General Terms and Conditions of Purchase of BIKAR-METALLE GmbH

General Terms and Conditions of Purchase

BIKAR-METALLE GmbH
Industrial road 3 - 17
57319 Bad Berleburg-Raumland

Status: July 24, 2018

§ 1 Validity

All deliveries, services and offers of our suppliers are exclusively subject to these General Terms and Conditions of Purchase. They shall be an integral part of all contracts concluded by us with our suppliers for the deliveries or services offered by them. They shall also apply to all future deliveries, services or offers to us, even if they are not separately agreed again. Terms and conditions of our suppliers or third parties shall not apply, even if we do not separately object to their validity in individual cases. Even if we refer to a letter that contains or refers to the terms and conditions of business of the supplier or a third party, this shall not constitute an agreement to the validity of those terms and conditions of business.

Deviating, conflicting or supplementary general terms and conditions of the supplier shall only become part of the contract if and to the extent that we have expressly consented to their application in writing. This requirement of consent shall apply in any case, for example even if we have knowledge of the Supplier's General Terms and Conditions and accept its deliveries without reservation.

Insofar as services are owed which do not consist in the delivery of an item, the phrases "delivery", "supplier" etc. shall be used synonymously with "service".

The General Terms and Conditions of Purchase shall only apply if the Supplier is an entrepreneur, a legal entity under public or private law or a special fund under public law.

§ 2 Purchase orders and orders

(1) Insofar as our offers do not expressly contain a binding period, we shall be bound by them one day after the date of the offer. The receipt of the declaration of acceptance by us shall be decisive for timely acceptance. A delayed acceptance or an acceptance deviating from our offer shall be deemed a new offer and shall require acceptance by us.

(2) We shall be entitled to change the time and place of delivery as well as the type of packaging at any time by written notification with a notice period of at least 7 calendar days prior to the agreed delivery date. The same shall apply to changes in product specifications insofar as these can be implemented within the framework of the supplier's normal production process without significant additional effort, whereby in these cases the notification period pursuant to the preceding sentence shall be at least 7 calendar days. We shall reimburse the supplier for any proven and reasonable additional costs incurred as a result of the change. If such changes result in delivery delays which cannot be avoided in the supplier's normal production and business operations with reasonable efforts, the originally agreed delivery date shall be postponed accordingly. The supplier shall notify us in writing of the additional costs or delays in delivery to be expected by him on careful assessment in good time before the delivery date, but at least within 5 working days of receipt of our notification in accordance with sentence 1.

(3) We shall be entitled to terminate the contract at any time by written declaration stating the reason if we are no longer able to use the ordered products in our business operations due to circumstances occurring after conclusion of the contract. In this case, we shall compensate the supplier for the partial performance rendered by him.

(4) The Supplier shall comply with the applicable statutory regulations of the European Union and the Federal Republic of Germany in respect of its deliveries and services. The obligations resulting from the REACH Regulation must be fulfilled by the supplier for all substances, preparations, products and goods delivered and provided to us. The supplier shall immediately inform us in writing of any relevant changes to the delivery items, their deliverability, usability or quality caused by statutory regulations, in particular by the REACH Regulation, and shall coordinate suitable measures with us in individual cases. The same shall apply as soon as and insofar as the supplier recognizes or should have recognized that such changes could occur.

§ 3 Prices, Terms of Payment, Invoice Details

(1) The price stated in the order shall be binding.

(2) In the absence of any written agreement to the contrary, the price shall include delivery and transport to the shipping address specified in the contract, including packaging. If, according to the agreement made, the price does not explicitly include packaging and the remuneration for the packaging - which is not only provided on loan - is not explicitly determined, this shall be charged at the verifiable cost price. Upon our request, the supplier shall take back the packaging at its own expense.

(3) Insofar as the supplier has a claim to return of the packaging, the delivery papers shall be clearly marked. In the absence of such marking, we shall be entitled to dispose of the packaging at the supplier's expense; in this case, the claim to return of the packaging shall expire. The costs of a return shipment shall in any case be borne by the supplier.

(4) The agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the supplier shall grant us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made in due time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.

(5) All order confirmations, delivery documents and invoices shall state our order number, the article number, all product specifications and standards, as well as the delivery quantity and address. If one or more of these details are missing and this delays processing by us in the normal course of business, the payment periods specified in paragraph 4 shall be extended by the period of the delay.

(6) We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. In particular, we shall be entitled to withhold payments due as long as we are still entitled to claims against the supplier arising from incomplete or defective performance. This shall also apply in the event of missing delivery documents (e.g. missing factory certificates).

(7) The Supplier shall have a right of set-off or retention only in respect of counterclaims which have been established by declaratory judgment or are undisputed.

