Supplier's obligations also include the costs incurred by Buyer for taking legal advice or otherwise in connection with the defence of product liability claims. If in relation to the injured party Buyer is subject to specific provisions concerning the burden of proof, these provisions concerning the burden of proof shall also apply to the relationship between Buyer and Supplier unless the circumstances to be proved fall within Buyer's responsibility Supplier shall provide a reasonable insurance coverage (in particular business liability insurance, product liability insurance and recall insurance) for its obligations under the Supply Agreement. Supplier shall provide Buyer with the respective insurance policy Supplier shall be liable for its representatives or sub-contractors to the same degree as for its own conduct. 14. Tooling, Provisions 14.1 All parts, raw materials, tools, materials (matrixes, templates, measuring instruments, moulds) or other equipment or items (including replacements, additions, accessories) which are provided by Buyer or are purchased by Supplier at Buyer's costs (and whose purchase costs are reimbursed by Buyer or have been included into the prices to be paid for the Parts and have been fully paid) ("Tooling") remain and are the sole property of Buyer. All rights to drafts, samples, drawings, data, models or other information and documentation ("Documentation") also remain Buyer's property. Supplier shall not use the Tooling and Documentation for the manufacture or construction of the Parts for third parties without prior written consent of Buyer Supplier possesses the Tooling and Documentation in its capacity as borrower and shall keep them separately and apart from any property of other persons and 14

15 shall label them clearly as Buyer's property. Supplier shall bear the risk of loss of the Tooling and Documentation while they are under Supplier's custody or control. Supplier shall handle the Tooling and Documentation with great care and shall indemnify Buyer from any claims, liability, costs and damage resulting from their installation, use, storage or repair or are connected therewith. Without Buyer's written consent they shall not be removed from Supplier's premises except for any contractual performance. Supplier shall perform the possibly required repairs within the normal intervals at its own costs. It shall immediately inform Buyer about any damage or disturbances To the extent Buyer provides products, raw materials or other material for the manufacture of the products to Supplier, Buyer retains title to these goods ("Retained Property"). Any processing, alteration or installation or transformation of the Retained Property by Supplier shall be for Buyer. If the Retained Property is processed with other goods not being Buyer's property, Buyer shall acquire joint ownership of the new product in the ratio of the value of the Retained Property (purchase price plus value added tax) to the other processed goods at the time of processing If the Retained Property provided by Buyer is inseparably joined or blended with other goods not being Buyer's property, Buyer shall acquire joint ownership of the new product in the ratio of the value of its Retained Property (purchase price plus value added tax) to the other joined or blended goods at the time of joining or blending. Should the joining or blending occur in such a manner that Supplier's goods have to be viewed as the main goods, it shall be deemed to have been agreed that Supplier shall assign proportionate joint ownership to Buyer; Supplier shall store and keep Buyer's sole property or Buyer's joint ownership on behalf of Buyer. 15. Acquisition of Necessary Tools of Supplier 15.1 Supplier grants Buyer the irrevocable option to acquire at any time ownership of or title to the tools which are necessary for the manufacture of the Parts ("Necessary Tools") against payment of their current value less any amounts already paid by Buyer to Supplier or amortized by the price for the Parts. This option shall not be available if Supplier needs the Necessary Tools for the manufacture and deliv- 15

16 ery of the Parts pursuant to a valid (in particular not terminated) supply agreement or for the manufacture of its other standard products If the option pursuant to Clause 15.1 is exercised, Supplier shall provide Buyer with all technical information and safety instruction for the use needed for the installation, assembling and other use of the Necessary Tools. 16. Intellectual Property Rights 16.1 Supplier shall ensure that in connection with the purchase, ownership, offering, use, processing or resale of the Parts Buyer or Buyer's customers do not infringe any third parties intellectual property rights, in particular, do not infringe any trademarks, company names, names, patents, petty patents, registered designs, presentation designs or copy rights of third parties (including respective applications for protection of these rights ("Intellectual Property Rights") in Supplier's country of origin as well as in the Federal Republic of Germany, the European Union, the United States of America, Canada, Mexico, Brazil, Argentina, South Africa, China, India, South Korea and Australia. If Supplier culpably infringes this obligation, it shall upon Buyer's first demand indemnify Buyer and its customers from any claims raised by third parties due to actual or alleged infringements of Intellectual Property Rights and shall bear all costs and expenses incurred by Buyer in this context, in particular on one side all costs incurred in connection with litigation and defence and on the other side all costs resulting from the compliance with a possible cease and desist obligation Clause 16.1 shall not apply if the Parts were manufactured in accordance with drawings, patterns or other detailed information provided by Buyer and Supplier neither knew nor should have known that thereby third party Intellectual Property Rights are infringed The Parties shall inform each other without undue delay about any and all infringement risks and alleged cases of infringement of third party Intellectual Property Rights which become known to them and shall within a reasonable scope amicably take actions against respective infringement claims The limitation period shall be 3 years from the conclusion of the respective contract. 16

