General Terms and Conditions of Purchase
Article 1 Scope
(1) The following conditions for the legal relationship between the supplier and Henze Boron Nitride Products (BNP) AG (hereinafter: Henze BNP) apply exclusively. Conditions of the supplier and deviating agreements only apply if Henze BNP has acknowledged them in writing. Neither the fact that Henze BNP does not expressly object to an agreement nor accept services or the payment thereof shall be deemed as their acknowledgment. This also applies if the supplier refers to his general terms and conditions in one of his letters and Henze BNP refers to such a letter, in which the terms and conditions are mentioned. Anything else only applies if Henze BNP expressly authorizes deviations from the following conditions in writing to the supplier. Otherwise, with the execution of the order the supplier expressly acknowledges these GTCP. These GTCP apply only if the seller is an entrepreneur (Article 14 BGB), a legal entity under public law or a special fund under public law.
(2) These GTCP also apply to future deliveries, services or offers to the supplier, even if they have not been separately agreed again. Decisive is the valid version of the GTCP at the time of the conclusion of the contract, which is available under http://www.henze-bnp.com/IT/Extras/Purchase.php.
(3) References to the validity of statutory provisions only have clarifying significance. Even without such clarification, the statutory provisions therefore apply unless they are directly amended or expressly excluded in these GTCP.
Article 2 Conclusion of the contract; Scope of the obligation to pay
(1) The contract language is German.
(2) The supplier shall ensure that all data, circumstances and conditions relevant to the fulfillment of his contractual obligations, as well as the intended purpose of his deliveries, are known to him in good time. Henze BNP commits itself, insofar as this data, circumstances, conditions, as well as the purpose of use are only known to Henze BNP, to pass on this information upon request of the supplier immediately. This also applies to the aforementioned information provided to Henze BNP by its customers. The supplier warrants that his deliveries include all services that are necessary for the correct and safe use, that they are suitable for the intended use and that they are state of the art. The same applies to their economic use. The supplier shall comply with all relevant standards, laws and regulations, in particular those relevant to environmental protection, hazardous materials, dangerous goods and accident prevention regulations, as well as the generally accepted safety and occupational medical regulations as well as company standards, drawings and other provided specifications. Upon request, the supplier shall inform Henze BNP about the required official approvals and reporting obligations, in particular for the import of the ordered goods.
(3) Henze BNP may, within the limits of reason and in agreement with the supplier, require changes in the delivery item in design and construction. We will make appropriate arrangements regarding the consequences in particular with regard to additional and reduced costs, as well as the delivery dates. Such a regulation shall be confirmed in writing.
Article 3 Prices; terms of payment
(1) The agreed prices are fixed prices. All prices include the statutory VAT, unless otherwise stated. Unless otherwise agreed, they are to be understood in each case as including all fees and price components (ancillary services and additional costs) such as e.g. shipping, packaging, conservation and intermediate storage until shipment, transport and liability insurance, assembly, and installation.
(2) Payment shall be made in good time if it has been received by the supplier, taking into account the customary bank transfer times. The deadline begins when Henze BNP has received the service as well as an invoice in accordance with the requirements of these conditions and the required test certificate. However, if premature deliveries are accepted, the deadline will begin at the earliest on the agreed delivery date.
(3) If Henze BNP is in default of payment, the supplier is entitled to charge annual default interest of 5% points above the respective base interest rate.
(4) Payments are always subject to invoice verification. Henze BNP makes cashless payments by bank transfer. In case of defective delivery, Henze BNP shall be entitled to withhold payment in proportion to the proper performance. Invoices are to be provided with the order, article, delivery note and supplier number and submitted in writing to Henze BNP together with the test certificate.
(5) Without the prior written consent of Henze BNP, the supplier shall not be entitled to assign or have third parties collect claims which he is entitled to against Henze BNP and which are not directed to the payment of a sum of money. The regulation of Article 354a HGB remains unaffected.
Article 4 Transfer of ownership
Upon receipt of the goods at Henze BNP and/or at the recipient named by Henze BNP, ownership of the goods passes to Henze BNP. The declaration of retention of title by the supplier, which goes beyond the simple retention of title, is expressly contradicted by Henze BNP. The ownership may - if at all only be reserved for goods delivered in the context of a simple reservation of title.
Article 5 Delivery times and delivery delays
(1) All delivery clauses are subject to the Incoterms valid at the time the contract was concluded (currently: Incoterms © 2010).
(2) Agreed dates and deadlines are binding and must be observed as fixed dates and/or fixed deadlines. Insofar as a delivery date can be determined by the calendar, this shall be deemed a fixed date with the resulting rights for Henze BNP. If the delivery date is referred to as a calendar week, the delivery is on time, if it has been carried out up to the last working day of the week in question. In particular, no further notice of default is required in this case.