(8) We shall not owe any interest on arrears. In the event of default in payment, we shall owe default interest in the amount of five percentage points above the base interest rate pursuant to § 247 BGB.

§ 4 Delivery period and delivery, transfer of risk

(1) The delivery time (delivery date or period) specified by us in the order or otherwise applicable according to these General Terms and Conditions of Purchase shall be binding. Partial and premature deliveries shall not be permitted without our consent.

(2) The supplier is obliged to inform us immediately in writing if circumstances occur or become apparent according to which the delivery time cannot be met.

(3) If the day on which the delivery must be made at the latest can be determined on the basis of the contract, the supplier shall be in default on expiry of this day without this requiring a reminder from us.

(4) In the event of a delay in delivery, we shall be entitled to the statutory claims without limitation, including the right to withdraw from the contract and the claim for damages instead of performance after the fruitless expiry of a reasonable grace period.

(5) In the event of delays in delivery, we shall be entitled, after prior written warning to the Supplier, to demand a contractual penalty of 0.5%, up to a maximum of 5%, of the respective order value for each commenced week of the delay in delivery. The contractual penalty shall be set off against the damage caused by delay to be compensated by the Supplier.

(6) Unless otherwise agreed, delivery shall be made DDP in accordance with the current version of Incoterms.

(7) If the place of destination is not specified and nothing else has been agreed, the delivery shall be made to our registered office in Bad Berleburg. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver). Even if shipment has been agreed, the risk shall not pass to us until the goods have been handed over to us at the agreed destination.

§ 5 Safeguarding of ownership

(1) We reserve the title or copyright to orders placed by us, orders as well as drawings, illustrations, calculations, descriptions and other documents made available to the supplier. The supplier may not make them available to third parties or use or reproduce them himself or through third parties without our express consent. He shall return these documents to us in full at our request if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. In this case, any copies made by the Supplier shall be destroyed; the only exceptions to this are storage within the scope of statutory storage obligations and the storage of data for backup purposes within the scope of normal data backup.

(2) Tools, devices and models which we make available to the supplier or which are manufactured for contractual purposes and which are charged to us separately by the supplier shall remain our property or shall become our property. They must be identified by the supplier as our property, carefully stored, secured against damage of any kind and only used for the purposes of the contract. In the absence of an agreement to the contrary, the contracting parties shall each bear half of the costs of their maintenance and repair. However, insofar as these costs are attributable to defects in such items manufactured by the Supplier or to improper use on the part of the Supplier, its employees or other vicarious agents, they shall be borne solely by the Supplier. The supplier shall notify us immediately of any damage to such items which is not merely insignificant. Upon request, he shall be obliged to return the items to us in proper condition if they are no longer required by him for the performance of the contracts concluded with us.

(3) The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. If, however, we accept an offer of the supplier for transfer of title conditional on payment of the purchase price in an individual case, the supplier's retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorized to resell the goods in the ordinary course of business, even before payment of the purchase price, with advance assignment of the claim arising therefrom. This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.

(4) The material supplied by us for processing shall remain our property. The material may only be used for our orders. Prior to the start of production, the supplier shall inspect the material for defects and perform an identity check. We must be notified immediately of any defects found. The processing of the material provided by us shall in any case be carried out for us. If the value of the material provided exceeds the value of the processing and, if applicable, of the other components of the newly manufactured items, we shall become the owner of the newly manufactured items, otherwise co-ownership shall arise in the ratio of the value of the material provided to the value of the overall result.

§ 6 Warranty claims

(1) In the event of defects, we shall be entitled to the statutory claims without limitation.

(2) In accordance with the statutory provisions, the supplier shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us. In any case, those product descriptions which - in particular by designation or reference in our order - are the subject matter of the respective contract or have been included in the contract in the same way as these General Terms and Conditions of Purchase shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, from the supplier or from the manufacturer.

(3) Notwithstanding Section 442 (1) sentence 2 of the German Civil Code (BGB), we shall also be entitled without limitation to claims based on defects if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.

(4) Deviations in quality and quantity shall be deemed to have been notified in good time if we notify the supplier of them within 7 working days of receipt of the goods by us. Hidden material defects shall be deemed to have been notified in good time if the supplier is notified within 7 working days of discovery.

(5) We do not waive warranty claims by acceptance or approval of samples or specimens submitted.

(6) Subsequent performance shall also include the removal of the defective goods and their re-installation, provided that the goods have been installed in another item or attached to another item in accordance with their nature and intended use. Our statutory claim for reimbursement of corresponding expenses shall remain unaffected. The Supplier shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.

