GENERAL TERMS OF PURCHASE 1. Decisive conditions 1.1. The following General Terms of Purchase of the Nagels Group ( Nagels ) will apply exclusively. We recognise the General Terms of Business or other deviating conditions of Supplier only if we have expressly acknowledged them in writing. 1.2. Our Terms of Purchase also apply if we accept Supplier s delivery although aware of conditions of said Supplier which contradict or deviate from our General Terms of Business. We hereby expressly reject any reference or information from Supplier regarding the validity of their General Terms of Business. 1.3. As soon as these General Terms of Purchase are used as a basis for a legal transaction concluded with Supplier, they will apply under exclusion of any deviating conditions of Supplier, including for all future deliveries and services this Supplier performs for Nagels, provided Nagels does not base these deliveries and services upon any other General Terms of Business, and provided no other such conditions are expressly agreed between the Contracting Parties. 1.4. The regulations and provisions of the General Terms of Purchase will also apply mutatis mutandis for orders placed by other companies in the Nagels Group, provided the company has made express reference to the General Terms of Purchase by the time the order is placed at the latest. 1.5. All current and future entrepreneurial companies are entitled to incorporate these Terms of Purchase, which are binding for Supplier. It is not necessary for a company to transfer the Terms of Purchase to their Suppliers in order to incorporate them into an order. The Terms are deemed known to Supplier. If the Terms of Purchase are included in orders made by individual companies, only the company and Supplier in question shall be entitled and obliged under said Terms. One company shall not be obliged if other companies include these Terms, nor shall one company be liable in any way for orders made by the other companies. Neither shall any companies which have incorporated these General Terms of Purchase toward their Supplier be liable for other companies obligations which have arisen from their inclusion of the Terms. If the company in question establishes provisions in their order which contradict these Terms, these individual provisions of the respective company will take precedence over the provisions of the included Terms of Purchase in this individual case. Otherwise, the provisions of these General Terms of Purchase remain in full effect if they are included. 2. Orders 2.1. If they are to be valid, orders must be in writing. But they do not need Nagels signature. The requirement for written form is fulfilled if transmission takes place using telefax, e-mail or another electronic EDI system. 2.2. Even after Supplier has confirmed the order, Nagels can demand that Supplier make reasonable alterations to the delivery object s construction and execution. In this case, the Contracting Parties should consider the delivery date for these alterations, as well as the repercussions they would entail, especially regarding increases or reductions in cost. 2.3. Supplier is not entitled to transfer their rights or obligations to third parties without express written permission from Nagels. Nagels express written permission is also required if Supplier procures most or all of the ordered deliveries and services from third parties. Any breach of the above provisions entitles Nagels to withdraw from the contract without the Supplier being able to derive any claims whatsoever therefrom. 3. Prices, invoice, payment 3.1. The price shown in the order is binding. In the absence of an agreement to the contrary, the price will include delivery free domicile, including packaging. 3.2. Two copies of the invoice must be sent by separate mail to the postal address of the ordering plant immediately upon delivery. They must contain the date, order number and supplier number. If these requirements are not fulfilled, the invoice is not deemed issued. 3.3. After the goods have arrived in accordance with the contract and a proper invoice has been received, net payment must be made within 90 days at the latest. If it is made on the 25th of the following month, a 3% discount will be granted. 3.4. Supplier must have Nagels written permission before assigning any claims due to them under the supply relationship with Nagels, or having such claims collected by a third party. 3.5. Neither acceptance of the delivered goods nor payment for the goods made by Nagels constitutes acknowledgement of any legal obligation, but are subject to invoice verification and the assertion of warranty rights, damage compensation, or both.
