General Terms and Conditions of Purchase

for the HANS VON DER HEYDE Group

1. Preamble

1.1.The Purchaser shall order exclusively on the basis of his/her order terms; the Purchaser shall not accept any conflicting terms or conditions deviating from the terms of the order or additional conditions, unless he/she has expressly consented to their application in writing.

The implicit acceptance of deliveries or services of the Seller, as well as payments by the Purchaser, do not imply agreement with any conflicting, deviating or additional conditions of the Supplier.

1.2. Any agreement between the Seller and Hans von der Heyde is legally valid only in writing. Additional conditions or sales clauses introduced by the Seller are deemed to be rejected as long as Hans von der Heyde has not agreed to these additional provisions in writing.

1.3. The present conditions are applied to all future individual contracts between Hans von der Heyde and the Seller – with exclusion of any other General Terms and Conditions -.

1.4. Delivery contracts or delivery notices and other between Hans von der Heyde and the Seller to be concluded legal transactions as well as any additions or amendments to the latter must be in writing. Orders and also the above mentioned legal transactions may be carried out by means of remote data transmission (RDT), to the extent that this method is generally applied by the parties. In all other respects, these General Terms and Conditions of Purchase apply only to contracts between merchants.

2. Contract conclusion

2.1. A purchase contract is only deemed to be concluded when Hans von der Heyde has submitted a declaration of acceptance within the period of validity of an offer after receipt of an offer in writing.

2.2. Specifications, dimensions, weight, quantities, prices, other descriptions and other data contained in catalogues, circulars, advertisements or price lists are only approximate values and are not binding for Hans von der Heyde as long as they have not been expressly included in the contract. The data, which is sent to the Seller prior to conclusion of contract, remains the exclusive property of Hans von der Heyde and may not be made accessible to third parties.

2.3. Hans von der Heyde is entitled, within the bounds of reasonableness, to demand changes/modifications to/of the delivery item with regard to structure and design. The effects thereof, in particular the increase or decrease in costs as well as the delivery dates, are to be agreed between the parties appropriately.
Changes/modifications by the Seller require the prior approval in writing by Hans von der Heyde.

2.4. The Seller is obliged to provide Hans von der Heyde with an order confirmation in writing within 10 working days after the date of the order. If the Seller does not fulfil this obligation, Hans von der Heyde is entitled to revoke the order without stating reasons.

2.5. If insolvency proceedings or any other judicial or extra judicial proceedings are opened on the assets of the Seller, Hans von der Heyde is entitled, without giving reasons, to rescind from the contract with regard to the part of the contract that has not yet been fulfilled.

3. Purchase price

3.1. The price stated in the order is binding and is based on the agreement “Delivered Duty Paid”.

3.2. The agreed purchase price includes “free house” delivery including packaging as well as taking over transport insurance costs and statutory value added tax, which is indicated separately on the invoices.

3.3. Invoices are to be issued by the Seller immediately after shipping the goods, stating the order and item number.

3.4. Price reductions are to be communicated by the Seller in writing and will be credited to Hans von der Heyde. If Hans von der Heyde has already performed its services, it may demand the latter back, whereby the Seller waives its right to object.

4. Terms of payment

4.1. Payment and delivery must be effected in the manner agreed by the parties in the individual case. If no agreement is made in the individual case, payment is to be made within 30 days of delivery and receipt of the invoice with 3% discount or within 60 days net. The due date of early deliveries depends on the actually agreed delivery date.

4.2. All payments effected by Hans von der Heyde are made subject to the goods being delivered properly by the Seller as well as the invoice being correct.

4.3. Should Hans von der Heyde be entitled to warranty claims of any kind whatsoever from the defective delivery, then it has the right to recover payment in full until the order has been properly fulfilled by the Seller. In this case Hans von der Heyde is entitled to set-off.

5. Terms of delivery

5.1. The delivery must be made on the date of delivery laid down in the purchase contract or the order.

5.2. The Seller is obliged to inform Hans von der Heyde immediately in writing, if a delay in delivery is to be expected.

5.3. The shipping regulations of Hans von der Heyde are to be adhered to, in particular, the order number and article number of Hans von der Heyde must be stated in all dispatch papers, correspondence and invoices.

5.4. If the Seller delivers before the agreed delivery date, the latter bears all associated costs, in particular also storage by Hans von der Heyde. Should acceptance of an early delivery be impossible for Hans von der Heyde, then the latter is entitled to refuse acceptance.

5.5. In the event of a delay in delivery, Hans von der Heyde is entitled to demand lump-sum default damages of 1% of the delivery value per completed week, but not more than 5%; further legal claims (rescission and damages, instead of the performance are reserved).

The Seller is entitled to prove that no or negligible damage is incurred as a result of the default.

