Precoplat GmbH General Terms and Conditions of Sale and Supply for goods and services. Revision

Precoplat GmbH General Terms and Conditions of Sale and Supply for goods and services. Revision 1 28.03.2002 1 GENERAL 1.1 These General Terms and Conditions of Business or General Terms and Conditions of Sale and Supply (or General Terms, for short) shall apply to all business transactions between the Customer or other customers (hereinafter collectively called the Customer ) even if they are not mentioned in later contracts. They shall in particular even apply if the Customer draws attention to his own terms of business when placing his order or in any other way. Contractual provisions with any differing content shall have no application. Nothing different from these General Terms shall apply unless supplier has expressly consented to these differing terms of business. 1.2 The Customer shall be deemed to have accepted these General Terms as soon as he physically takes receipt of our goods and/or services unless the he rejects them within 48 hours of receiving our goods and/or services. It he does reject them he shall return the goods and/or services to supplier immediately. If the goods and/or services have not been returned for any reason whatsoever within 48 hours has stated his refusal to accept the General Terms he shall become liable towards supplier for a contractual penalty corresponding to the value of the goods and/or services he has received. 2 OFFERS 2.1 Unless our offers are accepted without delay, all offers and price information shall be deemed to be free and non-binding unless and until a valid contract has come into existence, except when a period of binding force has been expressly stated. No orders or oral agreements shall have any valid binding effect on supplier unless and to the extent that we confirm them in writing. Cost estimates shall always be without binding effect. 2.2 The documentation relating to an offer such as drawings and illustrations, and data contained in the offer such as measurements, weights, or performance, shall be regarded as only approximate unless expressly described as binding. 3 ORDERS 3.1 Our written confirmation of order shall be exclusively binding as to the scope of the goods and/or services to be supplied. No objections to the contents of the confirmation of order shall be accepted unless we receive them in writing and without delay, and within 7 working days at the latest after the date on which it was issued. Later changes can only be taken into account if expressly agreed in writing. Apart from this, the provisions of sub-clause 1.2 above shall apply in all relevant respects. 3.2 Supplier shall reserve the right to check the customer s credit-worthiness even after the order has been confirmed, through a credit-insurance company if relevant, and to cancel the contract totally if the findings are unfavourable, meaning in particular if the credit insurers refuse to provide cover. 3.3 No oral declarations, meaning in particular any made by our sales agents or travelling salesmen, shall become legally valid unless and until confirmed in writing by supplier. 3.4 If the customer after having awarded a contract then cancels it without justification, supplier can charge Page 1 of 7

25 percent of the purchase price for the costs incurred in processing the order and for forgone profit, and without prejudice to any claim for compensation for any greater loss. The customer shall be entitled to demonstrate that a lesser loss has been incurred. 3.5 The customer shall call off the last of any call-off orders no later than 6 months after the date of the confirmation of order. supplier shall then set a reasonable extension period, and if, once it has expired, the order has not been finally called off with all the necessary detailed information we shall be entitled at our free discretion either to deliver the remaining quantity even without any call-off at the price in force on the day of said delivery, or to claim damages in lieu of the contractual obligation, or to cancel the contract in respect of the remaining quantity. 4 COPYRIGHT If supplier produces to the customer s order, using drawings, models, patterns, or any other technical documentation provided by him, the customer shall be deemed to have guaranteed that no third party s industrial property rights will be violated thereby. Should any third party invoke any existing industrial property rights and forbid supplier from producing and delivering such goods or supplying such services, we shall be entitled, without being under any obligation to examine the legal situation, to cease all further activity to the relevant extent and to demand damages from the customer. By providing any such drawings and/or other documentation the customer holds supplier safe and harmless at its first request from any claims that any third party may raise in this connection. 5 WORKING AIDS 5.1 If data are despatched by remote data transmission or email or on any kind of data carrier, the customer shall bear liability for any data errors caused by a faulty connection. The customer hereby guarantees that no data shall be transmitted or sent on a data carrier unless it has been checked and is free of viruses. Any working aids provided by the customer such as data carriers, finished drawings / artwork, or original litho films shall therefore require no examination or approval from supplier. If any rework is reported to be necessary, the customer shall give his agreement to supplier carrying out and charging for the work. 5.2 Tools, data carriers, litho films and plates, jigs, printing equipment, drilling and machining programmes, etc. shall only be charged on the basis of a share of the costs and shall remain the exclusive property of. They shall be retained and maintained for a period of one year from the date of last use. Supplier shall be free to sell them. We shall retain the reproduction rights over any designs that we produce. 5.3 Proofs, quality samples, or working models shall be submitted for approval if we consider this necessary. No changes, acceptance, or approval shall be valid unless we are given them in writing. Any acceptance or approval of proofs, drawings, or samples given by the customer or any party acting with his authority shall absolve supplier from any liability for defects that they may later contain or cause unless supplier has acted with intent or in gross negligence. 5.4 Supplier shall bear no liability for defects caused by the order itself, by any documentation it has been sent, or by any data contained therein, being incomplete or capable of more than one interpretation. The foregoing shall not apply if supplier has acted with intent or in gross negligence. 6 DATA ON STATE OF FINISH 6.1 Supplier shall not be deemed to have given any data on the finished state of any product unless it has been expressly described in writing as Specific contractual conditions and identified as such. We shall not be held liable for any agreements made by any of our representatives or vicarious agents unless the customer has expressly informed us of them and we have confirmed them. 6.2 It shall be deemed to have been agreed that the state in which the goods are delivered shall be exclusively our product description. Page 2 of 7

