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GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT (08-2018)

Scope

These General Terms and Conditions shall exclusively apply to all our offers, contracts, deliveries and other services (hereinafter "delivery") provided to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Sec. 310 para. 1 German Civil Code (BGB), also in all future business relations, even if they are not explicitly agreed upon again. These Terms and Conditions shall be deemed accepted upon order placement or receipt of the products at the latest. We hereby explicitly object to any deviating or supplementary conditions set by our customer, they shall not be binding for us; such conditions shall only apply if we have expressly agreed to them in writing. Also, in case we participate in a customer’s electronic platform and activate any dialogue boxes requested by the system, such activation does not constitute an acceptance of the terms of use or any other general terms and conditions of the customer.

Should any provision of the present General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions thereof.

Formation of contracts, documents, industrial property rights

  1. Our offers are not binding. A contract shall only come into force upon our order confirmation in writing or text form. Solely our order confirmation in writing or text form is relevant for the date, kind and quantity of the delivery. If the order is not confirmed by us in writing or in text form the contract shall come into force upon performance of the order at the latest. Statements made orally or by phone by our representatives shall be legally binding only if confirmed in writing or in text form.

  2. We reserve all proprietary rights and copyrights to cost estimates, concepts, designs, drafts, drawings and other documents, in particular applied process and coating technology ("Proprietary Materials"); Proprietary Materials may be modified, saved or copied, and made available to third parties only with our explicit approval. Drawings and other documents provided as part of an offer must be returned to us upon request at any time and in any event if the order is not placed with us.

  3. No Proprietary Materials created by us in connection with or pursuant to this contract shall be considered works made for hire. To the extent that customer owns any rights in such Proprietary Materials, customer hereby irrevocably assigns to us all rights, title and interest, including all intellectual property rights, in and to such Proprietary Materials.

  4. In case we deliver items according to drawings, models, samples or other documents provided by the customer, the customer shall ensure that: (i) industrial property rights of third parties are not infringed, and (ii) products made or coated based on such customer information are in compliance with all applicable laws and regulations, in particular such related to products safety. If a third party, by invoking proprietary rights, prohibits in particular the manufacturing and delivery of such items, we shall be entitled to suspend all relevant activities and to claim damages without being obliged to analyse the legal situation (see also clause 8.3). In addition, the customer shall immediately indemnify us and hold us harmless from any costs and third-party claims related to design or other documents provided to us by the customer.

  5. In case we deliver items according to drawings, models, samples or other documents provided by the customer, the customer shall ensure that: (i) industrial property rights of third parties are not infringed, and (ii) products made or coated based on such customer information are in compliance with all applicable laws and regulations, in particular such related to products safety. If a third party, by invoking proprietary rights, prohibits in particular the manufacturing and delivery of such items, we shall be entitled to suspend all relevant activities and to claim damages without being obliged to analyse the legal situation (see also clause 8.3). In addition, the customer shall immediately indemnify us and hold us harmless from any costs and third-party claims related to design or other documents provided to us by the customer.

  6. We shall be entitled to procure the materials for the entire order and to manufacture the total order quantity immediately. Any customer requests for changes after order placement can, therefore, not be taken into consideration, unless explicitly agreed otherwise.

  7. To the extent necessary for manufacturing or planning related reasons, our deliveries may exceed or fall short of the agreed.

Performance description; Limited Warranties

  1. The quality of the delivered goods or services is finally described by the explicitly agreed features (e.g. specifications, labels, approvals, and other information). Any other qualities of goods and services are subject to a further explicit written agreement. Therefore, any warranty for a special application purpose or particular suitability, life period or durability after passing of risk requires an explicit written agreement; otherwise the risk of suitability and use shall be borne by the customer. We reserve the right to implement any legally required, customary or technically unavoidable deviations from physical and chemical quantities, including colours, recipes, chemical contamination, processes and the use of raw materials as well as order sizes and reasonable quantity variances, as far as this is not unreasonable towards the customer.

  2. To the extent the design, information, data, specifications, practices and techniques have been provided by the customer, or the deliveries are based on active pharmaceutical ingredients or parts and components selected or provided by customer or sterilized by a third party selected by customer we make no warranty whatsoever and the customer shall immediately indemnify us and hold us harmless from any related costs and third-party claims. Generally, solely customer shall be responsible for risks related to the use of customer products and all customer product related compliance requirements, including but not limited CE certifications or FDA approvals such as 510k or PMA requirements.

  3. Details of the delivery item (e.g. as provided in product information, electronic media or on labels) are based on our general experience and knowledge and are for purposes of reference value or labelling only. These product details as well as expressly agreed features or application purposes shall not relieve the customer from the obligation to test the product for the intended purpose and to take the respective measures for careful storage. In particular, but without limitation, it is acknowledged by the customer that no technical schedule, shall be deemed to constitute or contain any representation, warranty or condition relating to the deliveries.

  4. FURTHERMORE, UNLESS SPECIFICALLY AGREED OTHERWISE IN WRITING, DELIVERABLES ARE MERELY MADE TO CUSTOMERS REQUIREMENTS AND GENERALLY NOT VERIFIED; TESTED OR WARRANTED BY US TO BE BIOCOMPATIBLE, IMPLANTABLE OR IN COMPLIANCE WITH RELATED REGULATORY REQUIREMENTS ("BIOCOMPATIBLITY REQUIREMENTS"); THE CUSTOMER IS THEREFORE SOLELY RESPONSIBLE FOR THE APPROPRIATE DEFINITIONS OF THE RESPECTIVE BIOCOMPATIBILITY REQUIREMENTS AND WILL FULLY HOLD HARMLESS AND INDEMNIFY US FROM COSTS AND CLAIMS RELATED TO THE IMPROPER USE OF DELIVERIES OR PRODUCTS CONTAINING DELIVERIES INSIDE THE HUMAN BODY.

