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Terms and Conditions of Purchase for Suppliers of Process Chemicals, Systems and Components for Electroplating (as of: 1 April 2018)

General provisions

  1. The following Terms and Conditions of Purchase apply to all procurements by the Principal, irrespective of whether they are purchases, factory orders or other procurements (in the following: Procurement); the Terms and Conditions apply to all contracts concluded in the future for ongoing business relationships with Contractors. Individual provisions of the contracts take precedence over these Terms and Conditions of Purchase (Section 305b German Civil Code (BGB)). This applies also to provisions for which there is an individual agreement.
  1. These Terms and Conditions of Purchase apply exclusively; the Principal does not recognise any terms and conditions maintained by the Contractor that conflict with or contradict these Terms and Conditions of Purchase, unless they are explicitly approved by the Principal in writing, they agree with these Terms and Conditions, or the Principal has explicitly defined them as the basis of the individual contract or the relevant performance.
  1. These Terms and Conditions of Purchase only apply in dealings with registered businesses in accordance with Section 13 BGB and do not apply to consumers.
  1. All deliveries and services must comply with the relevant DIN regulations, laws and ordinances (in the following: regulations). This applies in particular to regulations concerning safety, occupational health and safety and environmental protection. Moreover, all deliveries and services must comply with the agreed rules and standards and must be state of the art for the respective type of delivery or service.
  1. The Contractor must provide the Principal with all necessary and industry-standard records, documents, descriptions and plans at no additional cost. Further, the Contractor assigns to the Principal, at no cost and irrevocably, all rights (excepting industrial property rights) to the work results of this contract. The Contractor grants to the Principal the free, transferrable and unrestricted right of use to these work results for all forms of use, and shall make no claims for additional payment in this regard. The Contractor shall hold the Principal harmless of any claims of infringements of rights held by third parties in regard to the exploitation of work results. Insofar as exploitation of the work results shall require industrial property rights acquired by the Contractor before conclusion of this contract, the Principal shall be granted – wherever possible – free, transferrable and sublicensable rights of use. The Contractor will notify the Principal in writing and without undue delay of any such rights.
  1. The Contractor accepts the rights and obligations in regard to deliveries and services provided by subcontractors as if they were its own.
  1. The Contractor warrants that it pays the staff it employs the statutory minimum wage at least. It will take suitable measures to ensure that its subcontractors satisfy the same requirement.

II. Nondisclosure

  1. The Contractor undertakes to maintain confidentiality in regard to the business and company secrets disclosed by the Principal (including diagrams, drawings, calculations, specifications and other documents) and the insight and results produced by the Contractor on this basis (in the following: Information) even beyond the end of the contractual relationship constituted by this order, to refrain from making this Information accessible to third parties, to use it only for the execution of this order and to refrain from directly or indirectly exploiting any or all of it for copyright purposes of any kind. Use of the business and company secrets disclosed by the Principal is permitted in litigation by the Contractor against the Principal, provided that doing so is necessary for the Contractor to assert its rights.
  1. The Contractor will require its staff, legal representatives and vicarious agents to adhere to this nondisclosure agreement as well.
  1. The requirements do not apply to Information that was publicly accessible before disclosure by the Principal or thereafter without participation by the Contractor, or to Information that was lawfully disclosed to the Contractor by an independent third party not subject to a nondisclosure agreement.

III. Delivery time

  1. The time of delivery stated in the order is binding.
  1. The Contractor must inform the Principal in writing and without undue delay if circumstances occur or become apparent that would prevent adherence to the agreed delivery time or performance date.
  1. The Principal is entitled to enforce its statutory rights in the event of delayed delivery. The Principal shall be entitled in particular to demand compensation in lieu of performance and to withdraw from the contract following fruitless expiry of a reasonable grace period.

IV. Prices – terms of payment

  1. The price stated in the order is binding. Unless otherwise agreed, the Contractor will provide the Principal with the goods cleared for import on the incoming means of transport, ready for unloading at the specified destination. The Contractor carries all costs and risks associated with transport of the goods to their specified destination (i.e. DDP to the destination according to INCOTERMS 2010) and is furthermore obliged to clear the goods for export and import, to pay all duties for export and import and to complete all customs formalities (“Delivery Duty Paid”).

An obligation to return packaging must be defined in a separate agreement.

  1. The Contractor must state the order number on all shipping documents and invoices, as instructed by the Principal in its order; the Contractor shall be liable for all consequences of noncompliance with this requirement, excepting only if it can prove that it was not responsible.
  1. The Principal is entitled to enforce statutory rights of offset and retention.

