GENERAL TERMS AND CONDITIONS OF PURCHASE OF CADCON HOLDING GMBH

Transcription

1 1. General 1.1. The general terms and conditions of purchase below of CADCON Holding GmbH (hereinafter referred to as "CADCON") apply to the ordering from the Contractor and the delivery of goods by the Contractor, as well as to the manufacture of works (hereinafter referred to as "deliveries") and the performance of services (hereinafter referred to as "services") These shall apply both to CADCON as well as to the following CADCON Group companies: AID Technische Dokumentationen GmbH & Co. KG, CADCON Ingenieurgesellschaft mbh & Co. KG, CADCON Maschinenbau GmbH, CADCON Personalgesellschaft mbh & Co. KG, TOV CADCON Ukraine as well as to future companies which are associated with CADCON in analogue terms in accordance with 15 of the German Stock Corporation Act (AktG) The general terms and conditions of purchase shall also apply as a framework agreement in the respective version for future contracts with the same contractor, without CADCON being required to refer to them in individual cases The general terms and conditions of purchase shall apply exclusively. Terms and conditions of business of the Contractor which deviate from, oppose or supplement these general terms and conditions of purchase shall not be binding on CADCON. The above provision shall also apply even if no express objection is lodged by CADCON. No acceptance of the terms and conditions of the Contractor shall be substantiated by the receipt of deliveries and services by CADCON without reservation or by means of their payment by CADCON All agreements which are concluded between CACON and the Contractor in respect of the performance of this contract, as well as declarations and notifications which are to be made in relation to CADCON following the conclusion of the contract (for example the setting of deadlines, warnings, declarations of rescission) must be recorded in writing. Individual agreements with the Contractor shall take priority over these general terms and conditions of purchase References to the validity of statutory regulations shall only have an explanatory function. Therefore, the statutory regulations shall also apply without such a clarification, to the extent that they are not directly changed or are explicitly excluded in these general terms and conditions of purchase. 2. Conclusion of the contract 2.1. Orders and engagements from CADCON (hereinafter referred to in summarised form as "orders") shall not become binding until written submission or confirmation. The orders can only be accepted by the Contractor within a deadline of two weeks by means of a written declaration. A delayed or deviating acceptance (order confirmation) shall be deemed to be a new offer and shall require express acceptance by CADCON. Payments or acceptance of deliveries and services shall not mean agreement The acceptance of orders must contain all essential order data, in particular the precise description of the ordered deliveries and services, the order number and article code, as well as the date of placing of the order and delivery Cost quotations shall be binding and shall not be remunerated, unless expressly agreed otherwise in writing. 3. Prices, payment terms 3.1. The agreed prices shall be binding. These shall be net fixed prices (without value added tax) and shall include all services and ancillary services of the Contractor (for example installation and assembly) and all secondary expenses (for example proper packaging, transportation costs including and transportation and liability insurance) as well as duties (taxes, fees etc) An invoice must contain the information described in Number 2.2 and may not summarise more than one order. Should the Contractor be required to make quality documents, inspection protocols, results of material tests or other papers available, the completeness of the delivery and service shall also be subject to the receipt of the said documents by CADCON. The proofs of origin requested by CADCON must be fully filled in at the latest at the time of invoicing and be submitted in signed form. The same shall apply in respect of proof in accordance with value added tax laws in case of deliveries of services within the EU, as well as such in third country territories The agreed price shall be due for payment within 30 calendar days following complete delivery (including any agreed acceptance) and following receipt of a proper invoice. In case of payment within 14 calendar days, the Contractor shall grant a discount of 3% of the net amount of the invoice The statutory provisions shall apply in respect of entering default. In all cases, a warning must be issued by the Contractor. Page 1 of 6 As of: August 2012