  5. THE WARRANTIES AND ANY ASSOCIATED REMEDIES SET OUT OR REFERENCED HEREIN ARE EXCLUSIVE. NO OTHER WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY US OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT ALLOWED BY LOCAL LAW WE DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF NON-INFRINGEMENT.

  6. Details of quality, durability and possible uses of our products do not include any guarantees, in particular as stipulated in Sec. 443 German Civil Code (BGB), unless such details are explicitly specified as guarantee in writing.

Delivery and delivery time

  1. Lead times are provided for information purposes only and shall be non-binding, unless it is explicitly agreed that the delivery date shall be fixed, i.e. it is put in writing that the customer has no further interest in the delivery after the agreed date. Confirmed delivery dates are subject to the correct, complete and timely receipt of supplies by us. Delivery deadlines shall be considered as met if prior to deadline expiry the delivery item has left our facility or if we have informed the customer that the order is ready for shipment. Delivery periods shall not start to run until the customer has properly fulfilled its respective obligations and contractual duties, such as furnishing technical data, product acceptance notifications in accordance with the agreed initial sampling processes and documents, approvals, making a down payment or providing a payment guarantee.

  2. We are entitled to make partial deliveries.

  3. Events of force majeure or other circumstances beyond our control that render the timely execution of accepted orders impossible shall relieve us from our delivery commitment as long as these events continue to exist. This means we do not assume the risk of procurement. Furthermore, we reserve the right to withdraw from the contract in case we do not receive the relevant products ourselves in spite of a respective prior procurement contract with our supplier; our responsibility for damages caused intentionally or negligently according to clause 8 remains unaffected. We will inform the customer without undue delay that the delivery item will not be available in time, and in case we withdraw from the contract we will return any consideration already received without undue delay.

  4. It is generally not possible to return any sold and non-defective products.

  5. In case the customer becomes subject to insolvency proceedings, or comparable proceedings under foreign law, provides a formal information of financial status (Vermögensauskunft) according to Sec. 807 German Code of Civil Procedure (ZPO), experiences payment difficulties or in case we become aware of a significant deterioration of the customer’s financial situation, we shall be entitled to suspend deliveries immediately and to refuse the fulfilment of current contracts unless the customer provides the respective consideration in advance or, upon our request, provides appropriate securities.

  6. In case the customer is in default of acceptance or payment or does culpable breach of any primary or accessory obligations, the customer shall indemnify us for any damages caused and any additional costs related thereto. Further claims and rights shall remain unaffected. In case of the customer’s default of acceptance or payment, the risk of accidental loss and damage of the products shall pass to the customer.

  7. In case the products are sent to the customer or a third party at the customer’s request, the risk of accidental loss or accidental damage of the products shall pass to the customer once the products have left our facility/warehouse at the latest, irrespective of the agreed dispatch place and irrespective of which party bears the transport costs.

  8. Unless explicitly stated otherwise, any use of Incoterms shall be deemed as a reference to the INCOTERMS 2010 as published by the International Chamber of Commerce (ICC).

  9. Unless agreed otherwise, the information we provide under export law is limited to the non-preferential origin under Art. 59 et seq. of the European Union Customs Code Regulation (EU) 952/2013.

Securities

  1. We reserve title to all delivered products until all our existing claims, including conditional and accessory claims against the customer resulting from our business relation have been satisfied; for this purpose, all deliveries shall be considered as one single delivery transaction. In case of a current account, the reservation of title shall serve as security for our outstanding balance claim. All aforementioned provisions shall also apply to future claims. In case of a material breach of contractual obligations by the customer, we may immediately retrieve the products without further notice, reasonably taking into account the legitimate interests of the customer; the customer hereby consents in advance to return the products in such instances. Retrieving the products shall only be deemed a withdrawal from the contract if explicitly so stated by us. All costs resulting from retrieving the products (in particular transport costs) shall be borne by the customer. To the extent we do not explicitly declare our withdrawal from the contract the customer may request delivery of the products only once the purchase price and all costs have been paid in full.

  2. The customer may resell or process the delivered products or mix or combine it with other items in the course of ordinary business only; however, the customer hereby assigns to us in advance all claims resulting from the resale, processing, mixing, combining or other legal grounds related to the delivered product (in particular from insurance contracts or unlawful acts) in the amount of the agreed final invoice total (incl. VAT). The same applies if a product is not resold but used by the customer for purposes of a contract for work and services or a contract for work and materials (Werk- oder Werklieferungsvertrag).

  3. The reservation of title shall also apply to new products resulting from the processing of the initially delivered items, or their mixing or combining with other items, in each case at the full value of the respective new product. These processes shall be performed on our behalf so that we shall be deemed to be the manufacturer. If third-party ownership rights remain after processing of our products or their mixing or combining with third party products, we shall acquire joint ownership in the new product at the ratio of the objective value of the processed, mixed or combined products. If our ownership ceases as a result of the processing, combining or mixing, the customer hereby already transfers to us his title and any expectant rights in the new product in the amount of the invoice value of the products delivered by us, and shall store it on our behalf free of charge.

  4. The customer shall be authorised to collect debt claims from the resale assigned to us under clause 5.2 as long as we have not revoked this authorisation. We will not collect such debt claims ourselves, as long as the customer properly fulfils its payment obligations towards us. Upon our first written demand the customer shall inform us about the debtors of the assigned claims and shall notify the debtors of the assignment.