4. Delivery dates, delay in delivery 4.1. The agreed delivery dates are binding. The delivery deadline is considered met if the goods arrive at the receiving or usage site named by Nagels. 4.2. Nagels is not obliged to accept premature deliveries or partial deliveries which were not agreed. 4.3. Supplier shall inform Nagels in writing immediately if circumstances arise or become known to them which would prevent them from complying with the agreed delivery dates. In the event of delay in delivery, Supplier shall deliver the products in the quickest possible manner at their expense, provided Nagels insists on contract fulfilment. 4.4. Nagels reserves the right to charge Supplier for all damages suffered by Nagels or their end client, including loss of potential profit. 5. Force majeure 5.1. Events of force majeure which cannot be averted even if using reasonable diligence release the Contracting Parties from their obligation to perform contractual services for the duration of the disturbance and to the extent of its effect. 5.2. In such a case, the Contracting Parties shall inform each other immediately and adapt their obligations to the changed circumstances in good faith. 5.3. If the prevention lasts more than 2 months, each Contracting Party is entitled to withdraw from the contract with regard to its unfulfilled part. 6. Shipping, transfer of risk 6.1. Unless otherwise agreed, delivery must be made free domicile to the receiving or usage site Nagels has named. 6.2. Supplier shall include a delivery note with each delivery. The delivery notes must include Nagels order number, the supplier number, the line item number of the order, and the Nagels article number. If these requirements are not met, Nagels shall not be responsible for any resulting processing delays. 7. Quality and documentation 7.1. Supplier shall comply with the recognised rules of technology, safety regulations and the agreed technical data. Supplier shall adhere to any drawings, samples or other specifications received from Nagels as far as the execution and quality features of the delivery object are concerned. The delivery object cannot be changed without first procuring Nagels express written consent. If Supplier delivers production material to Nagels, the following provisions will apply in supplement, unless anything to the contrary has been requested in writing by Nagels or agreed with Supplier. 7.2. In order to ensure the quality of the products to be delivered to Nagels, Supplier shall be responsible for introducing, using and maintaining an effective Quality Management System (QM System) in accordance with DIN EN ISO 9000 ff., with the additional requirements of the VDA (Association of the German Automotive Industry) publication series / QS 9000 as amended. Supplier is entitled to introduce an alternative system as long as it meets all quality management requirements of the aforementioned QM System. 7.3. If the type and scope of the tests, including testing equipment and methods, have not been firmly agreed between Supplier and Nagels, Nagels is prepared, at Supplier request and within the limits of Nagels s knowledge, experience and possibilities, to discuss the tests with Supplier in order to determine the desired standard of testing technology. 7.4. Concerning the parts especially marked in the technical documentation or designated by separate agreement, Supplier shall also keep special records as to when, how, and by whom the delivery objects were tested regarding the characteristics required to be recorded, and which results were achieved by these obligatory quality tests. The testing documents must be kept for 15 years and submitted to Nagels on request. Supplier shall obligate any sub-suppliers to the same extent as permitted by law. The newest version of the VDA Publication Volume 1, Verification Management, can be used as a guide. 7.5. If authorities demand that Nagels clients be granted insight into Nagels production process and testing documents in order to make a follow-up inspection of certain requirements, Supplier agrees to grant these clients the same rights in Supplier s premises, and to offer any reasonable support to this end. Supplier shall obligate any sub-suppliers to the same extent as permitted by law.