2 3.5. Payment shall not mean that the delivery or service has been recognised as being in accordance with the contract. 4. Assignment and right of retention 4.1. The Contractor shall not be permitted to assign its claims in relation to CADCON or have these collected by third parties without the prior written agreement of the latter, which may not be withheld without good reason. The provisions of 354 a of the German Commercial Code (HGB) shall not be affected thereby The restriction of the rights of CADCON to assert a right of retention in relation to the claims of the Contractor or to set off against claims of the Contractor shall be ineffective. In particular, CAD- CON shall be entitled to withhold due payments should CADCON continue to be entitled to claims against the Contractor due to incomplete or defective services. 5. Delivery 5.1. Prior to commencement of the work, the Contractor shall submit a work and time plan, together with the performance dates and deadlines to CADCON Delivery deadlines, dates and agreed times shall be binding. Should the Contractor become aware that it is unable to meet agreed deadlines and dates, it must provide immediate telephone and written notification to CADCON of such, stating the reasons and the expected duration of the delay. Should the Contractor fail to make notification, it shall only be able to refer to the said reasons if these and their hindering effect were obviously known to CADCON The acceptance without reservation of a delayed delivery or service by CADCON shall not substantiate a wavering of damages claims Amendments to deliveries or services shall require the prior written agreement of CADCON Partial deliveries or services shall not be permitted. CADCON shall not be obliged to accept such partial deliveries or services. Should partial deliveries be agreed, the remaining quantity to be delivered must be listed in the delivery note A self supply reservation of the Contractor shall be excluded Within, the delivery shall take place carriage paid to the location specified in the order Dispatch papers shall be attached to the delivery. All written correspondence must contain the order number and part number, as well as the identifications requested by CADCON In case of delivery delay, CADCON shall be entitled to the statutory claims, subject to the clause below Should the Contractor enter default, CADCON shall be entitled to demand a contractual penalty to the amount of 0.2%, however a maximum of 5% of the total contractual sum for each commenced working day of delay. In the event that the appropriate reservation of rights is not made at the time of acceptance of delivery, services or rectification, this penalty may be claimed up until the date of final payment. CADCON shall be entitled to assert a contractual penalty in addition to fulfilment. Claims and rights which go beyond the above shall be reserved In case of default of acceptance on the part of CADCON, the statutory provisions shall apply. The Contractor must also then expressly offer its services to CADCON in cases where a designated or determinable calendar time is agreed for an action or cooperation the part of CADCON (for example the supply of materials). Should CADCON enter acceptance default, the Contractor shall be entitled to require reimbursement of its additional expenses in accordance with the statutory provisions. If the contract concerns non-fungible goods that are to be produced by the Contractor (individual manufacture), the Contractor shall only be entitled to further reaching rights if CADCON has undertaken to provide assistance and is responsible for the failure to provide the said assistance The Contractor shall correctly package and dispatch the delivery in a manner which is customary for the trade. The obligation to return the packaging shall require a separate agreement. Should the packaging be included in accordance with the contract and should it be charged separately, it shall be invoiced at the current cost price. Any damage or loss which was caused or is caused due to improper packaging which is not in accordance with the regulations shall be borne by the Contractor The respectively applicable statutory regulations concerning the dispatch of hazardous goods must be complied with The Contractor shall be obliged to hand over the technical documentation and inspection protocols in written and electronic form. The technical documentation shall correspond to the EU Machine Directive and the recognised rules of technology. The operating instructions shall be produced in accordance with DIN ISO The Contractor shall be obliged to hand over the respective safety data sheets which apply to the delivery at the time of delivery. Should these be amended following the delivery, CADCON must be Page 2 of 6 As of: August 2012

3 immediately informed of such. The Contractor shall release CADCON from damage which is caused by lack of submission of the safety data sheets or late presentation of such. 6. Reservation of ownership Reservations of ownership of the Contractor shall only apply to the extent that they refer to the payment obligation of CADCON for the respective products in respect of which the Contractor retains ownership. In particular, increased or extended retentions of title shall not be permitted. 