  5. We may revoke the customer’s authorisation under clauses 5.2 and 5.4 to resell the products and to collect the debt claims assigned to us with immediate effect if the customer is in default of payment to us, experiences payment difficulties due to a significant deterioration of its financial situation or does not fulfil other material contractual obligations properly. In case the customer becomes subject to insolvency proceedings, or comparable proceedings under foreign law, discontinues payments, provides formal information of its financial status (Vermögensauskunft) according to Sec. 807 German Code of Civil Procedure (ZPO), or if a change of ownership occurs in the customer’s business due to payment difficulties, the authorisation to resell products and to collect the debt claims assigned to us shall cease automatically.

  6. The customer shall store our (jointly) owned materials on our behalf free of charge and with the due care and diligence of a prudent businessman and shall insure them against fire, burglary and other usual risks. Any required maintenance and inspection services have to be timely performed at the customer’s expense.

  7. The customer must not pledge or assign as security any products delivered under reservation of title or any products processed or manufactured on our behalf. The customer shall notify us immediately of any pledge or any other interference with our ownership rights by third parties and shall confirm our title in the respective product in writing, both to us and the third party. Any costs arising from resulting legal action shall be borne by the customer.

  8. In case the actual value of the securities exceeds the nominal amount of the secured claims by more than 10%, we will release selected securities upon the customer’s request.

  9. In case the reservation of title under clause 5.1 needs to be publicly registered or requires any other kind of cooperation by the customer in order to be valid, the customer hereby irrevocably consents to such registration and agrees to take all necessary actions at its own cost.

Prices and payment

  1. Our prices are in EUR and are valid for delivery FCA (agreed place of delivery); statutory VAT, transport and packing costs are not included.

  2. Unforeseen changes in costs beyond our control, such as costs for raw materials, wages, energy and other costs shall entitle us to adjust prices accordingly. For partial deliveries each delivery may be invoiced separately. If no specific prices have been agreed in the contract, our prices valid at the respective delivery date shall apply.

  3. Our invoices are due immediately and payable without discount. Any discount has to be specifically agreed in writing.

  4. We are not obliged to accept bills, cheques or other promises to pay, their acceptance shall not be considered a replacement of the underlying obligation (Leistung an Erfüllungs statt) but only as an additional possibility for us to receive payment (Leistung erfüllungshalber).

  5. The date of receipt of payment shall be the day on which the amount is in our possession or has been credited to our bank account. In case the customer is in default of payment we may charge interest at the rate of 9 percentage points above the base interest rate published by the Federal Bank of Germany (Bundesbank) for the duration of the default, plus a lump sum of EUR 40. This shall not restrict our right to claim additional damages or costs.

  6. In addition, in case the customer is in default of payment, we may choose to call due any outstanding purchase price instalments or other existing claims against the customer as well as to make future deliveries under this or other contracts subject to provision of a security in advance or simultaneous (Zug-um-Zug) payment against delivery.

  7. No interest will be paid on advance or partial payments.
  8. The customer may set off or withhold payments only if his counterclaim is undisputed or res judicata. This restriction shall not apply to claims of the customer for corrective measures in relation to a defective product or completion of an unfinished product.

  9. Upon request, the customer shall provide us with any documentary evidence for tax purposes (i. a. entry certificates (Gelangensbestätigung)), which we consider necessary under the applicable statutory provisions to prove our exemption from VAT for cross-border deliveries. In case of non-compliance the customer shall, after receipt of a corrected invoice, cover any VAT claims and interest imposed on us by the tax authorities. The customer shall inform us about the invalidity or any changes in its VAT identification number without undue delay.

  10. In case the purchase price is paid by way of the credit note procedure for VAT purposes, the customer shall be solely responsible for compliance with the VAT related provisions on invoices. We shall not be liable for damages resulting from the credit note procedure, e.g. any refunds of input tax and payment of interest by the customer to the competent tax authorities.

Claims for defects; Remedies

  1. We shall be liable for defects of products delivered by us only according to the following provisions:

  2. The customer shall properly fulfil its duties regarding inspection and lodging complaints under Sec. 377 German Commercial Code (HGB), i.e. the customer shall inspect the products without undue delay and shall notify us of any defects without undue delay, and, if a defect is discovered later in the ordinary course of business, shall notify us of such defect without undue delay after discovery.

  3. If defective products are delivered, we shall be given the opportunity, prior to the start of manufacturing (processing or installing), to sort out such products and to remedy the defect or to make a substitute delivery, unless this cannot reasonably be expected from the customer. In case we are unable to accomplish this or fail to comply in due course, the customer may withdraw from the contract to this extent and may return the products at our risk. In case of urgency, the customer may, following consultation with us, remedy the defects himself or instruct a third party to do so. Expenses incurred by such remedial activities shall be reimbursed by us according to clause 8.

  4. If the defect is discovered only after the start of manufacturing or initial operation, despite the fulfilment of all duties according to clause 7.2, the customer may demand subsequent performance (rework or substitute delivery at our discretion). The delivery of defective products results in a right of retention only insofar as it is in due proportion to the respective defect and the expected costs of the subsequent performance, and provided that the customer’s counterclaim is based on the same contractual relationship.

  5. Any claims for damages for defective products shall be subject to two useless attempts of subsequent performance. In case of substitute delivery the customer is obliged to return the defective products upon request.

  6. A withdrawal from the contract or a claim for reduction of purchase price shall be granted only if the defect cannot be remedied within an appropriate period, if subsequent performance will incur disproportionate costs, is unreasonable or must be considered as failed for other reasons. The customer shall, however, have no right to withdraw from the contract in case of minor defects.

  7. The customer shall allow us to inspect any rejected products without undue delay; in particular these products shall be made available to us upon request and at our cost. If complaints are unfounded, we may charge the transport costs and inspection expenses to the customer.

  8. No claims for defects may be raised in case of merely insubstantial deviations from the agreed quality, insubstantial impairment of serviceability, or if the defect can be put down to a violation of operating, maintenance or installation instructions, unsuitable or improper use or storage. This shall also apply in case of faulty or negligent handling or assembly, normal wear and tear or tampering with the delivery item by the customer or a third party.