17 17. Commissioned Development To the extent Supplier performs development works for Parts (production material) or Tooling (in particular tools) the costs of which are reimbursed by Buyer either separately and/or by the prices to be paid for the Parts (commissioned development) the following shall apply: 17.1 Supplier shall achieve a development target free of any third party Intellectual Property Rights; Clause 16.1 shall apply accordingly Upon their completion, the proprietorship in all development results (including all inventions, know-how, reports on testing and development suggestions, ideas, drafts, creations, proposals, samples, models, etc.) which Supplier develops during the cooperation ("Work Products") shall be owned by Buyer To the extent the Work Products are capable of being protected as Intellectual Property Rights, Buyer shall, in particular, be entitled at its own discretion to apply in its own name for registration of Intellectual Property Rights both in Germany and abroad, to maintain them and also abandon them at any time Supplier shall claim without restriction the right to protectable inventions made by its employees in the course of carrying out this Agreement by declaration to the inventor; the right to the invention shall be transferred without undue delay to Buyer To the extent the Work Products are protected by copyrights of Supplier, Supplier grants Buyer as well as its affiliated companies the exclusive, royalty-free, irrevocable, assignable right, unrestricted as to time, territory and content, to use and exploit the Work Products in any kind and manner free of charge and in any order. If the Work Products consist in the form of software, the rights of use and exploitation are not limited to the object code. Buyer may, in particular, claim the delivery of the source code and the documentation. Buyer may, at any time, request this delivery even during the carrying out of the development project Supplier (as well as its affiliated companies) is and remains the owner of the inventions made prior to the cooperation and the protection rights applied for or 17

18 registered thereof, as well as of all copyrights, registered designs and know-how ("Old Intellectual Property Rights") existing prior to the cooperation To the extent the Old Intellectual Property Rights are required for the exploitation or further development of the development results Buyer shall receive a royalty-free, non-exclusive, sub-licensable, assignable and irrevocable right to use the Old Intellectual Property Rights, unrestricted as to time and territory If and to the extent Supplier employs sub-contractors for the services to be rendered by Supplier, Supplier shall ensure by way of appropriate contractual agreements that Buyer receives the proprietary and user rights in accordance with the provisions contained in Clause

19 18. Supply of Spare Parts 18.1 During the scheduled useful life cycle of the products for which the Parts shall be used Supplier undertakes to supply the spare parts. The minimum period is 15 years after discontinuation of the series production of the Parts The price for the spare parts is in each case the current price determined in the Supply Agreement In good time before the expiration of the minimum period Supplier shall grant Buyer the opportunity to place a final order for its permanent demand (Allzeitbedarf) With respect to other delivery items which are not installed into a car Supplier warrants a smooth supply of spare parts at prices in line with the market for a period of at least fifteen (15) years from the date of delivery. 19. Compliance with Statutes, Safety, Environmental Protection, Hazardous Substances 19.1 Supplier must comply with all applicable federal, state or local statutes, regulations, provisions or rules and industry standards concerning the Parts and services as well as in performing the Supply Agreement. In performing its contractual obligations Supplier must, in particular, comply with all statutory and official regulations concerning environmental protection, product safety and labour law provisions. It shall, in particular, maintain an environmental management system pursuant to ISO 14001:2004 (or establish such within 6 months after conclusion of the Supply Agreement) 19.2 With respect to parts and materials as well as with respect to procedures which, based on the statutes, regulations, other provisions or based on their composition and effects on the environment, demand specific attention, among others, with regard to transportation, packaging, labelling, storage, treatment, manufacture and disposal, the mandatory statutory provisions set forth for the country of manufacture as well as the country of origin must be complied with by Supplier. 19