8. Hazardous substances and preparations 8.1. Supplier shall comply with legal requirements regarding goods, materials and procedures which must be given special treatment (regarding transport, packaging, labelling, storage, handling, manufacturing and disposal, for example) pursuant to laws, ordinances, other provisions, or because of their composition and their effect on the environment. 8.2. In this case, Supplier shall surrender to Nagels any and all necessary papers and documents before the order has been confirmed. In particular, no hazardous materials or water-polluting substances can be delivered until an EC Safety Data Sheet (SDS) has been presented and Nagels has given their release. If the requirements as per Letter a) change during the course of the supply relationship, Supplier shall send Nagels without delay any papers and documents which reflect these changed requirements. 8.3. Nagels is entitled to return to Supplier at no charge any hazardous materials or water-polluting substances provided for experimental purposes. 8.4. Supplier shall be liable to Nagels for all damages arising from failure to comply with existing legal requirements in this respect. 9. Packaging 9.1. The requirements of the Packaging Ordinance must be observed. 9.2. Supplier shall take back used and emptied packaging at no charge. If this is not possible, Supplier shall bear the costs for disposal. 10. Warranty 10.1. In the event of defective delivery, the statutory provisions will apply unless anything to the contrary is stipulated in the following provisions. 10.2. When Nagels receives goods delivered by Supplier, they inspect them only to make sure they are identical to the type of merchandise ordered, to determine their quantity, and to check for external transport damage which can be immediately recognised. Nagels shall inform Supplier of any identified defects within 14 days from the delivery date. Nagels shall inform Supplier of other defects, which are only detectible when Nagels processes the goods or uses them for their intended purpose, within 14 days after such defects are first determined. In this respect, Supplier waives the defence of belated notification of defects in accordance with the provisions of German commercial law. 10.3. In the event of defective delivery, Nagels is entitled at their discretion to subsequent delivery at no charge or to have the defects remedied, in addition to legal warranty rights. In both cases, Supplier shall bear all costs incurred thereby. In the event of subsequent delivery, Supplier shall take back the defective parts at their expense. 10.4. If Supplier comes into arrears with the subsequent delivery or defect rectification, Nagels is entitled to purchase replacements for the defective parts from third parties or have the defects remedied by third parties, after setting a grace period and without threat of refusal. In both cases, Supplier shall bear all costs incurred thereby. In urgent cases, Nagels is entitled to these rights after prior consultation with Supplier, even if the latter is not in arrears. 10.5. Supplier shall reimburse Nagels for any additional costs incurred from the delivery of defective parts, such as issuance of product warnings, follow-up inspections of warehouse stock, product recall, costs for installation and dismantling, return costs and additional transport costs. 10.6. The warranty period amounts to 24 months from the date on which the goods arrive at the receiving or usage site specified by Nagels, unless anything to the contrary is stipulated in the following. 11. Product liability, manufacturer liability 11.1. If claims are asserted against Nagels because of manufacturer liability or breach of official safety regulations pursuant to domestic or foreign law, and these claims are based on the defectiveness of a product they manufactured or otherwise brought on the market, Supplier shall release Nagels at first request from all claims, or pay damage compensation, if the product s defectiveness is attributable to the defectiveness of goods delivered by Supplier. This also includes costs which Nagels incurs by procuring the assistance of a lawyer, or which otherwise relate to the defence of product liability claims. If Nagels is subject to special rules governing the burden of proof in their relationship to the damaged party, these rules will also apply to Nagels relationship with Supplier. 11.2. In cases of product liability pursuant to Letter a), Supplier shall to a reasonable extent give Nagels all the information and support they need to defend these claims.
11.3. If Nagels has to implement product recall because of defective goods Supplier has delivered, or if these goods make another such recall operation necessary because of risks to human life and health, Supplier shall assume the costs incurred thereby. 11.4. However, if Nagels is partly to blame for the defectiveness of the product or the need for product recall, 254 BGB (German Civil Code) will apply in regard to Supplier s obligation to pay compensation. 11.5. Supplier shall take out adequate product liability insurance to cover the risks of product liability, including the risk of recall. They shall provide Nagels with proof of such insurance upon request. 12. Protective rights 12.1. Supplier guarantees that all deliveries are unencumbered by third-party copyrights or other protective rights, and that no such rights will by violated when deliveries or made or when Nagels or Nagels clients use the delivery objects in accordance with the contract. This also applies to protective rights published abroad. Supplier shall release Nagels and Nagels clients from any third-party claims due to any violations of protective rights, and shall bear all costs incurred for Nagels in this respect. Moreover, in the event of violations of protective rights Nagels is also entitled at their discretion and Supplier s expense to obtain permission to use the objects from the parties whose protective rights have been violated. 