General Conditions of Purchase
Heidelberg Engineering GmbH

(Updated on 31/01/201)

1. Validity

1.1 All goods and services we receive are subject to these General Terms and Conditions.

1.2 These General Conditions apply exclusively. Deviating, contradictory or supplementary terms and conditions from the Supplier will not take contractual effect unless we have expressly agreed to their validity in writing. This requirement applies, for example, even if we unconditionally accept the Supplier’s deliveries while being aware of its terms and conditions.

1.3 Separate individual agreements entered into with the Supplier, including collateral agreements, supplements and amendments thereto, always take precedence over these General Terms and Conditions. The validity of such agreements and their content are subject to a written contract or our written confirmation.

2. Orders and confirmations

2.1 Our orders will not be considered binding prior to their written submission or confirmation. To allow for corrections and/or proper completion before accepting affected orders, the Supplier shall inform us of any obvious errors, such as spelling mistakes, miscalculations, or omissions (including on order forms). Otherwise, the contract in question will be considered invalid.

2.2 Each order will be considered accepted if the Supplier does not reject it within two weeks of its submission. The orders we submit will determine their respective scope (incl. equipment) even if they are not countersigned by the Supplier. Amendments are valid only if agreed to mutually and in writing.

2.3 The Supplier shall confirm each order without modification and return it to us in the form of an order confirmation. We reserve the right to cancel a placed order if we do not receive the corresponding unmodified order confirmation within two weeks of the order date.

2.4 The Supplier shall notify us in writing of any technical changes made to previous deliveries, bid and catalog data, drafts, or specifications before accepting new related orders. In the event of significant technical changes, we reserve the right to refrain from entering into a contract, or – if the Supplier fails to give timely notice – to withdraw from the contract in question.

2.5 For the interpretation of trade terms, the version of INCOTERMS valid at the time of a given contract’s conclusion applies.

3. Prices, invoices and payment

3.1 The agreed upon prices are to be understood as net prices that include all expenses incurred in connection with the deliveries and services to be provided by the Supplier, as well as the applicable sales tax and free delivery to the agreed upon destination (along with packaging and freight costs). Complaints concerning price increases are valid only with our written consent. Any delivery of excess or insufficient quantities will only be considered contractually valid if confirmed in writing.

3.2 If we have not entered into any individual payment agreements with the Supplier, then the agreed upon prices shall, at our discretion, be net payable within 45 days or with a 3% discount within 14 days of their coming due (following our receipt of a proper invoice and the delivery or service in question in its entirety). No payment period will commence until a correct and complete invoice is received on the goods/services in question.

3.3 Insofar as the Supplier is required to provide documents concerning material testing, inspection reports, quality assurance, or other information, these documents will be considered necessary to the full provision of the goods and/or services in question. The Supplier shall complete, sign, and submit any proof of origin we require no later than its issue of corresponding invoices. The same applies to VAT certificates on international and intra-community goods or services.

3.4 An invoice shall not combine multiple orders and must include our order and item number.

3.5 Discounts are also permissible if we justify the offset or withhold payments to a reasonable extent due to defects; in such cases, the payment period will start only after said defects are fully remedied. Payments do not signify acceptance of deliveries or services according to the contract in question.

3.6 We will not be made liable for any default interest. The annual interest rate is five percentage points above the base rate. While the statutory provisions apply to any delays on our part, a written notice from the seller in question is nonetheless required in every case (even if this deviates from said provisions).

3.7 We reserve the right to make agreed upon payments conditional on the provision of a directly enforceable bank guarantee beyond the deposit amount.

3.8 We are entitled to offset any amounts payable pertaining to a given order with any and all amounts receivable by us or any domestic companies with which we are affiliated within the meaning of the applicable corporate laws. The Supplier can obtain a list of these companies upon request.

3.9 The Supplier has set-off or retention rights only in cases involving legally established or undisputed counterclaims.

4. Deadlines and schedule overruns

4.1 The delivery and performance deadlines specified in each order are binding. The timeliness of deliveries or remedies depends on when they are received at the location we specify; in cases involving services or goods that require installation and/or assembly, timeliness depends on when we accept them as received. If a deadline is missed, the Supplier will be considered in default even without corresponding notice.

4.2 If a time of delivery is neither indicated in a given order nor otherwise agreed to, delivery will be expected within two weeks of the corresponding contract’s conclusion.

4.3 Upon noticing any delay in delivery or performance, the Supplier shall inform us immediately in writing of the reason for and duration of the delay and to solicit our response. As compensation for any delay, we reserve the right to demand that the Supplier choose the fastest possible method of delivery without any surcharge. After a reasonable grace period determined at our discretion, we are entitled to withdraw from the contract in question or, should the Supplier be responsible for the delay, to claim damages. This does not affect any further claims to which we are entitled.