6.3 Public announcements, advertising copy, and other forms of advertising, on the other hand, do not represent any contractual data on the state of the product. 7 DELIVERY QUANTITY Supplier shall use its best endeavours to deliver the agreed quantity in conformity with the contract. Partconsignments shall be permissible. However, the customer shall be under an obligation to accept any variation up to 10 percent in the agreed quantity or production batch caused by production factors. Supplier shall not thereby be held in violation of any contractual obligation of any kind. The claim to payment arising from the quantity actually supplied shall be increased or decreased accordingly. If a sequence of consignments is delivered, each call-off shall be made from the ordered quantity as effective delivered quantities. If any quantity is called off in excess of the quantity originally ordered, we shall be entitled to request the creation of a new contract or to charge for the excess quantity at the price in force on the relevant day. 8 DELIVERY PERIODS 8.1 Delivery dates and periods published by supplier shall be regarded as approximate and as non-binding information for the customer unless we have promised the delivery date or period in writing and designated it as fixed. Any such fixed delivery date or period shall be subject to our being supplied punctually and correctly with the necessary materials. Supplier shall not accept any obligation for ensuring punctual transportation. 8.2 Delivery periods shall count from the date on which the order confirmation is despatched but shall not start to run until all details have been clarified on the order and any documentation, licences, approval, material, or other items to be supplied by the customer have been received, nor until any agreed instalment payment has been made or any Letter of Credit has been opened in supplier s favour. 8.3 The delivery date shall be deemed to have been met if the goods to be delivered have left the works by that date or the customer has been informed that they are ready for collection. Our delivery period shall be in abeyance and shall be prolonged by at least the length of time for which the customer is in arrears of fulfilment of his counter-performance and under certain circumstances by a multiple of this length of time if as a result of the delay machinery has been deployed on other orders and it is not possible to bring the interruption caused by the customer to an immediate end. The delivery period shall also be prolonged if unforeseen obstacles arise, meaning in particular any Act of God or force majeure or occurrences outside our control such as interruptions to operations, faulty or shortfall production, strikes, or lockouts, regardless of whether these affect us or our suppliers, if these circumstances can be demonstrated to have a direct and significant impact on the production or delivery of the goods or services we are to supply. No rights or claims shall accrue to the customer as a result of any such circumstances. The circumstances described above shall also be deemed to be outside our control if they arise after a delay has already started to occur. In important instances we will inform the customer as soon as possible about the start and end of any such circumstances 8.4 We shall be permitted to deliver part-consignments within the delivery period that we have stated provided this does not result in any disadvantage to the use of the products. 8.5 Our adherence to delivery dates shall be conditional upon the customer properly and punctually fulfilling his contractual obligations, meaning his payment obligations in particular. 8.6 In the event of any unforeseen events, if they are of commercial significance, seriously changing the substance of the goods and/or services to be supplied, or seriously affect our operations or those of any of our suppliers, and in the event of factors emerging later that make it objectively impossible to execute the contract, we shall be entitled to cancel such parts of the contract as we are unable to fulfil. If we make use of this right we shall inform the customer accordingly and without delay as soon as we become aware of the Page 3 of 7

