General Terms and Conditions for Purchasing Goods and/or Performances 1 Area of application (1) All deliveries, services and offers by our suppliers are exclusively based on these General Terms and Conditions. They are a component of all contracts concluded between us and our suppliers on the deliveries or services offered by them. They also apply for all future deliveries, services or offers to the client, even if not agreed again separately. (2) The terms and conditions of business of our suppliers or third parties do not apply even if we do not revoke the applicability thereof in individual cases. Even if we refer to correspondence including the supplier's or third party's terms and conditions of business or referring thereto, this does not comply with agreement with the applicability of such terms of business. 2 Orders and jobs (1) Where our offers do not expressly include a commitment period, we will uphold such offers for one week after the date of the offer. Timely acceptance is based on our receipt of the declaration of acceptance. (2) Orders, agreements and modifications are only binding if notice is provided by or confirmed by the ordering party in writing. Written form is also maintained when the declarations are submitted by fax or e-mail. Additional oral agreements shall require our written confirmation. (3) We are entitled to change the time and place of delivery as well as type of packaging at any time by means of written notification and providing notice of at least 2 calendar days in advance of the agreed delivery date. The same applies for changes to product specifications where they can be implemented within the framework of the supplier's normal production process without any considerable additional expense, whereby in such cases, the notification period corresponds with at least 5 calendar days in accordance with the sentence above. We will remunerate the supplier for any additional, verifiable and appropriate costs incurred by such changes. If changes give rise to lower costs, these shall be reimbursed to us. If such changes result in delayed deliveries which cannot be avoided with reasonable effort in the supplier's normal production and business processes, the original delivery date agreed will be postponed accordingly. The supplier will notify us in writing of the additional costs or delivery delays to be anticipated after careful estimate at least within 2 work days of receipt of our notification in accordance with sentence 1. (4) We are entitled to terminate the contract at any time by written declaration indicating the reason if we can no longer use the products ordered in our business owing to circumstances arising after conclusion of the contract. In such cases, we will remunerate the supplier for any partial services performed. Page 1 of 6
3 Prices, payment conditions, invoice details (1) The price quoted in the order is binding. (2) In the absence of an alternative written agreement, the price includes delivery and transport to the delivery address indicated in the contract, and packaging. (3) Where the price of packaging is not included in accordance with the agreement reached and remuneration for the packaging not only made available on loan is not expressly determined, it shall be billed at cost price with proof to be provided. At our request, packaging will be taken back at the supplier's expense. (4) Unless other agreed, we will pay the purchase price after delivery of the goods and receipt of the invoice within 14 days with a 3% cash discount or net within 30 days. (5) Our order number, item number(s), delivery volume, delivery date and delivery address must be indicated on all order confirmations, delivery notes and invoices. If one or more of these details is missing thereby delaying processing by us within the framework of normal business transactions, the payment deadlines indicated in (4) above will be extended by the period of delay. (6) In the event of a default in payment, we will owe interest on arrears to the sum of five percentage points above the basic interest rate in accordance with 247 of the German Civil Code (BGB). 4 Delivery period and delivery, Transfer of risk (1) The delivery period (delivery date or deadline) indicated in the order is binding. Premature deliveries are not permissible. (2) The supplier is obliged to inform us in writing without delay if circumstances arise or become apparent on the basis of which the delivery period cannot be adhered to. (3) If the last possible day on which the delivery is to be made can be determined on the basis of the contract, the supplier will be in default once this day expires and without requiring a reminder to be sent by us. (4) In the event of a delay in delivery, we will be entitled to assert all legal claims, including the right of withdrawal and the right to claim for compensation instead of performance following unsuccessful expiry of a reasonable extension period. (5) Following prior written warning, we are entitled to demand a contract penalty of 0.5% and Page 2 of 6
maximum 5% of the respective order value from the supplier in the event of delivery delays for each week or part thereof of delayed delivery. We are entitled to demand a contract penalty along with fulfillment and as a minimum sum of the compensation owed by the vendor in accordance with statutory regulations; this shall not affect our right to assert additional claims. If we accept the delayed performance, we will be obliged to assert the contract penalty at the latest on payment of the final installment. (6) The supplier is not entitled to make partial deliveries. (7) Even if shipping is agreed, risk will only be transferred to us once the goods are transferred to us at an agreed destination. 5 Quality assurance (1) The supplier is responsible for the quality of products and/or services manufactured and/or supplied. (2) On request, the supplier is obliged to present to H+E the certificate of an accredited certification company confirming the successful introduction and application of a quality management system in accordance with the requirements of the ISO 9001:2008. (3) The supplier is obliged to ensure that the products supplied are manufactured at least in accordance with the generally recognized rules of technology. The generally recognized rules of technology include the minimum requirements on products, services and processes specified in norms, standards and sets of rules (ISO, DIN etc.). (4) The supplier is obliged to inform H+E on time and in writing of changes to manufacturing processes, materials or supplier parts for products, relocations of manufacturing sites, changes in processes or facilities for examining parts or other quality assurance measures enabling H+E to examine whether such changes can have an adverse effect. (5) Other details concerning quality assurance are the object of a quality assurance agreement to be concluded separately. 6 Proof-of-origin certificates / Technical documentation (1) Proof-of-origin certificates (e.g. supplier declarations, movement certificates in accordance with the EEC-EFTA determinations of origin) demanded by us will be made available along with all of the requisite details without delay and properly by the contractor. (2) Service operating instructions and lists of spare parts requested by the client must be supplied Page 3 of 6