  9. No costs may be claimed regarding the subsequent performance, the withdrawal from the contract or damage-repair because of defective products, in particular costs for de- and reinstallation, testing, validation, shipment, transportation, labour and material, insofar as: (i) these claims and costs result from the fact that the products have been transferred to a place different from the agreed place of performance after passing of risk, or (ii) at the time the costs were incurred, which means generally at the time of deliver but at latest during installation or processing, the customer knew or reasonably should have known of the defect. However, this does not apply in case such transfer corresponds with the normal use of the products known to us.

  10. Damages and reimbursement of expenses may only be claimed according to clause 8.

  11. The customer may not make the aforementioned claims for any products, which, according to mutual agreement, we do not deliver as new products.

Liability

  1. Costs regarding the subsequent performance, the withdrawal from the contract or damage-repair because of defective products, in particular costs for de- and reinstallation, testing, validation, shipment, transportation, labour and material shall not exceed the total value of the respective order. We shall be liable for any damages, in particular resulting from a breach of duty of care when entering into a contract (culpa in contrahendo), from a breach of obligations or from unlawful acts (Sec. 823 et seq. German Civil Code (BGB)), only to the extent that we, our employees or vicarious agents (Erfüllungsgehilfen) have acted intentionally or grossly negligent.

  2. For damages resulting from death or bodily harm or a violation of material contractual obligations, we shall also be liable for ordinary negligence. Contractual obligations shall be deemed as "material" if their fulfilment is a prerequisite for proper performance of the contract and the customer regularly trusts in their fulfilment and also may do so. In case of a violation of a material contractual obligation our liability shall be limited to the direct average damage, predictable and typical for the respective type of product. This shall also apply to a breach of obligations by our employees or vicarious agents (Verrichtungsgehilfen or Erfüllungsgehilfen).

  3. We shall be liable for the infringement of third parties’ industrial property rights in connection with the sale of our products under the foregoing provisions only if the infringement results from the proper use of our product, and only to the extent such third parties’ industrial property rights are valid in the Federal Republic of Germany and have been published at the time of delivery. This shall not apply if we have manufactured the product according to designs, drawings, models, or other descriptions or data provided by the customer or based on active pharmaceutical ingredients or parts and components selected or provided by customer or sterilized by a third party selected by customer and/or if we did not know or did not have to know of any infringement of industrial property rights in connection with the developed product. In this case our customer is liable for any current or future infringement of third parties’ industrial property rights. The customer undertakes to inform us without undue delay of any potential and alleged cases of infringement of third parties’ industrial property rights he may become aware of, and to indemnify us from any third parties’ claims, costs and expenses incurred.

  4. Claims for defects of delivered products, including any damages relating to such defects – irrespective of the legal grounds – shall become time-barred one (1) year after delivery.

  5. Claims for price reduction and rights to withdraw from the contract shall be excluded insofar as the primary claim for performance or the secondary claim for subsequent performance has become time-barred.

  6. Our mandatory liability pursuant to the provisions of the German Product Liability Act (Produkthaftungsgesetz) towards harmed third parties and mandatory elements of Sec. 478, 479 German Civil Code (Letztverkäuferregress) shall remain unaffected by the foregoing provisions.

  7. We shall only be liable for claims of recourse by the customer if and to the extent the customer has not accepted obligations towards his own customer beyond the mandatory statutory provisions on remedies for defects and liability. Unless agreed otherwise in writing, clauses 7 and 8 shall apply accordingly to any claims of recourse raised by the customer.

  8. WE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THE OBLIGATIONS UNDER THIS CONTRACT. THE TERM "CONSEQUENTIAL DAMAGES" INCLUDES, BUT IS NOT LIMITED TO, PATIENT’S MEDICAL EXPENSES, LOSS OF USE, LOSS OF INCOME, REVENUE AND COST OF CAPITAL OR PAIN AND SUFFERING. EXCEPT FOR PERSONAL INJURY OR DEATH DUE TO OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OUR AGGREGATE LIABILITY RELATING TO OUR OBLIGATIONS UNDER THIS CONTRACT (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE SHALL IN NO EVENT EXCEED: (I) ON AN AGGREGATED CLAIM BASIS, THE AMOUNT PAID TO US UNDER THIS CONTRACT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY ("THE COMBINED TOTAL"), OR (II) 10% OF THE COMBINED TOTAL ON A PER CLAIM BASIS. WE DO NOT ACCEPT ANY FURTHER LIABILITY.

Confidentiality

  1. Customer shall keep any knowledge and information of a technical or economical nature it has received from us in connection with the business relationship ("Confidential Information") strictly confidential towards third parties at any time, even after the end of the business relationship, unless the customer proves that the Confidential Information is (i) already known to the customer or in the public domain at the time of disclosure or subsequently becomes public knowledge other than through a fault of the customer, (ii) subsequently developed by the customer completely independent from the Confidential Information, or (iii) received by the customer from a third party without breach of a confidentiality obligation.

  2. We remain the sole owner of any documents, in particular drawings, containing Confidential Information, which are disclosed in the course of the business relationship. Any such documents must be returned to us upon our request but at the latest at the end of the business relationship. The customer has no right of retention regarding Confidential Information or documents or materials containing Confidential Information.

  3. The disclosure of Confidential Information does not establish any industrial property rights, rights to knowhow or copyrights of the customer and does not constitute a prior publication or right of prior use according to the applicable patent, design and utility model laws. Any kind of license is subject to a written agreement.