4.4 If an agreed upon period is exceeded due to reasons for which the Supplier is responsible, we are entitled to a penalty amounting to 0.3% of the value of the order or request at hand for each business day of delay (up to a maximum of 5% of said value in total). This does not affect any further claims to which we are entitled. If we accept the delayed service, we will claim the contractual penalty along with the final payment at the latest.

5. Delivery, shipping and packaging

5.1 Deliveries shall be made at the Supplier’s expense to the delivery locations we specify. Any agreement on pricing ex factory or ex warehouse (of the Supplier) shall be shipped at the lowest possible cost unless we have specified a particular mode of transport. We also reserve the right to determine the mode of transport when a given price is quoted as including free shipping. The Supplier is required to pay the additional cost of any express shipping that may be required to comply with a given delivery date.

5.2 Each shipment must be immediately reported to us twice. The delivery note and packing slip must bear our order and item number and the internal order number, as well as the weight and type of packaging. We are entitled to reject deliveries that are not carried out/labeled properly at the expense of the Supplier.

5.3 Deliveries only take place from Monday to Friday (except on public holidays and days when the business is closed) from 8 am to 4 pm.

5.4 Costs of packaging shall be borne by the Supplier. We are responsible for disposal of packaging.

5.5 The Supplier shall package all goods in a manner that prevents possible transport damage. If packaging is billed separately due to an individual agreement, then the costs thereof shall be listed separately in the corresponding offer and invoice. The calculation shall be carried out at cost prices.

6. Transfer of risk and ownership

6.1 The risk of accidental loss and accidental degradation of goods shall be borne by the Supplier until its deliveries are received at our specified delivery point. For services and deliveries involving installation and/or assembly, this risk is transferred upon acceptance. If a delivery is returned due to a warranty claim, then the risk is transferred back to the Supplier when loading is completed. The same applies to transfer and acceptance if we are in default of acceptance.

6.2 Ownership is transferred when unloading is completed at the place of receipt and the packing slip is handed over to us.

6.3 Concerning the point of time at which we can be considered in default of acceptance, the statutory provisions apply. However, the Supplier must then also present us with a specific offer of services if any action or involvement on our part (such as the provision of material) has been or may yet be agreed upon for a particular date. If we are in default of acceptance, then the Supplier may, pursuant to the applicable statutory provisions, require reimbursement of its resulting additional expenses (see § 304 of the German Civil Code, BGB). If a given contract concerns non-fungible goods that are to be produced by the Supplier (through custom production), then the Supplier is only entitled to further rights if we are obligated to participate and are responsible for any failure to do so.

7. Pre- and post-delivery inspection, notice period

7.1 We will fulfill our inspection obligation immediately after receiving any deliveries.

7.2 Our inspection obligation is limited to defects that become visually evident during our incoming goods inspection (including on shipping documents) or our quality control efforts in random sampling tests, such as transport damage, incorrect deliveries, or insufficient quantities. We shall immediately notify the Supplier of such instantly identifiable defects. We shall also give notice of hidden defects within 14 days of their discovery.

7.3 We have no further obligations to the Supplier other than the aforementioned inspections and notifications. The obligation to inspect does not apply if acceptance has been agreed upon.

8. Liability for defects

8.1 The Supplier shall guarantee that its deliveries/performance are free of defects, fit for the agreed upon purpose, of the agreed upon quality, and in correspondence with all the guarantees made in each respective order. In every case, product descriptions – which constitute part of contracts that involve the respective products (in particular when they are named or otherwise referenced in our orders) or are incorporated into said contracts in the same manner as these General Terms and Conditions – are to be considered agreements on the quality of the products in question. Whether a product description originates from us, the Supplier, or the manufacturer is immaterial.

8.2 Regarding parts subject to regular wear and tear, the Supplier shall guarantee that such parts will be free of defects for the usual number of operational hours at minimum, or at least 18 months (durability guarantee). The Supplier shall guarantee that its deliveries/performance comply with the applicable standard practices and the rules and guidelines set forth by law, regulatory authorities, and professional associations with respect to design, accident prevention and environmental protection, and that it has successfully passed all the environmental impact assessments prescribed for the product category in question.

8.3 Unless the law provides for longer terms, the warranty period for material defects is 24 months from acceptance of the work performed or the entirety of the system received by our customers, but not more than 36 months from the transfer of risk.

8.4 If the Supplier is obliged to remedy a defect and does so with the knowledge of said obligation, the warranty period on the newly delivered part(s) and remedial work is then 24 months from the delivery or installation of the replacement part(s) or the completion of remedial work.

