General conditions of purchase

General conditions of purchase

KHS General Terms and Conditions of Purchase 06/2010

I. Applicability

1. Unless otherwise agreed in writing, only the following Terms and Conditions of Purchase of KHS shall apply to our orders. Other terms and conditions shall apply only if they have been expressly recognized by us in writing.

2. Individual agreements between the Parties take precedence over these Terms and Conditions.

3. The Quality Guidelines for Suppliers of KHS , as amended from time to time and known and accepted by the contractor, are a binding and integral part of our Terms and Conditions of Purchase.

4. By accepting our purchase orders, the Supplier warrants that it observes and shall observe all relevant local, national and international ordinances, laws, edicts and regulations applicable at any given time and accepts responsibility therefor. This applies in particular to compliance with the checking of the various sanction lists as well as, but not limited to, so-called black lists.

II. Purchase order

1. Purchase orders/call-off orders, agreements, changes and additions are binding only if they are issued or confirmed by us in writing. Purchase orders/call-off orders can also be made through data communication.

2. Within the framework of what is reasonable to expect of the Supplier, the Purchaser can request changes to the delivery item in design and workmanship, whereby the effects, in particular with respect to additional costs and reduced costs as well as delivery dates, are to be regulated appropriately by mutual agreement.

3. The submission of offers, design studies etc. shall be at no cost to KHS and with no obligation for KHS.

III. Pricing, Passing of Risk

1. The prices are quoted DDU (named destination place) and are inclusive of packing and freight.

2. The agreed prices are fixed prices. Statutory value added tax valid at any given time is to be disclosed separately.

3. Invoices must be submitted separately with purchase order number indicated. Invoices lacking purchase order number are deemed to be not issued.

4. The passing of risk shall take place DDU (named destination place) (Incoterms 2000).

IV. Payment

1. Payment shall be made within 14 days less 3% discount or net within 30 days. The period allowed for payment begins with the arrival of the delivery and the corresponding invoice at KHS or the agreed receiving site.

2. In the event of faulty or incomplete delivery, the Purchaser is authorized to withhold payment, prorated on the basis of value, until proper fulfillment. V. Set-off 1. The Purchaser is entitled to rights of set-off and retention within the limits of statutory regulations.

2. The Supplier may not transfer its contractual claims in whole or in part to third parties without the written approval of the Purchaser.

3. The Supplier is not authorized to refuse elimination of defects to which said Supplier is obligated until full payment of the purchase price.

VI. Delivery dates and periods

1. Agreed dates and periods are binding. The deciding factor for adhering to the delivery date is the arrival of goods at the facilities of the Purchaser or those of a third party specified by said Purchaser. If the delivery time promised by the Supplier is not adhered to as a result of circumstances for which said Supplier is responsible, then said Supplier is obligated to the Purchaser to make good the damage caused by the delay and other damages. The Purchaser can also withdraw from the agreement.

2. If the delivery time promised by the Supplier is not adhered to as a result of circumstances for which said Supplier is not responsible, the Purchaser can, following fruitless expiration of a period of time set by said Purchaser, withdraw from the order, also without fixing a time limit if said Purchaser no longer has an interest in the delivery due to the delay in delivery.

3. The Supplier is obligated to notify us immediately in writing if circumstances occur or become recognizable as a result of which it is evident that the Supplier cannot adhere to the agreed periods and dates. In doing so, Supplier must state the grounds for the delay and the prospective duration of the delay.

VII. Notice of defects

1. The Purchaser must notify the Supplier of defects on the delivery item as soon as they are determined according to the facts and circumstances of orderly course of business. The Supplier shall waive the objection of late complaint.

2. The Supplier will be charged a flat fee of EUR 75 per justifiable defect for processing costs. Reservation is made for assertion of further damages.

VIII. Warranty

The Supplier guarantees against material defects and deficiency in title of the delivery item as follows:

1. The Purchaser is entitled in full to statutory warranty claims. The Supplier is obligated to – at the option of the Purchaser – rectify the defects of the contractual objects that are defective or replace them free of defects (subsequent performance). The right to damages, in particular to damages in lieu of performance, is expressly reserved.

2. The Supplier must bear the expenditure necessary for subsequent performance, in particular transport costs, travel costs, labor and material costs and retrofitting costs.

3. In addition to the rights defined in Art. VII No. 1, the Purchaser is entitled to statutory warranty and damage claims. This applies in particular also in the case of impossibility, defective performance and other conduct of the Supplier in violation of the agreement.

4. If the Supplier does not comply with its obligation to eliminate defects or provide a replacement, the Purchaser can – after fruitless expiration of a period of time set for the Supplier for making good the performance – withdraw from the agreement. The setting of a period of time is not required if the Supplier definitively refuses to render performance or declines to eliminate the defect due to unreasonableness or if the elimination of defects fails after the unsuccessful second attempt.