Compliance; Recalls

  1. The customer shall comply with foreign trade law provisions, in particular with any applicable export control regulations under German, EU and US law and hereby agrees that we can reasonably review, save, process and reasonably share with professional service providers customer data, including personal data, for compliance purposes in each case subject to the applicable data privacy laws and limited in extent and scope to the extent necessary to ensure legal and regulatory compliance. The customer will not engage in any business related to ABC weapons or military application, and he undertakes not to deal with or otherwise cooperate, neither directly nor indirectly, with any terrorist or terrorist organizations or any other criminal or anti-constitutional organizations. The customer will in particular establish reasonable organizational measures to implement applicable embargoes, the European regulations against terroristic and criminal acts and the respective requirements under US law or any other law applicable to the business relationship, in particular by implementing adequate software systems. Once a product has left our facilities, the customer shall be solely responsible for compliance with the abovementioned provisions and shall indemnify us from any and all claims or related costs resulting from the violation of the respective laws or regulations by the customer, its affiliates, employees, representatives or any of its vicarious agents (Erfüllungsgehilfen), including reasonable attorney or consultant fees, administrative fees and penalties.

  2. We will reasonably comply with the obligations resulting from the European Chemicals Regulation No. 1907/2006 ("REACH") that are directly applicable to us and will be liable for breaches according to clause 8. The customer shall, however, be solely liable for any negative consequences resulting from the provision of insufficient information by the customer, including any incorrect or incomplete information relating to the use of products within the supply chain. Outside of Europe, solely the customer is responsible for regulatory chemical compliance.

  3. In the event in the reasonable opinion of one party a voluntary or government-mandated recall, field correction, market withdrawal, stock recovery, or other similar action with respect to the deliveries ("Recall") is required the customer will consult with us without delay, however the final decision for handling any Recall shall rest with us. Customer will immediately (i.e., within 24 hours or less) notify us if the customer learns that a potential Recall implicates the deliveries, and if a complaint alleges that a death or serious deterioration in the state of health has occurred. In other cases, the customer will notify us of complaints within two (2) calendar days without any delay that could not be justified. Customer will provide all reasonable assistance requested by us in the conduct of a Recall, and will: (a) provide us with available performance evaluations, accident reports, engineering investigations, and other data relating to the potential Recall; (b) provide us a reasonable opportunity to participate in inquiries and discussions among customer, its end-customer and governmental agencies regarding the need for and scope of the Recall; and (c) consult with us about the most cost-effective method of modifying or replacing systems or component parts, including the deliveries, in order to remedy the alleged defect or non-compliance. Unless agreed otherwise on a case by case basis, we shall be solely responsible for notifying governmental or regulatory authorities regarding any such matters specifically related to our deliveries, and customer will cooperate with us in reporting any requirements or other follow-up activities (including but not limited to, corrective action) relating thereto. Each party will designate a representative responsible for the exchange of such information and for all other regulatory information. In the event of a Recall, customer will not make any statement to the press or public concerning the Recall without first notifying us and obtaining our prior approval of any such statement. If a Recall arises from any other reason, including customer’s design, specifications, or mandated suppliers, active pharmaceutical ingredient or parts provided or selected by customer, customer mandated sterilizers, customer acts or omissions in the marketing, distribution, storage, or handling of the deliveries or a product containing the deliveries, the costs and responsibilities of the Recall will be borne by the customer. The parties will maintain records of all sales of deliveries and products containing deliveries sufficient to adequately administer a Recall for the period required by applicable law.

Place of performance and jurisdiction, miscellaneous

  1. For all claims resulting from our business relationship with the customer, in particular regarding our deliveries, the site from which the delivery originates shall be deemed the place of performance.

  2. The customer may assign its claims arising from the contractual relationship only with our prior written approval.

  3. For all claims resulting from our business relationship with the customer, in particular regarding our deliveries, the exclusive place of jurisdiction shall be Weinheim/Bergstraße, Germany. This shall also apply to disputes concerning the formation and validity of a contractual relationship. We shall, however, also have the option to sue the customer in the courts competent for the customer’s place of business.

  4. If a customer’s place of business is located outside of Germany, we shall be entitled to have all disputes arising out of or in connection with our business relationship with the customer, including disputes about the validity of contracts, finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law. The place of arbitration shall be Frankfurt a. M., Germany. Upon request, we shall exercise our right to choose arbitration before proceedings are initiated. The arbitration proceedings shall be conducted in German, unless the customer requests them to be held in English.

  5. The business relationship with the customer shall be exclusively governed by the laws of Germany, excluding its rules of private international law, the UN Convention on the International Sale of Goods (C.I.S.G.) and other bilateral or multilateral conventions on the harmonisation of law regarding the international sale of goods.

This is a convenience translation of our German Conditions of Delivery and Payment (Allgemeine Liefer- und Zahlungsbedingungen). In case of discrepancies between the German and the English version, the German version shall prevail.


GENERAL CONDITIONS OF PURCHASE (08-2018)

Scope

  1. These Conditions of Purchase shall apply exclusively to all of our or our affiliated companies’ orders and contracts (hereinafter “order”) governing the purchase of goods, services and work performance (hereinafter “delivery”) from entrepreneurs, legal persons under public law or special funds under public law within the meaning of Sec. 310 para.1 German Civil Code. We hereby explicitly object to any deviating or supplementary conditions set by our suppliers, they shall not be binding for us. Our Conditions of Purchase shall also apply exclusively if we do not object to the incorporation of our supplier’s conditions in individual cases or if, although being aware of contrary or supplementary terms and conditions of the supplier, we accept a delivery without reservation.
  2. These Conditions of Purchase also apply to all future business relations with the supplier, even if they are not explicitly agreed upon again.
  3. Should any provision of these Conditions of Purchase be invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a lawful provision coming as close as possible to the commercial purpose of the invalid provision.