(3) The receipt of the goods at Henze BNP or at the consignee designated by Henze BNP shall be decisive for compliance with the delivery date or the delivery deadline. The supplier must immediately notify Henze BNP of any recognizable delay in its performance, stating the reasons and the expected duration of the delay in writing. The supplier can only refer to causes of delay for which he is not responsible if he has fulfilled his obligation of notification.
(4) In case of default, Henze BNP shall be entitled to demand from the supplier a contractual penalty amounting to 2% of the total cost per started week, however, a maximum of 5% of the total expenditure. The supplier reserves the right to prove that no or only a significantly lesser degree of damage has occurred. The agreement of the contractual penalty or its assertion shall not affect the statutory claims for delay due to Henze BNP. Any penalties paid are to be offset against claims for damages and compensation. The contractual penalty can be enforced until full payment of the delayed delivered goods.
(5) Industrial disputes, unrest, official measures and other unforeseeable and unavoidable events exempt the supplier and Henze BNP from the obligation to perform for the duration of the disruption and to the extent of its effect. This also applies if these events occur at a time when the party concerned is in default. The affected party must immediately inform the other contracting party comprehensively and to the utmost extent to do everything possible to limit the impact of such events.
Article 6 Secrecy; documents
(1) The supplier shall not disclose the information provided by Henze BNP or otherwise known to it, such as drawings, documents, findings, samples, production equipment, models, data carriers, etc. to third parties (including subcontractors and subsuppliers) without the express written consent of Henze BNP and not for purposes other than those intended by Henze BNP, even after termination of the contract. The secrecy obligation shall only expire if and insofar as the know-how contained in the information has become generally known. This applies accordingly for duplicates. This obligation does not apply to information that was already known to the supplier upon receipt without any obligation to maintain secrecy, or that becomes legitimately known afterwards without any obligation to maintain secrecy, which - without breach of contract by one of the parties - is or becomes generally known and/or state of the art, or for which Henze BNP has granted express permission to use elsewhere. The supplier may not advertise the business relationship with Henze BNP without the express written consent of Henze BNP.
(2) If Henze BNP provides the supplier with documents and production equipment, such as tools or measuring equipment, the ownership is not transferred to the supplier. Duplication may only be made with the prior written consent of Henze BNP. All copies become the property of Henze BNP after their manufacture. It is hereby agreed between the supplier and Henze BNP that the supplier keeps the duplicates for Henze BNP. The supplier shall carefully store and maintain at his own expense the documents and production equipment and reproductions made available to him for copying, and to insure them against the usual risks (such as theft, destruction, water, fire) and, at Henze BNP's request, to surrender them at any time. A right of retention, for whatever reason, is not given. Provided documents and production equipment as well as duplicates thereof may not be made accessible to third parties and not used for other than the contractually agreed purposes, in particular the fulfillment of the order. Insofar as they have to be made available to subcontractors for the performance of services, they must correspondingly agree to observe secrecy in writing. The drawings and other documents produced by Henze BNP remain the property of Henze BNP and may only be passed on after prior written permission by Henze BNP and only for technical reasons.
(3) For each case of infringement of the obligations in Article 6 (1) and (2), the supplier shall immediately pay a contractual penalty of up to EUR 10,000.00. The supplier is at liberty to clarify the appropriateness of the contractual penalty. Contractual penalties which have been paid already are to be offset against any claims for damages.
Article 7 Extent of warranty; exercise of warranty rights
(1) The warranty obligations of the supplier shall be governed by the statutory provisions, unless otherwise stated in these General Terms and Conditions of Purchase.
(2) According to the statutory provisions, the seller shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to Henze BNP. In any case, the product specifications (including chemical and mechanical values as well as specifications from factory and test certificates) which are the subject of the contract in question, or referred to in the order of Henze BNP, or in the same way as these GTCP, were included in the contract or provided by the seller before or after conclusion of the contract, shall apply. It makes no difference whether the product description comes from Henze BNP, the seller or the manufacturer.
(3) The supplier warrants that its deliveries and services do not infringe any industrial property rights (for example, patents or utility models or copyrights) in the Federal Republic of Germany and in countries referred to by Henze BNP in which Henze BNP resells the goods. The supplier is liable for damages that Henze BNP and its customers incur due to the violation of such rights. At the first request, he has to indemnify Henze BNP and its customers against claims by third parties regarding the infringement of such property rights as well as any expenses incurred, e.g. legal costs in connection with this claim.
(4) The supplier must constantly monitor the quality of his deliveries and services. For this purpose, he will set up and maintain a quality assurance system. The supplier grants Henze BNP access at all times to check compliance with the quality assurance system.
(5) Henze BNP is in any case entitled to and has the right to choose the type of supplementary performance, i.e. repair or delivery of faultless goods,. If the operational safety is endangered or if there is a risk of unusually high damages, Henze BNP may carry out the repair itself or have it carried out by a third party, if the supplier fails to comply with the request for repair by Henze BNP within a short period of time, after informing the supplier. Resulting costs are borne by the supplier. Subsequent improvement and subsequent delivery are carried out free of charge to the place of use. The supplier shall bear all costs incurred in connection with the repair and subsequent delivery. If, due to culpably incorrect delivery, a partial or 100% inspection of the deliveries is required, the supplier will bear the costs incurred, insofar as these are not the costs of the inspection in terms of Article 377 HGB. Otherwise, the supplier is liable for all damages to Henze BNP due to faulty deliveries, whether direct or indirect, including consequential damage. If the supplier makes use of the provision of services by third parties, he is liable for these as well as those of vicarious agents.
