Terms of purchase POLY-TOOLS GmbH bennewart

Valid from 01/01/2015

1. Generalities - scope

1.1 These conditions of purchase shall apply to all deliveries and services (hereinafter generally referred to as "supplies") that the buyer, contractor or service provider (hereinafter generally referred Supplier) provides to Poly Tools.

1.2 Our purchasing conditions apply exclusively; we do not recognize contradictory conditions, or conditions from the supplier that differ from our conditions, unless we have expressly agreed to their validity in writing. Our purchasing conditions continue to apply even if we unconditionally accept the supplier’s delivery while in full knowledge of contradictory conditions or conditions that differ from our own conditions.

1.3 Our Terms and Conditions of Purchase shall only be applicable vis-à-vis of the supplier as defined by § 310 Paragraph 1 of the German Civil Code.

1.4 The terms of purchase shall also apply in their respective version as framework agreement for future contracts concerning the sale and/or the delivery of movable objects with the same buyer without us having to refer to these again in each individual case.

1.5 Individual agreements reached in an individual case with the Buyer (including collateral agreements, supplements and amendments) shall in all cases have precedence over these terms of purchase. A written contract or our written confirmation shall be decisive for the contents of such agreements.

1.6 Legally relevant declarations and notifications, which are to be submitted towards us from the supplier after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of cancellation or reduction), require the written form in order to be valid.

2. Offer – Bidding documents

2.1 A contract shall only be formed as a result of written confirmation of the order and the acceptance by the supplier. This acceptance has to be confirmed within five working days. If the supplier does not accept an order within five days, we are entitled to revoke the order.

2.2 We reserve all title and copyright to illustrations, drawings, calculations and similar documents; this also applies to proprietary rights, in so far as they are subject to copyright protection. Documents cannot be given to third parties without our written consent. They must be used exclusively for the purposes of the contract. The documents must be returned to us in accordance with our written order at the latest, upon fulfillment of the order and without request. They must be kept confidential to third parties (to the extent applicable under Sections 9.3 and 9.4 below). The supplier has no right of retention on the documents.

3 Prices – Payment terms

3.1 The prices stipulated in our order are binding. All prices are specified in EURO; Invoices shall be issued in EURO. Unless otherwise agreed in writing, the price includes delivery "free", including packaging. Packaging is to return at our request to the supplier. If no other particular case is agreed, the price also includes all ancillary services from the supplier (e.g. assembly, installation) and all ancillary costs (e.g. Transportation costs, including transportation and liability insurance).

3.2 Invoices can only be processed, if they contain – in accordance with the specifications of our order – the order number shown on our order form; the supplier is responsible for any consequences resulting from the non-compliance with this obligation unless he is able to prove that he is not responsible for these consequences.

3.3 We pay unless otherwise agreed in writing, the amount within 14 days from the delivery and receipt of a verifiable invoice with 3% discount or net within 30 days of receipt of the invoice.

3.4 As customer, we have the rights of offset and retention according to the law. We shall be entitled in particular to retain due payments as long as we are still hold claims arising from incomplete or faulty services vis à vis suppliers.

3.5 The supplier shall have a right of set-off and/or right of retention and a right to refuse performance only because of counterclaims that have become final and unappealable or are undisputed.

3.6 The supplier is not entitled to relinquish his claims from this contractual relationship to third parties. This does not apply if it regards monetary claims.

4 Delivery

4.1 The delivery date specified in the order is binding.

4.2 The supplier must inform us in writing without delay when circumstances have occurred or are foreseen, which makes that the delivery deadline cannot be met. This however does not affect the liability of the supplier to keep the agreed delivery time.

4.3 In the event of default in delivery, we shall be entitled to statutory claims. This regulation in section number 4.4 shall remains unaffected.

4.4 In case of default in delivery or performance, the supplier has to be charged of a contractual penalty. The amount is 0.3% per day of delay, totaling a maximum of 5% of the net total amount. We are allowed to require contractual penalty until the final payment, even if we have not expressly reserved the right to do so when accepting the delayed delivery. The contractual penalty has to be charged to the supplier according to the damage resulting from delay. This agreement pertaining to the contractual penalty or enforcement thereof shall not affect any justified legal claims for a delay in delivery.

5 Risks - Documents - force majeure – termination

5.1 The delivery shall be “delivered free" to the location indicated in our order. If the destination is not specified and nothing else is agreed, delivery is made at our business location. The place of fulfillment for the delivery is the respectively determined location. In so far as acceptance testing is agreed, this point in time shall be authoritative for the passage of risk. Transport insurance is taken out by our company, as long as nothing else is agreed.

5.2 A delivery note is to be sent with the delivery, especially with the date (date of delivery and transport), the contents of the shipment (number and quantity article) and our order number (date and number). If the delivery is missing or is incomplete, we cannot be responsible for the resulting delays in processing and payment. In addition, the supplier shall ensure that all deliveries are properly labeled.

5.3 If the delivery or receipt of delivery cannot be made in cases of force majeure or in the event of labor disputes or other events that are beyond our control, we can claim a part or the full delivery to a later date, without entitling the supplier to any claims. However, if the delivery cannot be made within six months, each party has the right to terminate the contract. In this case the parties cannot be entitled to assert any claims.

5.4 The underlying agreement can be terminated - without notice - by either party if it has an important reason. An important reason is considered when the continuance of the contractual time period, taking into account all circumstances of the particular case and with the balanced judgment of mutual interests, is no more reasonable for the canceling party.