Formation of contracts

  1. Any agreement with the supplier and all orders shall be considered binding for us only if they are put down in writing or in text form. Any modification, addition or subsidiary agreement before, at or after the contract formation also requires our consent in writing or text form. This form requirement may only be waived in writing or in text form.
  2. If the supplier does not accept our order in writing or in text form within two (2) weeks of receipt, we shall be entitled to revoke the order. Delivery calls shall be binding unless the supplier objects within three (3) working days of receipt. Any deviation from, modification of or supplement to our orders shall only be effective if explicitly and separately indicated as deviation, modification or supplement and expressly approved by us.

Prices and payment

  1. Prices specified in the order are firm. Prices are valid for “delivery at place” (DAP), as well as any packaging, adequate transport insurance to be taken out by supplier, and all other costs of delivery, unless explicitly agreed otherwise in writing. VAT is not included in the price. Unless explicitly stated otherwise, any use of Incoterms shall be deemed as a reference to the INCOTERMS 2010 as published by the International Chamber of Commerce (ICC).
  2. In cases where the supplier is responsible for erection, assembly or commissioning, and the parties have not agreed otherwise in writing, the supplier shall bear all necessary incidental costs, such as travel expenses and costs for provision of tools.
  3. Invoices will be processed only if we receive them by separate mail. Each order must be invoiced separately. Invoices must state the order number specified in our order, the order date, the company name of supplier and our item number, all clearly highlighted.
  4. Invoices must be made out in EUR, payments will be made in EUR only, unless agreed otherwise. For each bank account, the supplier shall provide the correct IBAN and BIC codes, as well as its VAT identification number.
  5. Payments will be made, at our option, by bank transfer or cheque or bill of exchange after taking delivery and receipt of a verifiable invoice and all documents pertaining to the delivery. Accounts may also be settled by us in line with the credit note procedure (self-billing procedure) according to the applicable tax laws, if agreed upon in advance. Unless otherwise agreed upon in writing, we shall pay within 30 days without discount.
  6. The supplier shall not be entitled to assign or otherwise dispose of its claims wholly or partly against us without our prior written consent.
  7. We shall be entitled to exercise statutory setoff and retention rights.

Dates and terms of delivery

  1. Delivery dates specified in the order or otherwise agreed upon are binding and must be strictly met. The supplier shall promptly notify us in writing of any potential delays or non-compliance with delivery dates and deadlines, explaining the reasons for the delay and specifying how long they are expected to prevail.
  2. Deliveries by instalments and premature deliveries shall be allowed only with our written consent. Payment claims, however, shall be due no earlier than on the delivery date originally agreed upon.
  3. Unless otherwise agreed upon, deliveries must be accompanied by a delivery note and a works test certificate according to EN 10204:2005-01 or any other equivalent internationally recognized test certificate specifying the characteristics agreed upon with the supplier. Initial supplies must be accompanied by an initial sampling.
  4. On-site deliveries are only possible at the time stated in the order or as otherwise agreed upon. Unless otherwise agreed upon, when entering a Freudenberg site all occupants of vehicles must be registered. It is generally prohibited to take children or animals along to a Freudenberg site. Wearing safety boots is mandatory at loading and unloading facilities. Any instructions by the safety staff must be complied with.
  5. In case of delays in delivery we shall be entitled to impose a contractual penalty of 1% for each commenced week of delay, but no more than a total of 10% of the order value; the supplier shall however have the right to prove that no damage was caused or the damage is materially lower. We reserve the right to claim further damages. We shall reserve the contractual penalty no later than upon payment of the invoice, following receipt of the delayed delivery.
  6. Events of force majeure that render a delivery by our supplier or the acceptance or use of the delivery in our or at our customer’s business impossible or substantially more difficult shall postpone our acceptance duty for an appropriate period of time, considering our actual demand. In cases of force majeure concerning us or our supplier we shall also have the right, at our discretion, to wholly or partially withdraw from the contract.

Place of performance, passage of risk and acquisition of ownership

  1. The place of performance shall be the location to which, according to the order, the goods have to be delivered or where the service is to be performed. The place of performance shall be our registered office.
  2. The delivery shall be properly packed and made DAP to the address designated by us or performed there for the supplier’s account and at supplier’s risk. The risk of accidental perishing or deterioration of delivery will pass to us only with receipt of delivery by us or by a forwarding agent appointed by us at the agreed place of performance or after final acceptance of the delivery, whichever is later, even if we have agreed to pay the freight charges.
  3. With the passage of risk at the place of performance or with delivery to a forwarding agent specifically appointed by us we shall acquire ownership of the goods without reservation of any rights for the supplier.
  4. In case of delivery of machinery or plants, the risk shall pass only after their final acceptance at the place of performance.

Liability for defects and other liability

  1. We will inspect the delivered goods based on the accompanying documents for identity and quantity as well as for visible transport damage. Defects in the delivery will be notified to the supplier once we discover them in the ordinary course of our business, within an appropriate time of at least five (5) working days following the detection. Under these circumstances, the supplier hereby waives its right to object to claims in relation to defects on grounds that they have been raised too late (Sec. 377 German Commercial Code (HGB)).
  2. Unless stipulated otherwise in this clause 6, the supplier shall be liable according to the applicable statutory provisions, in particular for defects of the delivery and the fitness for the agreed use or such fitness for a particular purpose or use by us or our customers which is known or should have been known to supplier, and this liability shall not be limited or excluded, neither in cause nor amount, and shall also indemnify and hold us harmless from and against any third party‘s claims to the same extent. Furthermore, the supplier hereby assigns to us any and all transferrable warranty and guarantee rights related to the deliveries or parts thereof which have been provided or granted to supplier by its sub-suppliers.
  3. In principle we shall be entitled to choose the type of subsequent performance. The supplier may however refuse the type of subsequent subsequent performance were unreasonably high.
  4. If the supplier fails to remedy the defect promptly upon our request, we shall - in urgent cases, in particular to avert imminent danger or to mitigate damages - have the right to remedy the defect ourselves at the supplier’s cost or have this done by a third party without having to grant a period of grace in advance.
  5. Claims for defects shall become time-barred 24 months after the sale of the final product to the consumer, but no later than 30 months after receipt of the delivery by us, unless agreed otherwise or unless mandatory statutory provisions provide for extended limitation periods. In case of claims resulting from contracts for services and works, claims for defects shall become time-barred 30 months after the written final acceptance. This shall not apply to deliveries that, consistent with their common application, are used in buildings and have caused the building’s defectiveness, in that case claims will lapse after 5 years. Our additional statutory rights under the applicable law shall remain unaffected by this provision.
  6. In addition, the supplier shall indemnify us from any third-party claims related to deficiencies in title. For deficiencies in title, including indemnification claims pursuant to sentence 1, a limitation period of 10 years shall apply.
  7. If a defective delivery necessitates extra work in the incoming inspection process, the supplier shall bear the resulting costs.

