General Terms and Conditions of Purchase of B&W PolyEngineering Türkheim GmbH

– As of November 2020 –

Section 1 Scope

1.1. These General Terms and Conditions of Purchase (GTC) apply to all contracts between B&W PolyEngineering Türkheim GmbH (“B&W PolyEngineering Türkheim GmbH”) and its suppliers (“Sellers”) who, at the time of concluding the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs within the meaning of § 14 BGB [German Civil Code]), regardless of whether the sellers are natural or legal persons or partnerships with legal capacity. The GTC apply in particular to contracts for the purchase and/or delivery of movable goods, regardless of whether the seller manufactures the delivery items itself or purchases them from suppliers. The General Terms and Conditions also apply to similar future contracts without B&W PolyEngineering Türkheim GmbH having to refer to them again in each individual case.

1.2. These Terms and Conditions apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Seller are hereby expressly rejected. This applies in particular even if B&W PolyEngineering Türkheim GmbH is aware of the Seller’s terms and conditions and/or B&W PolyEngineering Türkheim GmbH performs its services without reservation.

1.3. Individual agreements with the Seller shall always take precedence over these Terms and Conditions.

1.4. Oral assurances by B&W PolyEngineering Türkheim GmbH prior to conclusion of the contract are generally non-binding. For contracts concluded in writing or in text form, there is a presumption of correctness and completeness. Proof of individual agreements pursuant to clause 1.3 remains reserved.

Section 2 Orders and conclusion of contract

2.1. Enquiries by B&W PolyEngineering Türkheim GmbH are subject to change and non-binding. They shall become binding at the earliest upon written submission or confirmation. The Seller must point out obvious errors (e.g. typographical and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion prior to acceptance; otherwise, the contract shall be deemed not to have been concluded.

2.2. The Seller must accept and confirm orders from B&W PolyEngineering Türkheim GmbH within 14 days. The Seller must declare acceptance in writing or in text form (e.g. email) by means of an order confirmation. Acceptance may also be effected within this period by delivery of the ordered items; in this case, the delivery must be confirmed subsequently.

2.3. Late acceptance shall be deemed a new offer and requires acceptance by us.

Section 3 Product requirements / documentation / quality assurance

3.1. The Seller’s information on the subject matter of the delivery or service (in particular weights, dimensions, tolerances and technical data) as well as representations thereof by the Seller (e.g. drawings and illustrations) shall be decisive as quality characteristics, unless usability for the contractually intended purpose necessarily requires deviations. B&W PolyEngineering Türkheim GmbH must be informed of customary deviations and deviations due to legal requirements or technical improvements, as well as the replacement of components with equivalent parts. Such changes by the Seller are permitted only with the prior consent of B&W PolyEngineering Türkheim GmbH; otherwise, they constitute a material defect.

3.2. The Seller is obliged to provide all documentation for the product (in particular supplier declarations, movement certificates, manufacturer declarations of conformity (CE), etc.) with all required information, to sign it properly, and to provide it to B&W PolyEngineering Türkheim GmbH immediately and free of charge upon request. This also applies to documents required for the use, installation, assembly, processing, storage, operation, maintenance, inspection, servicing and repair of the delivered item.

3.3. The Seller maintains a certified quality management system in accordance with ISO 9001:2000 as a minimum requirement. If a Seller does not meet this minimum standard, it is obliged, upon request, to submit to B&W PolyEngineering Türkheim GmbH a schedule indicating when these minimum requirements will be met. The Seller shall inform Hofbauer immediately, if possible in advance, if a certificate is temporarily or permanently suspended. Upon request by B&W PolyEngineering Türkheim GmbH, the Seller shall send a copy of newly issued certificates. The documentation of the quality management system and the procedures developed by the Seller shall be made available to B&W PolyEngineering Türkheim GmbH upon request. Upon request, the Seller shall grant B&W PolyEngineering Türkheim GmbH the opportunity to conduct an audit with access to the measuring and testing facilities as well as all other relevant departments. Compliance with quality assurance measures does not give rise to any presumption that the Seller’s products and services correspond to the agreed or customary quality. In particular, B&W PolyEngineering Türkheim GmbH’s rights arising from liability for defects remain unaffected.

