Terms and Conditions

1. General

1.1 These standard conditions of sale shall apply exclusively for any sale of goods (“Goods”) by BODE Chemie GmbH (the “Company”) to any person, body, or company (the “Buyer”). Differing or contrary terms or conditions shall not apply except if expressly agreed upon in writing.

1.2 These standard conditions of sale shall also govern all future purchases of Goods from the Company and shall also apply if the Company performs delivery without knowledge of differing or contrary terms and conditions.



2. Order Process

2.1 Goods may be ordered by the Buyer through any order processes offered by the Company.

2.2 Listings of Goods on any website, in any product list or price list or in any other general publication of the Company shall not be deemed to constitute an offer by the Company for the sale of such Goods. The Buyer may select any Goods listed in a product list of the Company and request a quotation from the Company for such Goods in the desired quantity. The Company will then review the request and if it decides to do so prepare an individualized quotation for a sale of such Goods to the Buyer indicating the applicable pricing and shipping terms (“Quotation”).
The Company will typically process requests within one week of receipt if the ordered goods are fulfilling all national laws and legislation and are complying with the requirements of the relevant Authorities.

2.3 The Buyer shall then confirm the Quotation in writing within one week of its receipt or, if applicable, within the Qutation validity. A binding contract on the sale of the Goods (“Contract”) is only concluded upon the Company's receipt of such confirmation of the Quotation and is always subject to availability and credit-worthiness of the Buyer. Any Quotation that is not accepted by the Buyer within one week of its receipt or, if applicable, within the Quotation validity, shall expire. If accepted, the Quotation shall be binding basis for the delivery, including with respect to quantity, specifications, always subject to availability and credit-worthiness of the Buyer.



3. Prices

3.1 Unless otherwise stated in the Quotation all prices (including handling and shipping charges) are exclusive of VAT. If the Quotation is silent on the handling and shipping charges all prices shall be ex works, exclusive of the respective statutory VAT.

3.2 Where prices are expressly stated to be inclusive of VAT the Company may adjust the prices to reflect any changes in the applicable statutory VAT rate.



4. Payment

4.1 Unless otherwise stated in the Quotation all payments are due and payable net within 30 days from the date of the invoice. Payment shall be made by bank transfer or any other means agreed by the Company.

4.2 Without prejudice to the Company's right to prompt payment the Buyer shall pay interest at the rate of 8 percentage points above the base interest rate pursuant to section 247 (2) of the German Civil Code (Bürgerliches Gesetzbuch) announced by the Deutsche Bundesbank and published in the German Federal Law Gazette (Bundesanzeiger) in the respective version per annum on the balance of any invoice or other sum remaining unpaid from the due date of payment of the same until the date of actual payment and shall in addition reimburse the Company all reasonable costs and expenses (including legal costs) incurred in the collection of any overdue balance or accounts. The Company reserves any further rights resulting from a delay in payment.

4.3 The Company does not provide any credit facilities under this Agreement, whether as loan or as trade credit. However, the Company is entitled to cover the outstanding amount with corresponding credit insurance. The Buyer will provide all necessary information to the nominated credit insurance company or the Company directly in order to enable or extend such insurance coverage. If the insurance provided by the nominated credit insurance company does not cover the outstanding amount for any reason whatsoever, the Company in its sole discretion is entitled to either demand further securities for the uninsured gap, which the Buyer is obliged to provide or to adapt payment and delivery terms accordingly.

4.4 An exposure to loss of receivables entitles the Company to demand immediate payment of all outstanding invoices no matter if they are already due or the transfer of additional securities. This exposure will become evident if an intensive impairment on the financial circumstances of the Buyer emerges, a delay in payment occurs or the credit worthiness of the Buyer declines severely. In case of outstanding deliveries the Company is authorized to demand prepayment in order to proceed with delivery.



5. Delivery and Risk

5.1 Unless expressly stated otherwise by the Company any date or times quoted by the Company for despatch or delivery of the Goods to the Buyer are indicative only. The Company will notify the Buyer if it becomes aware of any actual or expected delay. Further rights of the Buyer based on such delay are excluded.

5.2 The risk of damage to or loss of the Goods shall pass to the Buyer upon despatch at the premises of the Company. Unless otherwise stated in the Quotation place of fulfillment shall be at the premises of the Company.