 Product liability and insurance

  1. The supplier shall indemnify us from any third party claims, costs and expenses (including legal fees) arising out of defects or other breaches of this contract, the death of or injury to any person or damage to property, if and to the extent the causes for the respective claim lie in the supplier’s domain. Under these circumstances the supplier shall also reimburse us for all costs and expenses related to this contract as well as according to the statutory provisions on the administration of others’ affairs that we or our customers incur as a result of or in connection with a recall action or any other measure.
  2. The supplier shall maintain a product liability insurance (including coverage for extended public- and product liability and recall costs) with a coverage of at least EUR 5,000,000.00 (EUR five million) in total per claim for personal, property or product-related damages; however, our claims shall not be limited to the covered amount. Supplier shall immediately provide a certificate of insurance documenting such coverage.

Industrial property rights and legal compliance

  1. The supplier shall ensure that neither the delivery nor its use infringe upon industrial property rights or other rights of third parties and do not violate statutory provisions or official regulations of any kind. Unless otherwise agreed upon, the supplier must comply with our guideline „Avoidance of particularly hazardous substances“ (FSS 7), which we will provide upon request, and the environmental standard ISO 14001. Upon our request, the supplier shall provide all relevant IMD system data, REACH data, GHS data and any other data relevant under export law free of charge.
  2. The supplier shall indemnify us from all claims raised against us by third parties for reasons of or in connection with the delivery or its use. Clause 6.6, sentence 2 shall apply to such claims.
  3. The supplier’s obligation of indemnification shall also cover all costs and expenses (including legal fees) arising from or in connection with claims raised by a third party.
  4. For the supply of machinery and plants falling under the EU Machinery Directive 2006/42/EG or under any other laws and regulations issued on the basis of this Directive, the supplier shall also provide a risk analysis or risk assessment in conformity with DIN EN ISO 12100:2011 in accordance with the EU Machinery Directive 2006/42/EG free of charge and together with the products.
  5. The supplier acknowledges that we, as a manufacturer of products and items, are considered as a downstream user within the meaning of the European Chemicals Regulation No. 1907/2006 (“REACH”) and warrants to comply with all REACH obligations, in particular those governing the sale, processing or trading of goods within the EU, including (a) to perform any legally required pre-registration, registration or authorization of chemical substances or preparations, (b) to implement internal organizational measures to document compliance with REACH, (c) to ensure that any use(s) of chemicals or preparations in the products (including packaging materials), which we or any of our customers have specified or notified to the supplier, is covered by the respective pre-registration, registration or authorisation, (d) to inform us without undue delay if a pre-registered substance or preparation will not or cannot be finally registered or authorized within the respective transition period and (e) not to sell or deliver any product containing prohibited Substances of Very High Concern (SVHC) ((a) to (e) together “REACH Warranties”). The supplier acknowledges that any breach of a REACH Warranty will generally result in a defect of the respective substance, preparation or other product or item under the applicable law and agrees to indemnify us against any claims, liabilities, expenses and damages caused by the supplier as a result of breaching the aforesaid REACH Warranties, and will support us in our legal defence against such claims at supplier’s cost.
  6. The supplier undertakes to provide a so-called proof of origin for the products, i.e. the supplier shall provide us with the required declarations of origin in terms of commercial and preferential law in a timely manner, and shall also notify any change of origin without undue delay and without request. The supplier may have to prove its declarations of the products’ origin by means of an information sheet certified by its competent customs office. If the supplier fails to fulfill this obligation, it shall be liable for any resulting damage and commercial disadvantages.
  7. The supplier ensures that it will provide the performance owed pursuant to clause 1.1 itself and that it will use subcontractors and downstream contractors (hereinafter referred to as the "Subcontractor Chain") only with our previous written consent.
    It further ensures that it shall itself, and all contractors of the Subcontractor Chain who have been duly called in by it as well as possible temporary employment agencies commissioned by them shall also pay to the deployed temporary workers the applicable legal minimum wage, in particular according to the German Minimum Wage Act (Mindestlohngesetz – "MiLoG"), as amended. In addition, the supplier confirms that its enterprise and the enterprises of the Subcontractor Chain used by it are not excluded from tendering for public procurements pursuant to § 19 of the German Minimum Wage Act.
    We shall be entitled already in the course of the examination of the offer, to request from the supplier on a spot-check basis the submission, without any specific reason, as anonymized data, the current payslips for the workforce used by the supplier and the Subcontractor Chain (payrolls). The supplier may also provide to us upon request proof of compliance with the German Minimum Wage Act within its own company and along the Subcontractor Chain by promptly submitting an up-to-date confirmation from a suitable objective expert (for instance a chartered accountant).
    In the event that claims are asserted against us by an employee of the supplier of the Subcontractor Chain, based on a claim for remuneration that actually exists according to the German Minimum Wage Act, the supplier undertakes to pay to us for each instance of an assertion of claims upon first request a contractual penalty in an amount of EUR 250.00. The contractual penalty payable shall credited towards any claim for damages of Principal and its amount shall be limited for each order to no more than 10% of the respective order value and to a total maximum amount per calendar year of EUR 25,000.00. The obligation to pay the contractual penalty shall not exist if the supplier is not at fault, for which it shall bear the burden of proof.
    In the event that claims are asserted against us by an employee of the supplier of the Subcontractor Chain, based on a claim for remuneration that actually exists according to the German Minimum Wage Act, we shall be entitled to terminate any orders pursuant to clause 1.1 on an extraordinary basis and thus without notice.
    The supplier shall indemnify us upon first demand from any claims which asserted by third parties against us in connection with infringements of the German Minimum Wage Act. However, this shall not apply if it can be shown in the individual case that we and/or our employees or vicarious agents have ourselves violated the provisions of the German Minimum Wage Act intentionally or in a grossly negligent manner.

