General Terms and Conditions of Purchase National of ONgineer GmbH

(Status August 2013)

• 1 General – Scope of Application

1. Our Terms and Conditions of Purchase shall apply exclusively; we do not recognise any terms and conditions of the supplier that conflict with or deviate from our Terms and Conditions of Purchase, unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Purchase shall also apply if we accept the supplier’s delivery without reservation in the knowledge that the supplier’s terms and conditions conflict with or deviate from our Terms and Conditions of Purchase. These Terms and Conditions of Purchase are an integral part of all contracts which we conclude with our suppliers for the deliveries or services offered by them. They shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.
2. All agreements made between us and the supplier for the purpose of executing this contract must be set out in writing in this contract.
3. Our Terms and Conditions of Purchase shall only apply to entrepreneurs pursuant to Section 310 (1) of the German Civil Code (BGB).

• 2 Offer – Offer Documents

1. Acceptance of our order can only be made within a period of 2 weeks, after which we have the right to choose whether we wish to maintain the order. The receipt of the declaration of acceptance by us shall be decisive for timely acceptance.
2. We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our express written consent. They are to be used exclusively for production on the basis of our order; after completion of the order they are to be returned to us without being requested to do so. They must be kept secret from third parties; in this respect the provision of § 9 paragraph (5) shall apply in addition.
3. We are entitled to terminate the contract at any time by written declaration stating the reason if we can no longer use the ordered products in our business operations due to circumstances occurring after conclusion of the contract. In this case, we shall compensate the supplier for the partial performance rendered by him.

• 3 Prices – Terms of Payment – Invoice Details

1. The price stated in the order is binding. Unless otherwise agreed in writing, the price includes delivery “free domicile”, including packaging. Upon our request, the supplier shall take back the packaging at his own expense.
2. The purchase price is net plus the applicable value added tax at the statutory rate.
3. We can only process invoices if these – in accordance with the specifications in our order – state the order number shown there; the supplier is responsible for all consequences arising from non-compliance with this obligation, unless he can prove that he is not responsible for them.
4. Unless otherwise agreed in writing, we shall pay the purchase price within 14 days, calculated from delivery and receipt of the invoice, with a 2% discount or net within 30 days of receipt of the invoice.
5. We shall be entitled to rights of set-off and retention to the extent provided by law.

• 4 Delivery time – Delivery

1. The delivery time stated in the order is binding.
2. The supplier is obliged to inform us immediately in writing if circumstances occur or become apparent to him which indicate that the stipulated delivery time cannot be met.
3. In the event of a delay in delivery, we shall be entitled to the statutory claims. In particular, we shall be entitled to demand damages in lieu of performance and rescission after the fruitless expiry of a reasonable period. If we demand damages, the supplier shall be entitled to prove to us that he is not responsible for the breach of duty.

• 5 Transfer of risk – documents

1. Unless otherwise agreed in writing, delivery shall be made free domicile. Even if shipment has been agreed, the risk shall not pass to us until the goods have been handed over to us at the agreed destination.
2. The supplier is obliged to state our order number exactly on all shipping documents and delivery notes; if he fails to do so, we shall not be responsible for any delays in processing resulting therefrom.

• 6  Examination for defects – liability for defects

1. We are obliged to inspect the goods for any deviations in quality and quantity within a reasonable period of time; the notice of defect shall be deemed to be in time if it is received by the supplier within a period of 14 working days, calculated from receipt of the goods or, in the case of hidden defects, from discovery.
2. We shall be entitled to the statutory claims for defects in full; in any case, we shall be entitled to demand that the supplier, at our discretion, either rectify the defect or deliver a new item. We expressly reserve the right to claim damages, in particular damages in lieu of performance.
3. The limitation period is 36 months, calculated from the transfer of risk, unless the mandatory provisions of §§ 478, 479 BGB (German Civil Code) apply.
4. We do not waive warranty claims by accepting or approving samples or specimens submitted.
5. Upon receipt of our written notice of defects by the supplier, the limitation period for warranty claims shall be suspended. In the event of replacement delivery and rectification of defects, the warranty period for replaced and rectified parts shall start anew, unless we had to assume from the supplier’s conduct that the supplier did not consider itself obliged to undertake the measure, but only undertook the replacement delivery or rectification of defects as a gesture of goodwill or for similar reasons.