implications of the relevant event, even if an extension of the delivery date has already been agreed with the customer. No rights or claims for compensation shall accrue to the customer as a result of any cancellation of this kind. 8.7 If goods are ordered on call-off, the entire quantity ordered shall be called off within the agreed delivery period. If not, we shall be entitled to despatch and charge for the remaining quantity, in the form of semi-finished goods and/or special material if necessary. If a special price has been granted to the customer on account of the total contractual quantity, including contracts for successive deliveries, but the entire agreed quantity is not called off or accepted within the agreed call-off period, supplier shall reserve the right to impose a price increase appropriate to the reduced quantity. If an extension period is granted in respect of the residual quantity, the possibility shall exist of agreeing a new price. If the residual quantity is not called off at all, we shall reserve all our rights. 9 PRICE In the absence of any specific agreement to the contrary, all prices shall be defined as ex-works, expremises, or ex-warehouse, or in specific cases exdespatch from some other external point within the Federal Republic of Germany, but shall always exclude packing and other costs. Value Added Tax shall always be added at the statutorily prescribed rate to the prices we state. If goods and/or services are supplied more than four months after the contract comes into existence, supplier shall reserve the right to invoice an appropriate overheads surcharge to cover any increases in wage rates or the prices of materials and/or energy that may have occurred in the interim. This shall apply in particular to contracts for successive deliveries. 10 PAYMENT 10.1 In the absence of any specific agreement to the contrary, payment shall be made net of all charges to our point of payment. 10.2 Agreement payment terms shall count from the date of issue of the relevant invoice. Any promptpayment discount that may have been agreed shall only be applicable on condition that all payment obligations from earlier invoices have been met in full. Invoice amounts of less than 200 shall be due for payment immediately, net-net and without any deductions. 10.3 Supplier shall be under no obligation to supply any further goods or services under any current contract so long as any earlier invoices that are due or overdue for payment have not been settled. 10.4 All payments owed to supplier under the business relationship, meaning the entirety of the customer s exposure to supplier and including, for instance, claims for payment for semi-finished product resulting from transfer of risk at the start of production, for finished product held in trust in our safekeeping on his behalf, and for goods delivered but not yet paid for, shall be declared due for immediate payment regardless of the maturity of any bills-of-exchange or cheques that may have been received if there is any sound reason for us to do so such as arrears of payment, poor credit information, or a downgrading of the customer s credit rating by the credit insurers. The same shall apply if any justifiable doubts arise as to the customer s solvency or creditworthiness or if the customer pledges his receivable accounts or goods covered by our retention of title to a third party or offers the same as collateral. Under these or similar circumstances we shall also be entitled to require payments in advance or collateral in respect of all current transactions. If we still have a backlog or orders to work through for the customer, we shall also be entitled to cancel these orders and/or demand compensation in lieu of performance. 11 TRANSFER OF RISK 11.1 Supplier shall notify the customer when a production batch has been produced in accordance with a confirmed order. All risks attaching to the goods that are to be delivered shall be transferred to the customer when he receives this notification. The Page 4 of 7

customer shall be under an obligation to collect the goods from supplier in accordance with the notification of production. 11.2 We shall be entitled but under no obligation to enter into contracts for transportation on the customer s behalf and to select the mode and route of transport. 12 PACKING Supplier shall reserve the right to decide on the type and amount of packing. Packing costs shall be invoiced separately. If packaging, especially packaging containers, is returned to supplier immediately, carriage paid, and in a faultless condition, we will issue a credit note for two-thirds of its invoiced value. Apart from this we reserve the right to refuse to take packing material back. 13 RETENTION OF TITLE 13.1 All goods shall remain our property until the customer has fulfilled all claims that we have against him under the whole business relationship. The customer shall not pledge the goods while they are under our retention of title nor transfer title over them by way of collateral. In the event of any third party attaching, confiscating, or otherwise disposing over the goods, the customer shall inform supplier without delay and state the complete name and address of the creditor who is seeking attachment. 13.2 Goods under our retention of title shall not be resold except as part of the customer s normal business processes. The claim for payment accruing to the customer against his customer from the purchase price of the goods shall be deemed to have been assigned to us up to the level of our purchase price payment account. The customer shall not be entitled to dispose over the retained goods in any other way. 13.3 The customer shall be entitled until further notice (which can be given at any time) to collect the purchase price payment account. If the goods supplied under retention of title are treated, processed, or mingled or combined with other goods, or if the customer has other rights over these goods, supplier shall become the co-owner in the same proportion as value of the retained goods to the other objects. If any object in the customer s possession that is under retention of title is to be regarded as the principal object, the parties already agree that we shall be the owner of the principle object as well and that its transfer to us is superseded by the provision of this object on loan into the customer s possession. 13.4 In the event of arrears of payment of the whole or any part of an amount owing, the customer s right of ownership shall expire as well as his authorisation to collect the receivable accounts from his customers. If we so request, the customer shall then inform supplier of the names and addresses of his debtors for these assigned accounts, provide all necessary information, and inform the debtors of the assignment. Otherwise supplier shall be entitled to require the immediate surrender of the goods held by the customer under retention of title, although this requirement of surrender shall merely serve to secure the title and shall not be construed as cancellation of the contract. 13.5 The customer shall bear the risk of the accidental destruction of the goods under retention of title and shall be under an obligation to treat the goods that have been delivered with all due care and to insure them adequately for the duration of the retention of title. Any claim on the insurance shall be deemed to have been assigned here and now to supplier and shall remain with supplier until the purchase price and any consequent ancillary costs have been paid in full. 13.6 All rights under the retention of title and all special agreements defined in these General Terms shall apply until obligations have been discharged in full as contingent liabilities that we have accepted in the customer s interests. 13.7 We shall be under an obligation to release all collateral to which we are entitled, if the customer so requests, as soon as its value exceeds that of the accounts receivable that it secures by more than 20 percent. Page 5 of 7