5.6. In individual contracts, the parties may agree upon a contractual penalty in the event of a delivery delay.

5.7. Agents, vicarious agents and other persons of the Seller who carry out work on the premises of Hans von der Heyde in performance or fulfilment of the contractual object undertake to comply with the applicable provisions of the company regulations of Hans von der Heyde. Liability for accidents which are caused by the aforementioned persons on the premises of Hans von der Heyde is excluded insofar as these accidents were not caused by an intentional or grossly negligent breach of duty by the legal representatives of Hans von der Heyde or their agents and vicarious agents.

6. Transfer of risk

6.1. Unless otherwise stated in the single supply contracts, the transfer of risk is set in accordance with the Incoterms of the International Chamber of Commerce (Incoterms 2000).

6.2. If there is no agreement on the transfer of risks, the clause “delivery duty paid” (delivered, duty paid, Incoterms 2000) applies.

7. Acceptance

7.1. Subject to § 377 HGB (German Commercial Code), Hans von der Heyde has the right to immediately inspect the delivery upon receipt for obvious or visible defects and only to accept the latter thereafter. The Seller shall bear the costs of justifiable complaints and the replacement delivery.

7.2. The values for dimensions, weights and unit numbers determined during the incoming goods inspection are binding for both contracting parties. In the case of significant deviations, Hans von der Heyde shall notify the Seller within 14 days of receipt.

8. Warranties

8.1. The goods must be examined for possible quality and quantity deviations within a reasonable period of time; the complaint is considered to have been submitted on time when it is received by the Seller within a period of 5 working days of the receipt of the goods or in the case of hidden defects as of discovery.

8.2. Hans von der Heyde is entitled to the statutory claims for defects without limitation; in any case, Hans von der Heyde is entitled to demand at its discretion remedial action or delivery of a new item from the Supplier. The right to compensation for damages, in particular, the right to claim damages in lieu of performance, is expressly reserved.

8.3. Hans from Heyde is entitled to remedy the defect itself at the expense of the Supplier if the Supplier is in default with the subsequent performance.

8.4. The period of limitation is 36 months from the transfer of risk, insofar as the mandatory provisions of §§ 478, 479 BGB (German Civil Code) do not apply.

8.5. In the case of the purchase of consumer goods, the provisions of §§ 478, 479 BGB remain unaffected.

9. Product liability / indemnification liability / insurance

9.1. As far as the Supplier is responsible for damage to a product, it shall release Hans von der Heyde from any third-party claims upon first request, insofar as the cause is located within the Supplier’s sphere of control and organisation and for which the Supplier has assumed liability to third parties.

9.2. Within the scope of its own liability for damage claims within the meaning of sub-paragraph 1, the Supplier is also obliged pursuant to §§683, 670 BGB or in accordance with §§830, 840, 426 BGB to reimburse any expenses which arise in connection with any recall actions carried out by Hans von der Heyde. Hans von der Heyde will -as far as this is possible and reasonable- inform the Supplier in advance of the content and extent of such a recall and allow opportunity for comment.

9.3. Hans von der Hyde, in consultation with the Supplier shall in accordance with the provisions of the Product Safety Act provide the competent authority with the necessary information.

9.4. The Supplier undertakes to maintain a product liability insurance with a cover sum of 10 million per person damage / property damage – flat-rate – during the duration of this of the purchase contract i.e. up to the respective expiry of the statute of limitations; should Hans von der Heyde be entitled to further damage claims, these remain unaffected.

10. Further provisions

10.1. This agreement supersedes all prior agreements which the parties may have made either orally or in writing with regard to these business areas; previous agreements become ineffective with the signing of the present General Terms and Conditions of Purchase.
10.2. The rights to this connection may not be assigned by any of the contracting parties without the prior consent in writing.

10.3. Each party shall bear the costs incurred in connection with the implementation of this contract.

10.4. Enquiries, orders, order confirmations, as well as any other correspondence of Hans von Heyde with the Seller must not be used for advertising purposes. This is not the case if Hans von der Heyde previously consented to these advertising measures in writing and the form of the advertisement was clearly presented by the Seller and approved by Hans von der Heyde in writing.

10.5. The place of fulfilment is the place to which in accordance with the order the delivery item is to be delivered.

11. Place of jurisdiction; Choice of law

This agreement is exclusively subject to German law. Any dispute arising out of the business relationship is ultimately to be decided by an arbitration court, composed by one or more arbitrators and acting on the basis of the Arbitration Rules of the International Chamber of Commerce. In lieu of recourse to the arbitration court, Hans von der Heyde is entitled to refer the matter to a materially and locally competent court of law.

12. Severability clauses

Should one of these contractual provisions be or become ineffective, the remaining provisions remain effective. Should one of these contractual provisions be or become invalid, the parties shall replace this regulation by means of renegotiation.