5.5 Is the supplier performing the contract on our site, he has to respect the internal regulations currently in force.

6 Defects

6.1 Regarding where applicable, the following conditions apply depending on the regulations (§ 377 HGB - German Commercial Code) with the following conditions: The statutory provisions (Sections 377, 381 HGB) [German Commercial Code] apply for the purchaser's commercial obligation to inspect and to give notice of defects, subject to the following conditions: The purchaser's obligation to inspect is restricted to apparent defects which can be visually identified, including shipping documents as well as the purchaser's quality inspection by random samples (for example transport damages, wrong and short delivery). No examination is required if an acceptance procedure has been agreed. For the rest, it depends to what extent an inspection taking into account the circumstances of the individual case is feasible according to the proper course of business. In all cases our objection (notification of defects) shall be deemed timely and without delay if it is delivered to the supplier within 10 (ten) days of the discovery of the defect.

6.2 We have a full right to legal claims for defects; whatever the default, we are entitled to require the elimination of the defect or replacement by the supplier. In this case, the supplier shall bear the cost of repair, replacement, or expenses necessary to achieve it. The right to claim damages, particularly for non-performance, explicitly remains reserved.

6.3 The period of limitation is 12 month, beginning with the transfer of risk.

6.4 The receipt by the supplier of the written notification of a defect shall block the term of statutory limitation for claims for defects. In the event of replacement delivery or the rectification of defects, the warranty period for replaced parts shall begin afresh, unless we had to presume that the supplier did not see himself obliged to achieve this, but had made the delivery of replacement or removal of defects only as a act of goodwill or for similar reasons.

7 Product Liability - Indemnification - Liability insurance

7.1 If the supplier is responsible for a problem that gives rise to a product liability claim, the supplier must on request exempt the customer from any claims for compensation by third parties, to the extent that the cause is located within the supplier's sphere of authority and organizational area, and the supplier is individually liable to third parties.

7.2 As part of its liability for cases of damage within the meaning of Sentence 7.1 above, the supplier shall also reimburse any expenditures arising from or in connection with a recall of products occurring in this context. We shall inform the supplier in advance of the content and scope of the recall measures – in a possible and reasonable way -   to be implemented and give the Supplier the opportunity to comment, other legal claims will remain unaffected.

7.3 The supplier undertakes to maintain and on request show evidence of a product liability insurance policy with a reasonable cover amount, at least EUR 5.0mio. per injury/damage to person/property.  If we are entitled to further damages, these remain unaffected. The supplier must give us upon request a copy of the insurance policy or by special request send us a current certificate of insurance.

8 Property Rights

8.1 The supplier commits himself to ensure that his deliveries violate no right of any third party.

8.2 If claims are asserted against us by a third party due to such infringement, the supplier shall be obliged to indemnify us from these claims upon first request. We are not entitled to conclude any agreements with the third party – in particular to make a compromise – without the consent of the supplier.

8.3 The supplier's duty of indemnification relates to all expenses, which accrue to us as a result of or in connection with the third party claim.

9 Reservation of proprietary rights - Confidentiality - Subcontracting

9.1 If any of our products is mixed with another product, and thus makes them inseparable, we will acquire ownership of the new product in proportion to the value of the item (purchase price plus VAT.). If the mixture is such that the supplier part is considered the principal element, it is agreed that the supplier gives us a condominium in proportion; supplier holds the sole ownership or co-ownership for us.

9.2 Tools, equipment and models that we make available to the supplier or manufactured for contractual purposes and are billed separately by the supplier remain our property. They must be identifiable by the supplier as our property, be stored carefully, be protected against damage and be used solely for the purposes specified in the contract. The supplier is obliged to return the tools in good condition; the supplier is not entitled to keep the above named objects.

9.3 The supplier is obliged to keep secret all the photos, drawings, calculations, and other documents and information strictly confidential; the same applies to all our trade secrets. They can only be disclosed to third parties with our express permission. This confidentiality obligation will remain after the termination of the contract; this obligation expires insofar as illustrations, drawings, calculations and other documents become public.

9.4 The supplier is obliged to treat all technical and commercial data relating to the contract as a business or commercial secrets. The supplier is also obliged to keep secret our professional relationship. Exceptions require our prior written consent.

9.5 Both the supplier and we are authorized to process and record the data from the other part. Data protection regulations must be observed.

9.6 The supplier is not authorized to provide a service by third parties without our written consent. In the event that a third party is authorized to make the delivery, the third party is required by the supplier to maintain confidentiality in accordance with these paragraphs 9.3 and 9.4 in writing; at our request the supplier is required to send us a copy of the writing.

9.7 Our technical manager or other authorized person is at any time allowed to inquire from the supplier or from third party on the progress of the delivery. Suppliers or third parties have to give access to information and necessary documents. At our request, they must send us copies.

10 Proof of origin, spare parts

10.1 The supplier shall provide without delay the certificates of origin, declarations providers, the customs nomenclature number or preference certificate and other documents and data in compliance with the legal requirements of foreign trade.

10.2 Unless otherwise agreed, the supplier must keep available spare parts products - he has delivered - for a period of 15 years after delivery.

10.3 If the supplier would consider stopping the production of spare parts required for our products, he must inform us immediately after its decision. This decision must be made at least six months before the end of the production - without prejudice to the preceding paragraph 10.2.

11 Jurisdiction - Place of Performance

11.1 The law of the Federal Republic of Germany excluding all international and supranational (treaty) law systems, in particular the UN Convention on Contracts for the international Sale of Goods, shall apply to these conditions of purchase and all legal relations between us and the supplier.

11.2 The place of performance for all further proceedings according to our preference is our head office or place of destination or use of the delivery.

11.3 If the supplier is a merchant, legal entity under public law or membership in a particular capital public law, the exclusive place of jurisdiction for any contractual dispute with the supplier is the competent court of our head office. However, we also have the right to file a complaint instead of the obligation of delivery or at the registered office of the supplier at our discretion.