• 7 Product liability – indemnification – liability insurance cover

1. Insofar as the supplier is responsible for product damage, he shall be obliged to indemnify us on first demand against claims for damages by third parties on account of personal injury or damage to property insofar as the cause lies within his sphere of control and organisation and he himself is liable in relation to third parties.
2. Within the scope of its liability for cases of damage within the meaning of paragraph (1), the supplier shall also be obliged to reimburse any expenses pursuant to Sections 683, 670 BGB or pursuant to Sections 830, 840, 426 BGB which result from or in connection with a recall action carried out by us. We shall inform the supplier about the content and scope of the recall measures to be carried out – as far as possible and reasonable – and give him the opportunity to comment. Other legal claims shall remain unaffected.
3. The supplier undertakes to maintain a product liability insurance with an insured sum of € 10 million per personal injury/property damage – lump sum; if we are entitled to further claims for damages, these shall remain unaffected. The supplier shall send us a copy of the liability policy at any time upon request.

• 8 Industrial property rights

1. The supplier warrants that no third party rights are infringed in connection with his delivery in countries of the European Union, North America or other countries in which he manufactures the products or has them manufactured.
2. If claims are asserted against us by a third party for this reason, the supplier shall be obliged to indemnify us against these claims upon first written request; we shall not be entitled to make any agreements with the third party – without the supplier’s consent – in particular to conclude a settlement.
3. The supplier’s indemnification obligation relates to all expenses necessarily incurred by us from or in connection with the claim by a third party.
4. The period of limitation is 36 months, calculated from the transfer of risk.

• 9 Retention of title – Provision – Tools – Confidentiality

1. Insofar as we provide parts to the supplier, we shall retain title thereto. Processing or transformation by the supplier shall be carried out for us. If our goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item (purchase price plus VAT) to the other processed items at the time of processing. The disposal of provided parts is not permitted without our prior consent.
2. If the item provided by us is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the item subject to retention of title (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier’s item is to be regarded as the main item, it shall be deemed agreed that the supplier transfers co-ownership to us on a pro rata basis; the supplier shall keep the sole ownership or the co-ownership for us.
3. We retain ownership of tools; the supplier is further obliged to use the tools exclusively for the manufacture of the goods ordered by us. The supplier is obliged to insure the tools belonging to us at replacement value against fire, water and theft damage at his own expense. At the same time, the supplier hereby assigns to us all claims for compensation arising from this insurance; we hereby accept the assignment. The supplier is obliged to carry out any necessary maintenance and inspection work on our tools as well as all maintenance and repair work at his own expense and in good time. He shall notify us immediately of any malfunctions; if he culpably fails to do so, claims for damages shall remain unaffected. The supplier shall have no right of retention to tools provided by us, irrespective of the legal grounds.
4. Insofar as the security interests to which we are entitled pursuant to para. (1) and/or para. (2) exceed the purchase price of all our reserved goods not yet paid for by more than 10%, we shall be obliged to release the security interests at our discretion at the request of the suppliers.
5. The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. They may only be disclosed to third parties with our express consent. The obligation to maintain secrecy shall also apply after the execution of this contract; it shall expire if and to the extent that the production knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known.

• 10 Assignment

1. The supplier is not entitled to assign its claims arising from the contractual relationship to third parties.
2. This shall not apply insofar as monetary claims are concerned.

• 11 Place of jurisdiction – place of performance – applicable law

1. If the supplier is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the supplier at the court of its place of business.
2. Unless otherwise stated in the order, our place of business shall be the place of performance.
3. The contracts concluded between us and the supplier shall be governed by the law of the Federal Republic of Germany to the exclusion of the Convention on Contracts for the International Sale of Goods (UN Sales Convention).