12.2. This does not apply if the delivery object was manufactured in accordance with drawings, models or other detailed information provided by Nagels and Supplier was neither aware nor must have been aware that thirdparty copyrights or other protective rights were being violated thereby. 12.3. The Contracting Parties shall inform each other immediately regarding any risks of violation and alleged incidents of violation of which they become aware, and shall mutually counteract such claims of breach to a reasonable extent. 13. Retention of title, means of production 13.1. We do not grant Supplier retention of title to any extent especially a prolonged retention of title. 13.2. The production materials Nagels provides to Supplier (especially parts, raw materials, tools, etc.) as well as any surrendered documents, samples, models, data, etc., remain the property of Nagels. Supplier shall furnish the production materials Nagels has provided with an identification that they are Nagels property, and insure them at their original value against fire, water and theft at Supplier s expense. Supplier shall provide Nagels with evidence of such insurance upon request. Supplier shall implement and pay for any necessary maintenance work at the typical time intervals. They shall report any damage or malfunctions to Nagels immediately. 13.3. Any processing, reconstruction or installation of the production materials Nagels has provided to Supplier will be done for Nagels. If such processing, reconstruction or installation leads to an inseparable mixture of items of Nagels with items of Supplier or a third party, Nagels will acquire co-ownership of the newly created item in proportion to the value of Nagels original item to the new item. If the processing, reconstruction or installation takes place in such a manner that our items are seen as a basic part of a main product of Supplier, it is agreed that Supplier shall grant Nagels co-ownership of the main product at the ratio of our products in relation to the new product. In both cases, Supplier shall keep Nagels co-ownership share for Nagels. 13.4. Supplier shall use the production materials, documents, samples, models, data, etc., which Nagels has provided to them, exclusively for the purpose of producing the goods ordered by Nagels. They must be handed over to Nagels at any time upon request, immediately and free of charge. If Supplier is entitled to co-ownership of the production materials, the handover will take place pari passu with remuneration of Supplier s co-ownership share. Otherwise, Supplier can assert a right of retention only if the underlying claim of Nagels has been acknowledged in writing or upheld by a court of law. 14. Confidentiality 14.1. The Contracting Parties shall treat all orders, and all associated commercial and technical details, as business secrets. In particular, all illustrations, drawings, calculations, quality guidelines, samples and similar objects received must be kept strictly confidential. Duplicating and transmitting secret information is permitted only
when necessitated by operational requirements. They may be disclosed to third parties only after express written consent has been obtained. 14.2. Supplier shall obligate sub-suppliers to confidentiality to the same extent. Any information of which Nagels makes Supplier aware may be used by Supplier only for its intended purpose. 14.3. This obligation to maintain secrecy will remain in full effect after the supply relationship has ended. After the supply relationship ends, Supplier shall hand over to Nagels all business secrets they have received, if these are in physical form or have been saved on electronic storage media. All business secrets must be deleted from Supplier s data processing equipment. Any duplicates must be destroyed in such a manner that no reconstruction is possible. 15. Place of fulfilment, applicable law, place of jurisdiction 15.1. The place of fulfilment for the Supplier s delivery obligations is the receiving or usage site named by Nagels. The place of fulfilment for Nagels payment obligations is Nagels respective registered office. 15.2. The law of the Federal Republic of Germany shall apply exclusively. The United Nations Convention on Contracts for the International Sale of Goods (CISG; the Vienna Convention) will not apply. The place of jurisdiction for all disputes arising from the business relationship between the Contracting Parties is Kempen. Nagels is furthermore entitled at their discretion to sue Supplier at Supplier s general venue. 16. Final provisions 16.1. If one Contracting Party discontinues their payments, or if a petition has been filed to initiate insolvency proceedings regarding their assets, the other Party is entitled to withdraw from the unfulfilled part of the contract. 16.2. If one of the aforementioned regulations is found to be invalid or unenforceable, either now or in the future, the remaining regulations shall continue in full effect. Instead of the invalid or unenforceable provision, a provision will be deemed agreed which comes as close as the law allows to what the Contracting Parties would have wanted in accordance with original meaning and purpose of the invalid or unenforceable provision. The same applies to any gaps in the contract.