8.5 The warranty period will be extended by any length of downtime caused by defects and/or remedial work by the Supplier.

8.6 A 36-month statute of limitations applies to any claims made due to legal defects, whereby the statute of limitations for claims of restitution made by third parties (§ 438, para. 1, no. 1 of the German Civil Code) remains unaffected. Claims due to legal defects will not become statute-barred in any case as long as the third party in question has the right, particularly without any statute of limitation, to file a claim against us.

8.7 The German Civil Code (§ 442, para. 1, sentence 2) notwithstanding, we are entitled to unrestricted warranty claims if a given defect remained unknown to us upon conclusion of the respective contract as a result of gross negligence.

8.8 If defects are found before or during the risk transfer or the warranty provided for in sections 8.2 to 8.6, we may, at our discretion, demand delivery of a defect-free item from the Supplier (replacement) or remedy of the defect (improvement) within a reasonable time period. This also applies to deliveries whose inspection was limited to random sampling. Any costs or expenses resulting from the remedy (incl. from adding/removing parts from our products, hiring necessary technicians or assistants and their travel expenses, and transport and disposal) shall be borne by the Supplier. The Supplier shall bear the cost and risk involved in the return of defective deliveries.

8.9 The costs incurred by the Supplier for inspection and remedies, including any removal and installation costs, shall be borne by the Supplier even if it turns out that there was actually no defect. Our liability for unjustified requests for remedy of defects remains unaffected. In this regard, we shall be liable only if we had already recognized, or failed to recognize due to gross negligence, that there was no defect.

8.10 If the Supplier fails to fulfill its remedial obligations – according to our preference for elimination of the defect (improvement) or delivery of a defect-free item (replacement delivery) – within a reasonable time period of our choosing, we are entitled to remedy the defect ourselves and demand from the Supplier reimbursement of the resulting expenses or an appropriate advance. If a remedy performed by the Supplier fails or is acceptable in our view due, for example, to extreme urgency, a potential risk to operational reliability or imminent excessive damage, no deadline is required. We shall inform the seller immediately (or in advance, if possible) of any such conditions. The substitute performance does not affect the warranty obligations of the Supplier.

8.11 If the substitute performance is not successful, not possible, or not reasonable or the remedy by the Supplier fails or goes into default, then we may choose to withdraw from the contract or reduce the delivery price in question. This does not affect any further legal claims, including those concerning non-compliance with assumed warranties or damages.

9. Spare parts

The Supplier shall guarantee the availability of all structural components and spare parts essential to the functionality of each delivery/service for a period of 15 years from delivery. If the Supplier breaches this obligation, we are entitled to reproduce any component no longer available at the Supplier’s expense or to obtain it from another source. The Supplier shall be obligated to help us in any way, such as by providing manufacturing plans or obtaining any necessary property rights.

10. Supplier recourse

10.1 In addition to any warranty claims, we are entitled without restriction to our rights of recourse in a given supply chain as stipulated by law (pursuant to §§ 478, 479 of the German Civil Code). In particular, we are entitled to demand exactly the type of remedy (improvement or replacement) from the Supplier that we owe to our customers in each individual case. This does not restrict the right of choice we are afforded by law (§ 439, para. 1 of the German Civil Code).

10.2 Before we accept or fulfill a defect claim made by one of our customers (including reimbursement of expenses pursuant to § 478, para. 3 and § 439, para. 2 of the German Civil Code), we shall notify the Supplier, provide a brief account of the situation, and request a written response. If this response is not received within a reasonable time frame and no amicable solution is found, the defect claim actually granted by us shall be deemed owed to our client. In such cases, the Supplier shall be responsible for providing proof to the contrary.

10.3 Our claims for Supplier recourse also apply if the goods in question were further processed by us or one of our clients prior to their sale, such as through their incorporation into another product.

11. Product liability

11.1 The Supplier shall indemnify us for claims for damages filed against us due to a product defect for which the Supplier is responsible, whose cause is within the Supplier’s domain and organization, or for which the Supplier is liable in its other external business relationships. The Supplier shall further produce proof of sufficient product liability insurance if requested.

11.2 If the Supplier fails to produce said proof or refuses a reasonable increase we suggest in its product liability insurance, we are entitled to withdraw from the contract and be compensated for damages.

11.3 As part of its indemnification obligations, the Supplier shall reimburse any expenses pursuant to §§ 683 and 670 of the German Civil Code that arise from or in connection with any recourse taken by third parties, including recall campaigns carried out by us. Insofar as doing so is possible and reasonable, we shall inform the Supplier of the nature and scope of any recall measures and afford it the opportunity to comment. This does not affect any further statutory claims.