7. Warranty 7.1. The Contractor hereby guarantees that all deliveries and services correspond to the recognised rules of technology, the applicable legal provisions, the regulations and directives of the authorities, professional co-operatives and specialist associations, the regulations concerning environmental protection and accident prevention, other regulations concerning safety in the workplace, as well as the safety rules and regulations. Should deviations from the above regulations be necessary in individual cases, the Contractor must obtain the prior written agreement of CADCON in this respect. The Contractor hereby guarantees that the goods to be delivered corresponds to the requirements set out in the drawings, inspection plans and the specification sheet and demonstrate the agreed quality. Deliveries and services of the Contractor must correspond to the statutory provisions, in particular the safety and environmental protection regulations, including the Hazardous Goods Ordinance, the EU Reach Ordinance, the German Electrical Equipment Act (ElektroG) and the safety recommendations of the competent German specialist committees or specialist associations, for example VDE, VDI, DIN. The Contractor shall comply with and take the guidelines and measures which are prescribed under the legal regulations above. Relevant certifications, inspection certificates and proof shall be delivered free-of-charge CADCON shall be fully entitled to the statutory defect claims; in all cases, CADCON shall be entitled to demand from the Contractor, according to its choice, correction of the defect or delivery of a defect-free object. The right to bring a claim for damages, in particular the entitlement to damages in lieu of performance, shall be expressly reserved Contrary to the provisions of 442 Paragraph 1 Sentence 2 of the German Civil Code (BGB), CADCON shall be entitled to unrestricted defect claims, also in cases where the defect remains unknown to CADCON at the time of conclusion of the contract due to gross negligence CADCON shall provide immediate notification of defects to the Contractor, to the extent that these are discovered in the course of proper business processes. The complaint shall be deemed to be timely if it is received by the Contractor within 10 working days of discovery of the defect. The complaint obligation incumbent on CADCON in respect of hidden defects shall not be affected Costs which were incurred by the Contractor for the purpose of checking the improvement shall be borne by the Contractor, even if no defect was actually present. An obligation to pay damages on the part of CADCON shall not be affected, should it have recognised or gross negligently fail to have recognised that no defect was present The claims of the Contracting Parties shall lapse in accordance with the statutory provisions, unless otherwise agreed below. In deviation from 438 Paragraph 1 Number 3 of the German Civil Code (BGB), the general statute of limitation for defect claims shall be three (3) years from the time of transfer of risk. Should an acceptance be owed, the statute of limitation shall commence on acceptance. The acceptance shall be documented in an acceptance protocol to be signed by the Contractor and CADCON and, if required, by the Customer. The three-year statute of limitation shall also apply accordingly to claims due to defects of title, whereby the statutory period of limitation for third party in rem claims to return ( 438 Paragraph 1 Number 1 of the German Civil Code - BGB) shall remain unaffected. Beyond that, claims arising out of defects in title shall on no account be time-barred, so long as the third party can still assert the right against us, in particular due to lack of a period of limitation The periods of limitation of the laws concerning the sale of goods, including the extension above, shall apply to all contractual defect claims to the extent provided by law. Should CADCON be entitled to damages claims outside of the contract, the regular statute of limitation ( 195, 199 of the German Civil Code - BGB) shall apply, unless the application of the periods of limitation of the law concerning the sale of goods leads to a longer statute of limitation In deviation from Number 7.2 to 7.7, the rights of CADCON in case of breach of obligations under the service contract shall be in accordance with the statutory regulations. 8. Non-disclosure, supply 8.1. CADCON shall retain ownership and copyright in respect of drawings, plans, calculations, performance instructions, product descriptions and all other documents which represent technical and commercial knowledge of CADCON (hereinafter referred to as "know-how"). Such documents shall only be used for the contractual service and shall be Page 3 of 6 As of: August 2012