(7) Without prejudice to our statutory rights and the regulations, the following shall apply: If the supplier fails to meet its obligation of subsequent performance - at our option by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery) - within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the supplier of the expenses required for this purpose or a corresponding advance payment. If subsequent performance by the supplier has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the supplier of such circumstances without undue delay, if possible in advance.

(8) Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.

(9) Upon receipt of our written notice of defects by the supplier, the limitation period for warranty claims shall be suspended until the supplier rejects our claims or declares the defect eliminated or otherwise refuses to continue negotiations on our claims. In the event of replacement delivery and rectification of defects, the warranty period for replaced and rectified parts shall start anew, unless we had to assume, based on the Supplier's conduct, that the Supplier did not consider itself obligated to perform the measure, but only performed the replacement delivery or rectification of defects as a gesture of goodwill or for similar reasons.

(10) In the event of a justified notice of defect, we reserve the right to charge the Supplier a lump sum in the amount of € 200.00 for the additional effort involved in the handling of the defect. The supplier shall be permitted to prove that we have not suffered any damage or a reduction in value at all or that the damage or reduction in value is significantly lower than the lump sum. The assertion of the aforementioned lump sum shall be without prejudice to our other claims - in particular, we shall remain unrestrictedly entitled to assert any claims for subsequent performance or damages.

§ 7 Supplier recourse

(1) We shall be entitled to our statutory rights of recourse within a supply chain (supplier recourse pursuant to §§ 445 a, 445 b, 478 BGB) without limitation in addition to the claims for defects. In particular, we shall be entitled to demand from the supplier exactly the type of subsequent performance (repair or replacement delivery) that we owe to our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) shall not be restricted hereby.

(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 445 a para. 1, 439 para. 2 and 3 BGB, and consequential damages), we shall notify the supplier and request a written statement, briefly stating the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the supplier shall be responsible for providing evidence to the contrary.

(3) Our claims under supplier recourse shall also apply if the defective goods have been further processed by us or another contractor, e.g. by incorporation into another product.

§ 8 Product Liability

(1) If the supplier is responsible for product damage, he shall indemnify us against claims of third parties to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties.

(2) Within the scope of its indemnification obligation, the Supplier shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a claim by third parties including recall actions carried out by us. We shall inform the supplier about the content and scope of recall measures - to the extent possible and reasonable - and give him the opportunity to comment. Further legal claims shall remain unaffected.

(3) The supplier shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage.

§ 9 Industrial property rights

(1) In accordance with paragraph 2, the supplier shall be responsible for ensuring that no third party property rights are infringed by products supplied by him in countries of the European Union or other countries in which he manufactures the products or has them manufactured.

(2) The supplier shall be obliged to indemnify us against all claims raised against us by third parties due to the infringement of industrial property rights referred to in paragraph 1 and to reimburse us for all necessary expenses in connection with this claim. This claim shall exist irrespective of any fault on the part of the supplier.

(3) Our further statutory claims based on defects of title of the products delivered to us shall remain unaffected.

§ 10 Spare parts

(1) The supplier shall be obliged to keep spare parts for the products delivered to us in stock for a period of at least 4 years after delivery.

(2) If the Supplier intends to discontinue the production of spare parts for the products delivered to us, it shall notify us thereof without undue delay after the decision on the discontinuation. Subject to paragraph 1, this decision must be made at least 3 months prior to the discontinuation of production.

§ 11 Limitation

(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.

(2) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims for defects shall be 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall also apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for claims in rem of third parties for surrender of goods (Section 438 (1) No. 1 BGB) shall remain unaffected; claims arising from defects of title shall not become time-barred in any case as long as the third party can still assert the right against us - in particular in the absence of a limitation period.

(3) The limitation periods of the law on sales including the above extension shall apply - to the extent provided by law - to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply in this respect, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
 

§ 12 Secrecy

(1) The supplier shall be obliged to keep the terms of the order as well as all information and documents made available to him for this purpose (with the exception of publicly accessible information) secret for a period of 2 years after conclusion of the contract and to use them only for the execution of the order. He shall return them to us immediately upon request after completion of inquiries or after processing of orders.

(2) Without our prior written consent, the supplier may not refer to the business relationship in advertising material, brochures, etc. and may not exhibit delivery items manufactured for us.

(3) The supplier shall oblige its sub-suppliers in accordance with this § 12.

§ 13 Choice of Law and Place of Jurisdiction

(1) These General Terms and Conditions of Purchase and the contractual relationship between us and the Supplier shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) For all disputes arising from the contractual relationship - including international disputes - the local and subject-matter jurisdiction of the Local Court of Bad Berleburg is agreed.

However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Purchase or a prior individual agreement or at the general place of jurisdiction of the supplier. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.

Bad Berleburg, July 24, 2018