20 19.3 Supplier is, in particular, responsible for the compliance with the respective regulations concerning hazardous materials. Supplier shall, in particular, ensure that for the handling of hazardous goods and substances only those employees are appointed who are specifically trained for this handling and that only such appliances, boxes and facilities are used which are approved for the transportation of those hazardous goods and substances on public roads. Supplier is obliged to prepare a summary concerning the hazardous goods and substances which it uses for the implementation of the supply agreements and to keep the respective safety data sheets ready Supplier shall ensure that the requirements of the EU Directive concerning chemicals REACH (Directive (EC) No. 1407/2006, Official Journal of EC of December 30, 2006) hereinafter "REACH" are complied with, in particular, that the pre-registration and the registration are effected timely in each case. Buyer is by no means obliged to effect the (pre)-registration. Supplier acknowledges that the Parts may not be used if the requirements set forth by REACH are not completely and duly met The ingredients (heavy metals) covered by the EU End of Life Vehicles Directive shall be entered into the IMDS database by Supplier at its own costs and are, thus, deemed declared Supplier shall fully indemnify Buyer from and against all consequences, in particular damage incurred by Buyer and third party claims against Buyer resulting from the fact that Supplier culpably did not, did not fully or did not timely comply with or fulfil the above provisions of this Clause Cancellation / Termination of Purchase Orders / Contracts To the extent the Parties agreed on a framework agreement based on which Buyer places orders with Supplier concerning the delivery of Parts or the rendering of services, with respect to term and termination the following provisions shall apply: 20.1 Buyer is entitled to terminate these contracts with six months' prior written notice. 20

21 20.2 In those cases in which Buyer's customer cancels its purchase order without cause or exceptionally, Buyer is entitled without prejudice to its right to termination pursuant Clause 20.1, to enter into another arrangement with Supplier to reflect such circumstances Each Party is entitled to terminate a contract for good cause at any time. Good cause shall exist, in particular, in the following cases: (i) (ii) (iii) suspension of payment by one Party, commencement of insolvency proceedings over the assets of one Party or its dismissal for lack of assets or liquidation of one of the Parties; breach of substantial contractual obligations; in case of any breach which may be remedied, however, only after the innocent Party has requested the other Party in writing to remedy the breach, warning the other Party of an imminent termination for good cause and setting a reasonable grace period of at least four weeks which period has expired without success; due to a change of its shareholders or stockholders one Party comes under the dominating control of a competitor of the other Party In case of a cancellation or other termination of the Supply Agreement, Supplier must return all items provided by Buyer, including all drawings and other documentation, appliances and tools. 21. Confidentiality 21.1 The Parties shall keep confidential all Confidential Information which they received directly or indirectly from the respective other Party. Also the Purchase Orders and any and all commercial and technical details connected therewith must be kept as Confidential Information. In particular, all illustrations, drawings, calculations, quality directives, samples and other items must be kept confidential. The copying and transmission of Confidential Information is only permissible within the scope of the operational requirements. It may be disclosed to third parties only upon prior written consent of the respective other Party. 21

22 21.2 The above obligations do not apply to Confidential Information in relation to which the receiving party may prove that the Confidential Information - at the time of disclosure was already part of the public domain or thereafter became publicly accessible without fault of the receiving party; - at the time of disclosure was already in the possession of the receiving party; - has been made available to the receiving party by a third party which was under no confidentiality and non-use obligation provided, however, that these third parties did not receive the information directly or indirectly from the respective other party; - must be disclosed to authorities due to statutory provisions Supplier shall oblige the sub-contractors to comply with this duty of confidentiality to the same extent. Supplier may use the disclosed Confidential Information of Buyer exclusively within the scope as intended by this Agreement The duty of confidentiality shall survive the cancellation of the supply relationship for a period of 5 years. Upon termination of the supply relationship Supplier shall return to Buyer all Confidential Information which it received to the extent it is embodies or saved on electronic storage media. At Buyer's request, Supplier shall confirm in writing the fulfilment of the obligations contained in the last two sentences. 22. Miscellaneous 22.1 If any provision of these Terms is invalid, unlawful or unenforceable, then such provision shall be deemed amended or limited to such extent as is necessary to turn this provision into a valid, lawful and enforceable provision. If such an amendment or limitation is not possible, the invalidity of one or several provision(s) shall not affect the validity of the remaining provisions or the validity of the Agreement Without Buyer's prior written consent Supplier shall not be entitled to assign any rights or obligations under this Supply Agreement, whether in whole or in part. 22

23 22.3 Without Buyer's prior written consent Supplier may not employ one or several sub-contractors for the implementation of this Supply Agreement or any part thereof. 23. Governing Law, Place of Jurisdiction, Place of Performance 23.1 The contractual relationship between Buyer and Supplier shall be governed by the laws of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods (CISG) Exclusive place of jurisdiction shall be Cologne. Buyer is entitled to sue Supplier at any other court or to judicially assert claims against Supplier otherwise Place of performance for all obligations under the contract is the place of Buyer mentioned in the Purchase Order as Delivery Address. 23