5.3 The Company reserves the right in its sole discretion to effect delivery of the Goods in instalments and to issue a separate invoice for each such delivery instalment setting out the invoice amount for each such instalment. Payment for such instalments shall be made in accordance with clause 4.



6. Retention of Title

6.1 The Company retains ownership of all Goods until receipt of all payments for the relevant Contract. In case of breach of contract by the Buyer including, without limitation, default in payment, the Company is entitled to take possession of the Goods.

6.2 The Buyer may only resell Goods that are subject to the retention of title in the ordinary course of his business. The Buyer hereby assigns to the Company all claims arising from such resale, including any ancillary rights until all of the Company's claims with respect to the relevant Goods are completely settled. The Company herewith accepts such assignment. The Buyer shall be entitled to continue to collect the payment on the assigned claims. The Company will not demand payment on the assigned claims as long as and to the extent the Buyer complies fully with all his payment obligations.



7. Registration of Buyer and Goods

The Buyer warrants that it is in possession of all legally required registrations and licenses necessary for the conduct of its business, the purchase of the Goods and, where applicable, the distribution of the Goods in its country. In particular, the Buyer warrants to have obtained all legally required registrations and licenses (for itself and the Goods) as are necessary to import the Goods into its country and (to the extent the Buyer acts as distributor) to distribute the Goods in such country. At the request of the Company the Buyer shall provide the Company copies of these registrations and licenses, including English translations of the same.



8. Recall

8.1 If the Company believes that a recall of any Goods or any other safety related action in relation to the Goods in the country of the Buyer is desirable or required by law or the competent authority has ordered any such action (“Recall”), the Company will notify the Buyer accordingly.

8.2 In the event of a Recall the Buyer shall fully cooperate with the Company in relation to such Recall and shall comply with any requests of the Company in relation to the Goods. In particular, if so requested by the Company, the Buyer shall immediately take any action required for the identification and/or retrieval of the relevant Goods and shall cease the use or distribution of such Goods.

8.3 Upon request, the Buyer will inform the Company of his stocks of the relevant Goods and discard/destroy such Goods in accordance with the instructions of the Company or ship such Goods to the Company at the Company's costs (if explicitly so requested by the Company). The Company will then at its discretion either resupply or reimburse any such recalled Goods at its own expense. The Company may require adequate proof of Goods having been discarded/destroyed. If such proof is not provided to the reasonable satisfaction of the Company, the Company may charge for any Goods re-delivered at standard rates.

8.4 In case the Buyer is a distributor the Buyer shall also procure that the recall is implemented with respect to its customers.

8.5 If the Buyer reasonably believes that a recall of any Goods or any other safety related action in relation to the Goods in the country of the Buyer is desirable or required by law or the Buyer receives an order by a competent authority to that effect, the Buyer shall immediately notify the Company giving reasonable particulars of the matter. For the avoidance of doubt, it is the Company's exclusive right to issue recalls, safety alerts, advisory notices or similar remedial actions with respect to the Goods.



9. Warranty

9.1 The Buyer shall examine the Goods without delay after delivery, insofar as reasonably feasible in the ordinary course of its business. Any defect identified shall be notified to the Company without delay. If the Buyer fails to make such notification the Goods shall be deemed accepted, unless the defect was undiscernible upon examination. If a defect that was undiscernible upon examination becomes apparent later, the Buyer shall notify the Company without delay upon discovery of the defect; otherwise the Goods shall be deemed accepted with regard to such defect. The Company may request evidence of the claimed defect (e.g. by the provision of samples or analytical results).

9.2 In case of defects the Company will in its sole discretion either repair the defective Goods, replace the defective Goods with identical goods or with goods of comparable quality or issue a credit note to the Buyer to enable the Buyer to order from the Company new Goods free of charge. If an attempted remedy has failed for the third time, the Buyer is entitled to either reduce the purchase price or to withdraw from the Contract with respect to the defective Goods (or from the entire Contract if being bound to the remainder of the Contract would cause an undue burden for the Buyer). The right to withdraw from the Contract is excluded in case of only minor defects.

9.3 Defective Goods shall be discarded/destroyed in accordance with the instructions of the Company or be shipped to the Company at the Company's costs (if explicitly so requested by the Company).

9.4 Warranty claims shall be time-barred 12 months after the date of shipment.



10. Product Use; Liability


10.1 The Buyer shall only use the Goods as intended and described by the Company, including as indicated on the packaging and shall fully comply with any product information, instructions, manuals and product warnings issued by the Company.