(6) Insofar as Henze BNP has promised its customer a customary contractual penalty in accordance with good commercial practice and the latter asserts the claim for a contractual penalty from Henze BNP, the supplier will accept the contractual penalty in the context of compensation or indemnify Henze BNP insofar as the contractual penalty has been triggered by the action of the supplier.
(7) The limitation period for claims and rights of Henze BNP against the supplier is based solely on the statutory provisions. The provisions for the beginning of the limitation period, the suspension of proceedings, the inhibition and the new start of time limits remain unaffected. In the event of subsequent improvement or subsequent delivery, the respective statutory warranty periods begin again upon successful completion of the subsequent improvement or subsequent delivery.
(8) The statutory provisions shall apply to the commercial duty to inspect and to give notice of defects: Henze BNP's duty to inspect is limited to defects which are openly revealed during inspection of incoming goods by Henze BNP, including the delivery documents (e.g. transport damage, incorrect and short deliveries) or are recognizable in the quality control of Henze BNP during the sampling procedure. Insofar as acceptance has been agreed, there is no obligation to investigate. The obligation to object to defects discovered later on remains unaffected. Insofar as products are delivered that require further work or assembly, the defect or quality control period shall not commence until completion of the preliminary work or completion of the assembly work. Without prejudice to the obligation to inspect, the complaint (notice of defect) shall in any case be deemed prompt and timely if it is sent within 5 working days from discovery or, in the case of obvious defects, from delivery. In the justified case of complaint, the supplier may be charged with the costs of the inspection and the replacement delivery. If a defect becomes apparent only later on, even if it is installed or attached by a later purchaser, Henze BNP shall inform the supplier of the lack of notification of the defect within 5 working days after Henze BNP has been notified of the defect.
(9) The supplier shall be liable for any form of negligence, even if it is attributable to the actions of a third party (e.g. a vicarious agent or an agency).
Article 8 Product liability, indemnification, liability Insurance
(1) As far as the supplier is responsible for product damage, he is obliged to indemnify Henze BNP from claims for damages from third parties upon first request insofar as the cause lies in his domain of control and organization and he himself is liable in an external relationship.
(2) In the context of its own liability for claims in the sense of paragraph 1, the supplier is also obliged to reimburse any expenses in accordance with Articles 683, 670 BGB or Articles 830, 840, 426 BGB to Henze BNP in the context of a recall action lawfully carried out by Henze BNP. As far as possible and reasonable, Henze BNP will inform the supplier in advance about the content and scope of such a recall in good time and give it an opportunity to comment.
(3) Any information required by the respective competent authority in accordance with the provisions of the ProdSG shall be provided by the supplier in consultation with Henze BNP.
(4) The supplier undertakes to provide product liability insurance with adequate cover per personal injury/-property damage during the term of this contract, i.e. to maintain this until the respective expiry of the defect limitation period; if Henze BNP is entitled to further claims for damages, these remain unaffected. The fixation of the appropriate cover sums is to be carried out specific to the product and industry, taking into account the adequacy of the prescribed damage.
Article 9 Choice of law, place of performance, place of jurisdiction and text in other languages is for information purposes only
(1) If the supplier is a merchant, a legal entity under public law or a special fund under public law, the headquarters of Henze BNP shall be the exclusive place of jurisdiction, also for international purposes. The same applies if the buyer is an entrepreneur within the meaning of Article 14 BGB. However, Henze BNP is also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCP or an individual priority agreement or at the general place of jurisdiction of the supplier. Priority laws, especially in the case of exclusive jurisdictions, remain unaffected.
(2) The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws which rule private international law.
(3) This text is subject to German law and should be interpreted in accordance with German legal understanding. Other language versions are for information purposes only and are not part of the legal transaction. In the case of deviations between the German and other language versions, therefore, only the German version applies.
Article 10 Miscellaneous
(1) If a contracting party ceases payments or if insolvency proceedings are instituted against its assets or a court or out-of-court settlement procedure, the other contracting party shall be entitled to withdraw from the unfulfilled part of the contract.
(2) All declarations and notices submitted for the purpose of amending this contract or under this contract, unless otherwise stipulated, must be in writing.
(3) Should a provision be or become ineffective, this shall not affect the validity of the remaining provisions. In the case of an ineffective provision, the parties are obliged to negotiate an effective substitute for the invalid provision that comes closest to the economic purpose pursued by the contracting parties.
(4) Henze BNP points out that personal data are stored in compliance with statutory provisions and processed in connection with business transactions.
Lauben, March 2019