along with the delivery. (3) Documentation requested shall apply as an essential component of the order. Where the requisite documentation is not made available, the order will not be regarded as delivered in full. 7 Drawings and other documents (1) Prior to commencement of repair shop work, all drawings must be discussed with the client. On completion of the work, the contractor is obliged to send to the client without delay the requisite number and version of drawings, calculations and other technical documents concerning the delivery and complying with the actual order. The contractor is obliged to transfer the ownership of such materials to the client free of charge. This does not affect the intellectual property rights associated with such items. The client or third parties may use them free of charge for implementing repairs and changes as well as for manufacturing spare parts. (2) Approval by the client regarding drawings, calculations and other technical documents does not affect the sole responsibility borne by the contractor with regard to delivery. Unless revoked in writing by the contractor, this will also apply for proposals and recommendations made by the client as well as for modifications discussed by the contractor and client. (3) All final planning documents, equipment, tools, models etc. made available to the contractor will remain the property of the client and may only be used and made available to third parties for the purpose agreed in the contract. The client retains all of the rights to drawings realized in accordance with information supplied by him and to all processes developed by him. 8 Protection of ownership and copyright (1) We retain the protection of ownership or copyright to orders, jobs, and drawings, illustrations, calculations, descriptions and other documents made available to the supplier. The supplier may not make them available to third parties, disclose them, use or reproduce them either personally or by a third party without our express agreement. On request, he will return these documents and any copies to us in full if he no longer requires them for ordinary business transactions or if negotiations do not lead to conclusion of a contract. (2) Tools, equipment and models made available by us to the supplier or manufactured for contract purposes and billed to us separately by the supplier shall remain our property or ownership is transferred to us. The supplier must clearly mark them as our property, store them safely, protect them against all kinds of damage and only use them for the purpose of the contract. The costs of maintaining and repairing these items will be borne equally by the contract partners in the absence of an alternative agreement. Where these costs are attributable to defects in such items manufactured by the supplier or undesignated use on the part of the supplier, his employees or other associates, they shall however be borne solely by the supplier. The supplier will notify us Page 4 of 6
without delay of any significant or insignificant damage to such items. On request, he shall be obliged to return to us these items in proper condition if they are no longer required by him for fulfillment of the contracts concluded with us. (3) Retentions of title on the part of the supplier will only apply where they refer to our payment obligation for the respective products to which the supplier reserves ownership. In particular, further or extended retentions of title are impermissible. 9 Guarantee claims (1) We are entitled to assert all legal claims in the event of defects. However, the difference is a guarantee period of 36 months. (2) Deviations in quality and quantity shall in any case have been reported in time if we report them to the supplier within 10 working days after we have received the goods. Hidden material defects shall in any case have been reported in time if notification is sent to the supplier within 10 working days after discovery. (3) We do not waive our guarantee claims through acceptance or approval of the samples or test products provided. (4) The receipt of our written defect notification obstructs the limitation of guarantee claims. The guarantee period starts anew for replaced and improved goods from any replacement deliveries and defect corrections unless we must assume from the behavior of the supplier that he does not admit his obligation to these measures and is only undertaking the replacement delivery or defect correction as a gesture of good will or for similar reasons. 10 Particular features in ordering works (1) All performance by the contractor must be accepted formally. Fictive acceptance in accordance with 12 No. 5 VOB/B and acceptance by means of use shall be excluded. (2) The contractor must announce completion of the contract performance in writing in order to apply for acceptance. Acceptance shall be twelve days after receipt of notification by the client. On issuing a request for acceptance, the following documents must be made available to the client: - official approvals if these have not been issued directly to the client; - all test reports and acceptance certificates from official agencies or special agencies specified for such tasks, especially TÜV acceptance certificates for technical equipment requiring such acceptance; - all evidence of certain building material characteristics agreed in the contract; - all operating, maintenance and care instructions, manuals and other documents for technical equipment. Provision of the above documents is a prerequisite for acceptance unless the contractor is obliged to Page 5 of 6
procure them from a third party not specified by him (e.g. authorities) or from the actual client. Where other documents are listed in the contractual basis, they must be supplied at the latest four weeks following acceptance. (3) Plans for design services and similar must be supplied as files in PDF format. (4) Responsibility on the part of the contractor for defects pertaining to works is based on the regulations outlined in the VOB/B. (5) The following guarantee periods shall apply: - For the construction of works: 10 years - For all other services: 5 years (6) The invoice must be submitted in verifiable form to the client within 6 weeks of acceptance accompanied by all documents required for verification. Payment is to be made after expiry of a reasonable inspection deadline, at the latest 2 months after receipt of the invoice. 11 Product liability (1) The supplier is responsible for any claims asserted by third parties for personal or material damage which can be traced back to a defective product supplied by the supplier and is obliged to release us from any ensuing liability. If we are obliged to initiate a callback campaign owing to a defect in a product supplied by the supplier, the supplier will bear all of the costs associated with such a callback campaign. (2) The supplier is obliged to maintain at his own expense a product liability insurance policy with a coverage total of at least 2 m Euro (two million Euro) which is not required to include the callback risk or penal or similar damage unless otherwise agreed. On request, the supplier will send us a copy of the liability insurance policy at any time. Page 6 of 6