Retention of title and tooling

  1. We reserve to all items provided by us as part of the delivery (e.g. parts, components, semi-finished goods).
  2. The retention of title shall also apply to new products resulting from the processing of our items, or their mixing or combining with other items, in each case at the full value of the respective new product. These processes shall be performed on our behalf so that we shall be deemed to be the manufacturer. If third-party ownership rights remain after processing of our items or their mixing or combining with third party items, we shall acquire joint ownership in the new product at the ratioof the objective value of the processed, mixed or combined items.
  3. Tools made available to the supplier as well as tools manufactured by the supplier on our behalf or ordered from a third party on our behalf shall remain in our property or shall become our property upon manufacturing or acquisition by the supplier, in each case provided that we have entirely or partially paid for the tools. All of the abovementioned tools must be clearly marked as our property.
  4. The supplier shall store our tools on our behalf free of charge and clearly separated from other items, insure them adequately in accordance with clause 7. The supplier shall use the tools exclusively for the purpose of manufacturing parts for us, unless otherwise agreed upon. We hereby already approve to the supplier’s use of our tools for the manufacturing of parts based on orders from other companies of the Freudenberg Group.
  5. The supplier shall ensure proper maintenance and repair of the tools provided at his own cost. Upon termination of this contract, the supplier shall return the tools without undue delay at our request, and without exercising any right of retention. At the time of their return, the tools must be in impeccable condition, taking into account their previous use. Costs of repair shall be borne by the supplier. The supplier is prohibited from scrapping the tools without our prior written approval.

Quality assurance

  1. The supplier shall maintain a quality management system throughout our business relations in line with standards DIN EN ISO 9000 ff., QS9000 (in any event at least ISO 9001), to monitor the system by internal audits in regular intervals and to promptly take action if any deviation is detected, in order to ensure flawless quality of all items supplied to us. We shall have the right to inspect the supplier’s quality assurance system anytime with prior notice. Upon request the supplier shall permit us to examine certification and audit reports as well as inspection procedures including all test records and documents relevant to the delivery.

Confidentiality and documents

  1. The supplier shall treat any information, formulas, drawings, models, tools, technical records, procedural methods, software and other technical and commercial knowhow made available by us or acquired through us, as well as any related work results (hereinafter “confidential information”) strictly confidential towards third parties. The supplier may only use the confidential information in its own business for purposes of performing deliveries to us and may only make it available to such persons who need to have access to it in connection with our business relation and are bound by a respective confidentiality obligation. This provision shall apply beyond the duration of our business relation if and to the extent the supplier is unable to prove that the confidential information was known to him or was in the public domain already at the time it was acquired or was later made public without the supplier’s fault.
  2. We retain title to any documents (e.g. drawings, figures, test specifications), samples, models etc. made available by us to the supplier in the course of the business relation, they shall be returned to us or destroyed at the supplier’s cost upon our request at any time, but no later than upon termination of the business relationship (including any copies, extracts and replicas). The supplier does not have any right of retention in relation to confidential information.
  3. The disclosure of confidential information shall not establish any industrial property rights, rights to knowhow or copyrights of the supplier and does not constitute a prior publication or right of prior use according to the applicable patent, design and utility model laws. Any kind of license is subject to a written agreement.

Applicable law and place of jurisdiction

  1. The business relationship with the supplier shall be exclusively governed by the laws of Germany, excluding its rules of private international law, the UN Convention on the International Sale of Goods (C.I.S.G.) and other bilateral or multilateral conventions on the harmonisation of law on the international sale of goods.
  2. For all claims resulting from our business relation with the supplier, in particular the contract or its validity, the exclusive place of jurisdiction shall be Weinheim/Bergstraße, Germany. This shall also apply to disputes concerning the formation and validity of a contractual relationship. We shall, however, also have the option to sue the supplier in any other general or special legal venue.
  3. If the supplier’s place of business is located outside of Germany, we shall be entitled to have all disputes arising out of, or in connection with our business relationship with the supplier, including disputes about the validity of contracts, finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law. The place of arbitration shall be Frankfurt a. M., Germany. Upon request, we shall exercise our right to choose arbitration before proceedings are initiated. The arbitration proceedings shall be conducted in German, unless the supplier requests them to be held in English.

This is a convenience translation of our German Conditions of Purchase (Allgemeine Einkaufsbedingungen). In case of discrepancies between the German and the English version, the German version shall prevail

Hemoteq AG
Adenauerstraße 15
52146 Würselen
Deutschland
Telefon: +49(0)2405-455000
Fax: +49(0)2405-455012
E-Mail: hemoteq(at)hemoteq.com

Sitz der Gesellschaft: Würselen, Deutschland.

Handelsregister Eintrag: Amtsgericht Aachen HRB 13990