V. Inspections – liability for defects

  1. Where the Procurement refers to a product, the Principal is released from its obligation to conduct an incoming goods inspection without undue delay unless the defect is obvious and immediately recognisable to the naked eye.
  1. The statutory limitation period for defects begins again upon rectification only in regard to the repaired defect and only insofar as the rectification of the defect constitutes acceptance of the defect by the Contractor.
  1. The place of fulfilment in all cases is the location specified in the order at which the goods are accepted by the Principal or the place of use for deliveries that include assembly; this does not apply to warranty claims or claims in regard to cancellation of a contract.
  1. The Principal is entitled to all statutory rights to make claims based on defects. The right to claim compensation for damages, in particular compensation in lieu of performance, is reserved explicitly.
  1. Unless a longer period is stipulated by law, the limitation period is 36 months, calculated from the transfer of risk, insofar as the mandatory provisions set out in Sections

478, 479 BGB do not apply.

  1. The Contractor carries the risk of coincidental loss and damage for all items defined in this contract, until their handover at the place of fulfilment. Any agreed acceptance shall be authoritative for the transfer of risk. Where a handover is agreed or owed and only parts of the work have been submitted for use, the Contractor and the Principal shall conduct an inspection of these parts. Notwithstanding, neither the inspection nor the partial use/submission shall be considered acceptance. The inspection is conducted exclusively to determine the degree of completion and to prosecute any defects occurring later on. Where the Principal uses parts of the work before acceptance, the Contractor shall not be liable for damage caused through the fault of the Principal.

VI. Reservation of title

  1. Where the Principal provides the Contractor with any parts or materials, the Principal shall reserve title to these items. Processing or remodelling by the Contractor are performed on behalf of the Principal. Where the Principal’s reserved goods are processed with other items not belonging to the Principal, the Principal shall acquire co-ownership of the new item in a proportionate relationship commensurate with the value of the item provided by the Principal (purchase price plus value-added tax) relative to the other processed items at the time of their processing.
  1. Where the items provided by the Principal, i.e. relevant materials are inseparably mixed with other items not belonging to the Principal, the Principal shall acquire co-ownership of the new item/materials in a proportionate relationship commensurate with the value of the reserved item (purchase price plus value-added tax) relative to the other mixed items at the time of their mixing. Where the mixing takes place such that the item belonging to the Contractor should be considered the main item, the parties agree that the Contractor shall assign proportionate co-ownership to the Principal; the Contractor shall keep the items fully or partially owned by the Principal on behalf of the Principal.
  1. Where the Principal’s entitlement to liens according to paragraph (1) an/or paragraph (2) exceed the purchase price of all as yet unpaid reserved goods belonging to the Principal by more than 10 per cent, the Principal shall be required, when suitably instructed by the Contractor, to release liens at its own equitable discretion.

VII. Liability

  1. The statutory provisions shall apply.
  1. Where the Contractor is responsible for product damage, it shall be required to hold the Principal harmless on first request of all compensation claims raised by third parties insofar as the causes are in its own sphere of control and organisation and it is liable in external relations.
  1. Moreover, in regard to its liability for damage, i.e. in the event of blame being attributable to the Contractor, the Contractor shall be obliged to reimburse all expenses in accordance with Sections 683 and 670 BGB or in accordance with Sections 830, 840 or 426 BGB that are incurred due to or in connection with a recall measure initiated by the Principal. Where possible and reasonable, the Principal shall notify the Contractor of the content and scope of the recall measure and will provide it with opportunity to respond. This is without prejudice to the Principal’s obligation to minimise damage. All other statutory claims by the Principal against the Contractor remain unaffected.
  1. The Contractor undertakes to agree and pay for adequate insurance coverage to mitigate the risks of this order, in particular by concluding a company and product liability policy (in line with the product liability model used in the German insurance industry (ProdHM)), as well as an environmental liability policy.

These policies must provide the following coverage at least:

  • €10 m as a lump sum per event for personal, material and asset damage as set out in the ProdHM.
  • The insurance policies must also cover consequential damages.
  • Proof of insurance coverage must be presented to the Principal on request.

The scope and amount of insurance coverage does not affect the Contractor’s contractual and statutory liability.

VIII. Place of jurisdiction – place of fulfilment

  1. The place of jurisdiction shall be the registered address of the Principal insofar as the Contractor is a merchant; notwithstanding, the Principal shall also be entitled to bring action against the Contractor before a court at its place of residence.
  1. The laws of the Federal Republic of Germany shall apply with the exclusion of UN purchasing law (CIGS). The latest version of the Incoterms as published by ICC shall apply as trade terms.

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