14 GUARANTEE 14.1 Supplier shall provide a guarantee against defects and shall at its discretion rework or replace any defective goods. Should all attempts at rectification fail, the customer shall be entitled to require a reduction in the remuneration or the cancellation of the contract. The customer shall have no right to cancel the contract if only a minor violation of the contract has occurred, e.g. if the defects are minor,. If the customer cancels the contract on the grounds that the goods were defective and the defects have not been rectified, he shall not be entitled to claim damages on the grounds of the defect. 14.2 The customer shall inform supplier in writing of any obvious defects no later than 7 calendar days after receiving the goods, and of any other defects within 7 days of their coming to light, otherwise no guarantee claims shall be entertained. The 7-day period shall be deemed to have been met if the notification is sent off within this time. The customer shall bear the onus of proof that the prerequisites for a guarantee claim have been met, particularly with respect to the defect itself, the point in time when the defect was identified, and the punctual notification of the defect. 14.3 The guarantee period shall be one year counting from the date of delivery of the goods. 14.4 In the event of any violation of the contract due to minor negligence, our liability shall be limited to the average damage foreseeable with goods of this kind and typical of this kind of contract. This shall also apply to any case of minor violation of obligations by any of our representatives or vicarious agents. Apart from this we shall bear no liability for insignificant violations of contractual duties caused by minor negligence. 15 MISCELLANEOUS 15.1 Supplier shall not accept the assignment of any of the customer s receivable accounts. 15.2 The customer shall have no rights of offset unless his counterclaim has been established by a court. The customer shall have no right of retention unless his counterclaim is based on the same contractual relationship. 15.3 Should any provision of these General Terms prove to be invalid, unworkable, or beset by loopholes, it shall be replaced by a provision that come as close as possible to that which the parties desired but is valid, workable, and complete. This shall not affect the validity of the remainder of the contract. 16 PLACE OF EXECUTION AND JURISDICTION 16.1 Deliveries shall be made at choice ex-works Krefeld or free at haulier in Krefeld (Germany). The place of execution for the supply of all goods and services under the contract, including cheques and bills-of-exchange, shall be Düsseldorf. 16.2 The place of jurisdiction for any disputes that may arise directly or indirectly from the contractual relationship shall likewise be Düsseldorf. Supplier shall also be entitled to sue the customer before the with court geographic jurisdiction over his place of business. 17 CHOICE OF LAW 17.1 German law shall apply to all legal relationships resulting for the parties and their successors in law from any contract governed by these General Terms including any subordinate or ancillary transactions, to the exclusion of the application of any legal norms created by German legislation on collisions of law where these refer to any other country s legal system, the Hague Convention on Uniform Purchasing Law, uniform UN Purchasing Law, or any other Conventions governing the law on the purchasing of merchandise. 17.2 The contractual language shall be German. Any written matter composed in any other language shall be deemed to be a translation of the original. If any discrepancies exist between a German text and that in any other language, including these General Terms, the German text shall always take precedence as the original. Page 6 of 7

18 DATA PROTECTION The customer hereby agrees to supplier processing and using his personal data in the context of or in connection with our business relationship to the extent permitted by data-protection legislation. We hereby explicitly declare that we are in agreement with the above General Terms and Conditions of Sale and supply. (Full name and address of company) (Authorised signature(s) of customer) (Place and date) Checked by Supplier s internal auditor: (Name des auditor) (Place and date) Page 7 of 7