12. Industrial property rights

12.1 The Supplier shall guarantee that its contractually agreed-upon deliveries and the use of the goods in question are not in conflict with any industrial property rights, including copyrights. In the event of any infringement on the rights of any third party, we are entitled to withdraw from the contract in question and the Supplier shall be obligated to pay corresponding damages (incl. legal defense and court costs). The Supplier shall indemnify us against all claims by the holders of the respective property rights. To the extent that it is possible and reasonable, we may require the Supplier of the delivered item to modify it in a manner acceptable to us in order to address the infringement in question. We are also entitled, at the expense of the Supplier, to acquire all necessary rights.

12.2 Any and all documentation issued to the Supplier in connection with the preparation and performance of a given order – along with any technical documents, tools, drawings, standard sheets, calculations, and similar materials originating from us – constitute our intellectual property and are subject to our corresponding rights. Insofar as it is necessary for the execution of a given contract, we shall grant the Supplier rights that are non-exclusive, non-transferable, limited to Germany, and limited to the order in question to allow it to use our intellectual property. These rights will then expire with the contractual relationship in question. The technical documentation, tools, standard sheets, means of production, and similar materials we provide remain our exclusive property.

13. Drawings, documents, confidentiality

13.1 The Supplier undertakes to treat in confidence vis-à-vis third parties any confidential information owned by us which the Supplier may become aware of in relation to this contract—including in particular technical and financial information relating to our business operations, drawings, standard sheets, templates, gauges, models, shapes, patterns, profiles, constructions, tools and any further documents provided by us for the preparation and execution of the order and the expertise embodied therein in the form of intentions, experience and knowledge—to refrain from making such accessible to third parties, to
protect such against third party access and to refrain from using such for third parties in relation to its own work or in relation to contracted research.

13.2 This obligation shall not apply to information that was demonstrably known to the Supplier prior to entry into the contract, was demonstrably compiled by the Supplier in an independent manner or was otherwise lawfully obtained or that has become generally known other than through a breach of a duty of confidentiality or this contract or may hereafter become generally known other than through a breach of this contract.

13.3 The confidential documentation referred to shall be maintained with care, safely stored and insured against damage and loss by the Supplier at its own expense. Any repairs or amendments shall require our express prior written approval.

13.4 The Supplier shall take appropriate steps to ensure that the employees, independent contractors and subcontractors duly involved by the Supplier in the performance of a contract comply with the above requirement of confidentiality. Upon request by us, the Supplier shall furnish written proof of such measures.

13.5 The Supplier shall only be entitled to disclose its activities for us to a third party with our prior written approval.

13.6 Upon termination of the contract, the Supplier shall return to us, destroy or delete all documents, papers and other carrier media that the Supplier has received from us in relation to this contract. Any files or copies created or other embodiments shall likewise be returned or otherwise destroyed promptly.

13.7 We reserve all rights concerning drawings and products created based on our specifications. The ownership of tools and other means of production paid for by us passes from the Supplier to us upon our payment.

14. Assignment of claims

The assignment of payment claims pertaining to these General Terms and Conditions requires our express prior written consent.

15. Place of performance

The place of performance for deliveries and services is the point of destination specified in each individual case; for payments, it is our headquarters.

16. Subcontractors, data storage, confidentiality, import and export restrictions

16.1 The use of subcontractors or Suppliers requires our express prior written consent. Our consent in such cases does not affect the Supplier’s liability obligations.

16.2 We store the information necessary for digital order processing. By accepting a given order, the Supplier consents to said storage.

16.3 The Supplier shall maintain the confidentiality of a given contract’s conclusion and may only use a contract as a reference order with our express prior written consent.

16.4 The Supplier shall inform us immediately if any of its deliveries or services is subject, either wholly or in part, to import or export restrictions under German or any other law.

17. Written clause

Legally relevant declarations and notifications that the Supplier is required to deliver to us after a given contract is concluded (e.g. set deadlines, declarations of withdrawal) are only valid in writing.

18. Place of jurisdiction, applicable law

18.1 The exclusive place of jurisdiction for all legal disputes is Heidelberg, Germany.

18.2 These General Terms and Conditions are subject to the laws of the Federal Republic of Germany, with the exception of the rules of private international law (IPR). The provisions of the UN Convention of April 11, 1980 on the International Sale of Goods (CISG/CISG) are expressly excluded.

18.3 Dispute resolution procedure by a consumer arbitration body: We are neither willing nor obliged to participate in dispute settlement procedures conducted by a consumer arbitration board.

19. Severability clause

If any provision of these General Terms and Conditions are or become invalid, all other provisions shall remain unaffected. In such cases, we will come to a mutual agreement with the Supplier on the addition of a provision that is designed to achieve the business purpose of the invalid provision to the greatest extent possible within the letter of the law.