Section 4 Delivery time and delay in delivery

4.1. If a delivery period is not agreed individually, B&W PolyEngineering Türkheim GmbH shall specify it in the order. If no period is specified, the delivery period shall be four weeks from conclusion of the contract. As a rule, the decisive factor for compliance with the period is receipt of the goods by B&W PolyEngineering Türkheim GmbH. Notification of readiness for dispatch to B&W PolyEngineering Türkheim GmbH within the delivery period shall be deemed equivalent to compliance with the delivery period only if such notification was agreed in advance. If the Seller is likely to be unable to meet the agreed delivery time—regardless of fault—it is obliged to inform B&W PolyEngineering Türkheim GmbH immediately in text form of the delay and the expected next possible delivery date.

4.2. The Seller is entitled to make early deliveries only with the prior consent of B&W PolyEngineering Türkheim GmbH.

4.3. If the Seller does not perform, does not perform within the agreed delivery time, or is in default, the rights of B&W PolyEngineering Türkheim GmbH—especially the right to withdraw from the contract and to claim damages—shall be governed by the statutory provisions.

4.4. If the Seller is in default, B&W PolyEngineering Türkheim GmbH is entitled—alongside further statutory claims, in particular without prejudice to the provision in clause 3.3—to demand lump-sum compensation for delay damages. The lump sum amounts to 1% of the net price for each completed calendar week of delay, but no more than 5% of the net price of the goods delivered late in total. B&W PolyEngineering Türkheim GmbH reserves the right to prove higher damages. The Seller reserves the right to prove that no damage at all, or substantially less damage, has occurred.

Section 5 Delivery and performance

5.1. B&W PolyEngineering Türkheim GmbH is entitled to specify the shipping route and means, packaging, as well as freight forwarders, carriers or other persons designated to execute the shipment. If B&W PolyEngineering Türkheim GmbH does not provide specifications regarding the above delivery details, the Seller is free to choose.

5.2. The Seller is entitled to make partial deliveries only with the prior consent of B&W PolyEngineering Türkheim GmbH.

5.3. The Seller bears the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock on hand).

5.4. Delivery shall be made duty paid (DDP in accordance with INCOTERMS) to the place specified in the order. If no place of delivery is specified in the order, delivery shall be made in the same manner to the B&W PolyEngineering Türkheim GmbH plant that placed the order. If the ordering plant is not specified, delivery shall be made to the B&W PolyEngineering Türkheim GmbH plant in Planegg. The respective place of performance for the delivery is also the place of performance for any subsequent performance (obligation to deliver).

5.5. For each delivery, the Seller is obliged to prepare a delivery note stating the issue and dispatch date, the contents of the delivery (item number and quantity) and the order number, and to send it to B&W PolyEngineering Türkheim GmbH in text form. If the delivery note is missing or incomplete, B&W PolyEngineering Türkheim GmbH shall not be responsible for any resulting delays in processing and payment.

Section 6 Prices and payment terms

6.1. Prices are—unless otherwise stated or agreed—exclusive of statutory VAT and duty paid (DDP in accordance with INCOTERMS). Other services and ancillary services of the Seller as well as all incidental costs are included in the price unless otherwise agreed in individual cases.

6.2. Payment is due within 30 days of receipt of the invoice. If payment is made within 14 days, B&W PolyEngineering Türkheim GmbH is entitled to deduct a 3% cash discount from the net amount. In the case of bank transfer, payment is made in due time if the transfer order is received by B&W PolyEngineering Türkheim GmbH’s bank before the payment deadline expires; B&W PolyEngineering Türkheim GmbH is not responsible for delays caused by the banks involved in the payment process.

6.3. We do not owe any interest on maturity. The statutory provisions apply to default in payment.

6.4. B&W PolyEngineering Türkheim GmbH is entitled to rights of set-off and retention as well as the defence of non-performance to the extent permitted by law. In particular, B&W PolyEngineering Türkheim GmbH is entitled to withhold due payments as long as it still has claims against the Seller arising from incomplete or defective performance. Rights of set-off or retention on the part of the Seller exist only in the case of counterclaims that have been finally adjudicated or are undisputed.

Section 7 Transfer of risk, acceptance

7.1. The risk of accidental loss, accidental deterioration of the goods and the risk of delay shall pass—also in the event of shipment via a freight forwarder, carrier or other third party—only upon handover to B&W PolyEngineering Türkheim GmbH at the place of performance.

7.2. If acceptance is agreed, it shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply accordingly in the event of acceptance. Handover or acceptance shall be deemed to have taken place if B&W PolyEngineering Türkheim GmbH is in default of acceptance.