4 returned to CADCON following performance of the contract. These may only be duplicated with the express agreement of CADCON. The know-how shall be kept confidential in relation to third parties, also following termination of the contract. The nondisclosure obligation shall only lapse if the know-how has become publicly known or if it was already known to the Contractor at the time of conclusion of the contract, without being caused by a breach of contract The above mentioned provision shall apply accordingly to substances and materials (for example software, completed and half completed products), as well as to tools, templates, samples and other objects which CADCON makes available to the Contractor for manufacture. Unless they are processed, such objects shall be stored separately at the expense of the Contractor and shall be insured against destruction and loss to the customary extent We shall also retain ownership in respect of tools provided by us; the Contractor shall also be obliged to only use the tools for the manufacture of the goods ordered by us. The Contractor shall be obliged to insure the tools which belong to CADCON against fire, water damage and theft at its own expense to the replacement value. At the same time, the Contractor hereby assigns all compensationclaims under the insurance to CADCON; CADCON hereby accepts the said assignment. The Contractor shall be obliged to carry out all necessary upkeep and inspection work in respect of the tools which belong to CADCON, as well as all maintenance and repair work at its own expense. The Contractor shall immediately inform CADCON of any breakdowns; should it culpably fail to do so, damages claims shall remain unaffected Processing, mixing or connection (further processing) of provided objects by the Contractor shall be carried out for CADCON. Should the objects be processed, mixed or connected with items of third parties who possess ownership rights, CADCON shall acquire co-ownership in the new object to the relationship of the value of the item provided by CADCON to the other items. 9. Quality - safety - environment 9.1. The Contractor shall independently check technical guidelines, such as drawings, calculations and other specifications for defects and inconsistencies within the framework of its specialist knowledge. Such defects and inconsistencies must be immediately notified to CADCON. The Contractor shall only be able to invoke the absence of documents to be delivered by CADCON if it has issued a written warning in respect of the said documents and these have not been received within a reasonable deadline The Contractor shall be obliged to use environmentally friendly products and procedures in respect of its deliveries and services and also in case of deliveries and ancillary services of third parties, to the extent that is economically and technically possible. The Contractor shall be liable in respect of the environmental friendliness of the delivered products and packaging materials and for all damage which is caused due to breach of its statutory disposal obligation Furthermore, the Contractor shall be obliged to inform CADCON of special treatment and disposal requirements which are not generally known and to send a manufacturer's declaration or a conformity declaration in accordance with the applicable directives of the European Union or other statutory regulations for each delivered item The Contractor hereby agrees to the assessment of its quality assurance system in quality audits to be carried out by CADCON or its representative. The Contractor shall set up and maintain a documented quality assurance system which is suitable and effective in terms of type and scope. On request, notes concerning the quality inspections must be made available to CADCON. 10. Product liability, insurance To this extent, the Contractor shall release CADCON from third party damages claims which are brought against the latter due to a product defect for which the Contractor is responsible. This shall also include the costs of recall measures which are carried out by CADCON The Contractor shall conclude and maintain during the contractual term a business liability insurance policy, a product liability insurance policy and an environmental pollution policy with reasonable sums insured per incidence of loss for personal injury, damage to property and pecuniary losses. The insurance policy, including the applicable terms and conditions of insurance, as well as proof concerning payment of the premium and the maintenance of the insurance for the duration of the contractual term, must be submitted to CADCON on request. The liability of the Contractor shall not be limited to the sums insured in terms of reason and amount. 11. Data protection The Contracting Parties shall only save and use personal data in compliance with the statutory regulations. 12. Force majeure In cases of force majeure, labour disputes, civil unrest, official measures and other unforeseeable events which are of a serious nature and cannot be avoided (hereinafter referred to as "force majeure"), Page 4 of 6 As of: August 2012

5 the Contracting Parties shall be released from the obligation to provide performance for the duration of the disruption and the extent of its effects for a maximum duration of 4 months. This shall also apply if the events occur at a time in which the contracting partner concerned is already in default. The Contracting Partners shall be obliged to immediately provide the necessary information within the framework of what is reasonable and to adjust their obligations to the changed circumstances in good faith Following the expiry of the period of time named in Number 12.1, CADCON shall be entitled to rescind the contract in full or in part, should the delivery or service no longer be usable by CADCON due to the delay caused by force majeure, taking into account the economic circumstances. 