5. The Purchaser is authorized to carry out the elimination of defects on its own or through a third party, at the expense of the Supplier, in the event of urgency or risk in delay or if immediate fulfillment is of material interest. The Purchaser can fundamentally eliminate minor defects immediately or have them eliminated at the expense of the Supplier.

6. The Purchaser can also reduce the purchase price and demand damages or reimbursement of fruitless expenditures.

7. Claims of the Purchaser will lapse by no later than 36 months following proper delivery to KHS. IX. Product liability The Supplier holds the Purchaser harmless from its product liability in the event and to the extent the cause for the liability of the Purchaser is attributable to the area of risk and responsibility of the Supplier. This also applies in the event that product liability claims are made against the Purchaser under foreign law.

X. Confidentiality

1. The parties agree to treat as trade secrets all commercial and technical details that become known to them through business relations that are not public knowledge.

2. Drawings, models, tools, templates, patterns/samples and similar objects may not be turned over or otherwise made available to unauthorized third parties. Reproduction of such objects is permissible only within the framework of operating necessity and copyright provisions.

3. Sub-suppliers are to be obligated accordingly.

XI. Force majeure

1. Force majeure, labor disputes, unrest, governmental measures and other unforeseeable, unavoidable and serious events relieve the parties from their performance obligations for the duration of the disturbance and in the scope of their effect. This also applies if these events occur at a point in time in which the party involved is in default.

2. The contracting parties are obligated to provide, within the framework of what is reasonable, the necessary information without delay – in particular about the beginning and end of the circumstances of force majeure – and to adapt their obligations to the altered circumstances in good faith.

XII. Documentation and quality

1. The Supplier shall send the Purchaser, at no charge, complete technical documentation within the framework of the relevant EU guidelines, directives, laws and CE regulations. This does not apply to the extent the Supplier has manufactured the delivery items according to drawings, models, tools or templates supplied by the Purchaser. Intellectual property rights thereto shall remain with the Purchaser.

2. The Supplier guarantees that the delivery item corresponds to the latest recognized rules of technology and authoritative safety regulations. The Supplier guarantees in particular that the delivery item conforms to the relevant EU guidelines of the EC Machinery Directive, the German Equipment and Product Safety Act (Geräte- und Produktsicherheitsgesetz) and Machinery Regulations (Maschinenverordnung). If a claim is made against the Purchaser by a third party as a result of non-observance of the regulations by the Supplier, the Supplier will hold the Purchaser harmless from all claims.

3. The Supplier affirms by means of a ‘Supplier Declaration’ that the goods are manufactured in the EC and correspond to the rules concerning provisions of the term ‘originating product’ which apply in the trade of goods on preference terms. Manufacture in other countries requires express, written approval by the Purchaser and must be designated properly and in accordance with the legal regulations. The Supplier declaration can be issued as a long-term declaration at a maximum for the period of one year or may be given as an individual declaration on every invoice. The Supplier agrees if necessary to prove the correctness of its Supplier declaration through attachment of an information sheet and to make good the damage incurred by the Buyer as a result of an incorrect Supplier declaration.

4. The Supplier has a claim for payment of an invoice only if there is a Supplier declaration for the delivery or if the purchase contract does not provide for a Supplier declaration. 5. The Supplier agrees to make available to KHS at no cost the necessary instructions and documents, in particular also including spare parts lists and purchasing sources, necessary for the use, assembly, servicing, cleaning and repair of the subject matter of the contract.

XIII. Industrial property rights

1. The Supplier is liable for claims that arise in connection with use of the delivery items as specified in the contract as a result of infringement of industrial property rights and industrial property right applications (industrial property rights).

2. The Supplier shall hold the Purchaser and its buyers harmless from all claims arising from the use of such industrial property rights upon the first written request.

3. The parties agree to inform each other without delay of risks of infringement that become known and alleged incidents of infringement and to give each other opportunity to mutually counteract such claims.

4. Upon inquiry of the Purchaser, the Supplier will inform said Purchaser of the use of its own and of licensed – published and unpublished – industrial property rights and applications thereto on the delivery item.

XIV. Use of tooling and confidential data of the Purchaser

1. Models, molds, templates, patterns/samples, tools and other tooling as well as confidential data that are provided to the Supplier by the Purchaser or are fully paid for by the latter are the property of KHS and may be used for deliveries to third parties only with the prior, written approval of the Purchaser. KHS-specific parts may not be sold to third parties.

XV. Place of fulfilment, place of jurisdiction, applicable law

1. The place of fulfillment is the receiving location specified in the purchase order. Place of jurisdiction for all disputes is Dortmund. German law shall apply.

2. UN Sales Law (United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980) shall not apply.