7.3. The statutory provisions apply to the occurrence of default of acceptance by B&W PolyEngineering Türkheim GmbH. However, to establish default, the Seller must expressly offer its performance to B&W PolyEngineering Türkheim GmbH even if a specific or determinable calendar time has been agreed for an act or cooperation by B&W PolyEngineering Türkheim GmbH (e.g. provision of documents or material).

7.4. If B&W PolyEngineering Türkheim GmbH is in default of acceptance, the Seller may claim reimbursement of its additional expenses in accordance with the statutory provisions (Section 304 BGB). If the contract concerns a non-fungible item to be manufactured by the Seller (custom-made item), the Seller shall have further rights only if B&W PolyEngineering Türkheim GmbH is obliged to cooperate and is responsible for the failure to cooperate.

Section 8 Documents / moulds / retention of title / confidentiality

8.1. B&W PolyEngineering Türkheim GmbH reserves ownership and copyright as well as exploitation and usage rights to product descriptions, drawings, illustrations, calculations, brochures, catalogues, cost estimates, other documents, as well as moulds, materials, substances, tools and other items provided to the Seller. Such documents shall be used exclusively for the contractual performance and shall be returned to B&W PolyEngineering Türkheim GmbH after completion of the contract. A transfer shall take place only insofar as this is expressly agreed.

8.2. Documents must be treated confidentially and may be reproduced or made accessible to third parties in fact or in content only with the prior consent of B&W PolyEngineering Türkheim GmbH. Upon request, these documents and any copies must be returned immediately if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. B&W PolyEngineering Türkheim GmbH shall treat the Seller’s documents accordingly; however, disclosure of the Seller’s documents to third parties, while passing on these obligations, is permitted if this is necessary to fulfil a service for customers of Hofbauer.

8.3. Documents and items that B&W PolyEngineering Türkheim GmbH has provided to the Seller must be stored safely and separately at the Seller’s expense. If they are no longer required, in particular after fulfilment or other termination of the contractual relationship, these documents and items must be returned to B&W PolyEngineering Türkheim GmbH immediately.

8.4. Any processing, mixing or combining (further processing) of provided items by the Seller shall be carried out for B&W PolyEngineering Türkheim GmbH. The same applies if B&W PolyEngineering Türkheim GmbH further processes the delivered goods, so that B&W PolyEngineering Türkheim GmbH shall be deemed the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.

8.5. Transfer of ownership of the goods to B&W PolyEngineering Türkheim GmbH must take place unconditionally and irrespective of payment of the price. However, if in individual cases B&W PolyEngineering Türkheim GmbH accepts an offer by the Seller to transfer ownership conditional upon payment of the purchase price, the Seller’s retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, B&W PolyEngineering Türkheim GmbH is also authorised to resell the goods before payment of the purchase price, with advance assignment of the resulting receivable (alternatively, the simple retention of title extended to resale shall apply). All other forms of retention of title are excluded, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.

Section 9 Defective delivery

9.1. The statutory provisions apply to the rights of B&W PolyEngineering Türkheim GmbH in the event of material and legal defects of the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating or user instructions) and in the event of other breaches of duty by the Seller, unless otherwise stipulated below.

9.2. In accordance with the statutory provisions, the Seller is liable in particular for ensuring that the goods have the agreed quality at the time the risk passes to B&W PolyEngineering Türkheim GmbH.

9.3. B&W PolyEngineering Türkheim GmbH is not obliged to inspect the goods or make special enquiries about any defects at the time of conclusion of the contract. Partly deviating from Section 442 (1) sentence 2 BGB, B&W PolyEngineering Türkheim GmbH is therefore entitled to defect claims without restriction even if the defect remained unknown to B&W PolyEngineering Türkheim GmbH at the time of conclusion of the contract due to gross negligence.

9.4. B&W PolyEngineering Türkheim GmbH’s commercial duty to inspect is limited to defects that become apparent upon incoming goods inspection under external examination, including the delivery documents (e.g. transport damage, incorrect and short delivery), or that are identifiable during B&W PolyEngineering Türkheim GmbH’s quality control on a sampling basis. If acceptance is agreed, there is no duty to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. B&W PolyEngineering Türkheim GmbH’s obligation to give notice of defects discovered later remains unaffected. Irrespective of B&W PolyEngineering Türkheim GmbH’s duty to inspect, a notice of defect shall in any case be deemed immediate and timely if it is sent by B&W PolyEngineering Türkheim GmbH to the Seller within 5 working days of discovery, or within 5 working days of delivery in the case of obvious defects. Otherwise, the statutory provisions apply to the commercial duty to inspect and give notice of defects (Sections 377, 381 HGB).