13. Software Software shall be transferred to CADCON on data carriers which are customary for the trade in machine readable code, alongside the user documentation Software which is developed for CADCON shall be transferred in the source code with manufacturer's documentation. Copies of the source code and manufacturer documentation shall be handed over to CADCON on acceptance and shall correspond to the program status of the completion of the test phase Measures which are carried out to the software within the framework of the liability for material defects shall be immediately incorporated in the source code and manufacturer documentation by the Contractor; a copy of the respective current status must be immediately made available to CADCON. 14. Property rights The Contractor hereby guarantees that no third party rights are being infringed within the Federal Republic of in connection with its delivery CADCON shall acquire, in an irrevocable manner, an exclusive right of use encompassing all types of use, which is unrestricted concerning time and place in respect of software that is developed for it or parts thereof, including the right of editing, duplication, amendment, extension and the granting of simple rights of use to third parties, unless a restriction is present in the paragraphs below Should third party rights in respect of external programs which are incorporated in the services or other external performance results prevent the acquisition of a right of use in accordance with the paragraph above, the scope of the rights of use of CADCON shall be agreed in accordance with the contract. The Contractor shall remain authorised to continue to use related standard programs, program modules, work tools and the know how introduced by it when developing the results of the service, also for third party orders. A duplication, processing or other use of the service results and solutions developed for CADCON shall not be permitted on the part of the Contractor, in full or in part The Contractor shall only be permitted to publish the service results of any kind developed for CADCON with the written agreement of the latter, also in case of partial publication. The Contractor shall be obliged to immediately inform CADCON of risks of infringement of which it becomes aware and any supposed risks of breach and shall provide CADCON with the opportunity of counteracting any claims by mutual agreement. 15. Documentation - replacement parts For a period of at least ten years following the conclusion of its service or delivery in accordance with the contract, the Contractor shall ensure that all important documents (for example installation drawings, specifications, inspection reports, calculations) can be made available following a request by CADCON The Contractor shall be obliged to deliver replacement parts to CADCON on reasonable terms for the period of the customary technical duration of use, however for at least ten years following the last delivery. 16. Closing provisions Should the Contractor suspend its payments, should an interim insolvency administrator be appointed or should insolvency proceedings be opened against the assets of the Contractor, CADCON shall be entitled to rescind the contract in full or in part or terminate the agreement. In such a case, CADCON shall be entitled to claim the equipment available for continuation of the work or the deliveries or services of the Contractor which have been carried out so far in consideration of reasonable remuneration The place of business of CADCON, Gersthofen,, shall be the place of performance for all deliveries and services under the business relationship, unless otherwise agreed The place of jurisdiction for all disputes in connection with this contract shall be Gersthofen,. CADCON shall be entitled to also bring a lawsuit at all competent places of jurisdiction for the Contractor. Should the Contractor not be headquartered in a Member State of the European Union, the following arbitration agreement shall apply in place of the above agreement concerning the place of jurisdiction: All legal disputes under or in connection with this engagement shall be finally settled in accordance with the Arbitration Ordinance of the International Chamber of Trade and Commerce by three arbitrators to be appointed in accordance with this Page 5 of 6 As of: August 2012

6 arbitration agreement. The arbitration proceedings shall take place in Augsburg, in the German language The law of the Federal Republic of shall exclusively apply to all legal relationships between CADCON and the Contractor, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) Should any individual clauses of this contract be or become ineffective, the effectiveness of the remaining provisions shall not be affected thereby. The contracting partners shall be obliged to replace the ineffective provision by a clause which comes as close as possible to it in economic terms In case of deviations due to translations of these terms and conditions or parts thereof, the German version shall be solely binding in legal terms. CADCON Holding GmbH Place of business Gersthofen Phone: +49 (0) Fax: +49 (0) info@cadcon.de Page 6 of 6 As of: August 2012