9.5. Subsequent performance also includes removal of the defective goods and reinstallation, provided that the goods were installed in or attached to another item in accordance with their nature and intended use; statutory claims of B&W PolyEngineering Türkheim GmbH for reimbursement of corresponding expenses remain unaffected. B&W PolyEngineering Türkheim GmbH shall not bear the expenses required for the purpose of inspection and subsequent performance even if it turns out that there was in fact no defect. Any liability for damages by B&W PolyEngineering Türkheim GmbH in the event of an unjustified request for defect remedy remains unaffected; in this respect, however, B&W PolyEngineering Türkheim GmbH shall be liable only if B&W PolyEngineering Türkheim GmbH recognised, or failed to recognise due to gross negligence, that there was no defect.

9.6. Without prejudice to B&W PolyEngineering Türkheim GmbH’s statutory rights and the provisions in clause 8.5, the following applies: If the Seller does not fulfil its obligation of subsequent performance—at B&W PolyEngineering Türkheim GmbH’s option by remedying the defect (repair) or by delivering a defect-free item (replacement delivery)—within a reasonable period set by B&W PolyEngineering Türkheim GmbH, B&W PolyEngineering Türkheim GmbH may remedy the defect itself and demand reimbursement from the Seller of the expenses required for this, or an appropriate advance payment. If subsequent performance by the Seller has failed or is unreasonable for B&W PolyEngineering Türkheim GmbH (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline needs to be set; B&W PolyEngineering Türkheim GmbH will inform the Seller of such circumstances immediately, if possible in advance.

9.7. Otherwise, in the event of a material or legal defect, B&W PolyEngineering Türkheim GmbH is entitled, in accordance with the statutory provisions, to reduce the purchase price or to withdraw from the contract. In addition, B&W PolyEngineering Türkheim GmbH is entitled to damages and reimbursement of expenses in accordance with the statutory provisions. In particular, there is no limitation to the type or scope of certain damages.

Section 10 Product liability

10.1. If the Seller is responsible for product damage, it shall indemnify B&W PolyEngineering Türkheim GmbH against third-party claims to the extent that the cause lies within its sphere of control and organisation and it is itself liable vis-à-vis third parties.

10.2. Within the scope of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 BGB that arise from or in connection with a claim by third parties, including recall actions carried out by B&W PolyEngineering Türkheim GmbH. B&W PolyEngineering Türkheim GmbH will inform the Seller—where possible and reasonable—about the content and scope of recall measures and give it the opportunity to comment. Further statutory claims remain unaffected.

10.3. The Seller shall take out and maintain product liability insurance with a flat coverage sum of at least EUR 5.0 million per personal injury/property damage.

Section 11 Limitation period

11.1. Subject to the provisions below, the statutory limitation provisions apply to claims of the contracting parties.

11.2. Deviating from Section 438 (1) no. 3 BGB, the general limitation period for defect claims is three years from the transfer of risk. If acceptance is agreed, the limitation period begins upon acceptance. The 3-year limitation period applies accordingly to claims arising from defects in title, whereby the statutory limitation period for in rem third-party surrender claims (Section 438 (1) no. 1 BGB) remains unaffected; moreover, claims arising from defects in title shall in no case become time-barred as long as the third party can still assert the right—especially due to the absence of limitation—against B&W PolyEngineering Türkheim GmbH.

11.3. The limitation periods under sales law, including the extension above, apply—within the statutory scope—to all contractual defect claims. If B&W PolyEngineering Türkheim GmbH is also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period applies (Sections 195, 199 BGB), unless the application of the limitation periods under sales law leads to a longer limitation period in the individual case.

Section 12 Applicable law, place of jurisdiction, severability clause

12.1. All legal relationships between the Seller and B&W PolyEngineering Türkheim GmbH shall be governed, in addition to these terms, by the law of the Federal Republic of Germany, excluding the conflict-of-law rules of private international law. The provisions of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) shall not apply.

12.2. If the Seller is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the location of the B&W PolyEngineering Türkheim GmbH plant in Planegg. However, in all cases Hofbauer is also entitled to bring an action at the Seller’s general place of jurisdiction. Mandatory statutory provisions, in particular on exclusive jurisdiction, remain unaffected.

12.3. Should any provision of these Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.