10.2 In no event shall the Buyer repack or modify any Goods or the packaging thereof, remove any information or labels of the Goods or the packaging thereof unless otherwise agreed in writing. Upon distribution, any product information, instructions, manuals and product warnings issued by the Company shall be made available to any customers by the Buyer.

10.3 Any distribution by the Buyer shall be made in full compliance with any instructions issued by the Company and using only such statements, information and claims regarding the Goods, any of their properties and the use of the Goods as are used or authorized by the Company. The Buyer shall refrain from making or giving any additional, modified or different statements, information and claims regarding the Goods, any of their properties or the use of the Goods, except with the prior written consent of the Company.

10.4 The Company shall not be liable for any loss or damage arising directly or indirectly from or in relation to any misuse of the Goods by the Buyer or any of its customers, including any breach of the Buyer's obligations pursuant to this clause 10. The Company shall further not be liable for any damage or loss arising from any unusual or remote events and circumstances unforeseeable for a prudent businessman. This exclusion shall not apply in cases of gross negligence or intentional acts.

 

0. Preliminary note
BODE Chemie GmbH, as a wholly-owned subsidiary of PAUL HARTMANN AG, applies the general purchasing conditions (hereinafter referred to as "GTP") of PAUL HARTMANN AG, referred to below under points 1-20.

1. General information
a) These GTP govern the purchase of Contract Products and the provision of Services by Suppliers to PHAG. The Contract Products to be delivered as well as the Services to be provided shall be specified in the respective Order supplementing the present GTP, with the provisions of the Order prevailing in case of any contradictions. If a separate written agreement was concluded between the Parties for the same subject matter, the present GTP shall only apply by way of supplement and shall be referred to as subordinate provisions in case of any contradictions.

b) In these GTP the following words and expressions shall have the following meaning: - “Contract Products” means all goods, products, spare parts and other deliverables specified or indicated by PHAG in the Orders; - “PHAG” means PAUL HARTMANN AG, Paul-Hartmann-Straße 12, D-89504 Heidenheim, or the PHAG Subsidiary placing the respective Order with Supplier; - “PHAG Subsidiaries” means all companies in which PHAG Corporation is directly or indirectly involved as a majority or minority shareholder; - “Order” means the purchase order or call-off of Contract Products or Services, in connection with these GTP in each case, without any explicit reference to the present GTP being required in the Order. Each PHAG company places Orders at Supplier on its own behalf and for its own account; - “Parties” means PHAG and Supplier, “Party” means any of them; - “Services” means all services provided by Supplier to PHAG that are specified or indicated in the Orders by PHAG and/or are reasonably associated with the same; unless there is any explicit written agreement to the contrary, these shall be services under a contract for work and services (Werkvertrag), with the result constituting a “work” in each case, as well as other services to be provided by Supplier; - “Supplier” means the respective provider/seller of the Contract Products and/or Services ordered in each case.

c) Supplier‘s General Terms and Conditions or General Contractual Terms are expressly and entirely excluded, (1) even if Supplier makes reference to them in its order confirmations, delivery notes or similar documents and PHAG does not expressly object to them or (2) even if and insofar as they only supplement these GTP. The fact that PHAG accepts any deliveries and/or Services shall not be deemed as agreement with any of Supplier‘s deviating terms.

2. Orders, contract conclusion, amendments
a) An Order shall be deemed to have been accepted by Supplier if PHAG has not received a written rejection of the Order by 5 p.m. on the second working day following the date of receipt of the Order by Supplier, but in no event later than Supplier‘s delivery of the Contract Products and/or provision of Services ordered. By accepting an Order placed by PHAG, Supplier undertakes to comply with all the terms and conditions contained in the Order, including these GTP.

b) PHAG may amend Orders at any time by notice to Supplier, with Supplier being bound by the corresponding amendments, unless the amendments notified by PHAG result in higher or lower costs and/or in a longer or shorter delivery period and Supplier submits to PHAG a revised quotation within three (3) working days of receipt of the amendment notice. In that case, Supplier shall only be entitled to carry out the amendments notified if it receives a corresponding Order within five (5) working days. If this is not the case, Supplier shall carry out the original Order without any changes.

3. Service, delivery and transport terms and conditions
a) Unless otherwise stated in the Order, the Contract Products shall be delivered at FCA place of departure or departure airport for air freight (Free Carrier – Incoterms 2010). The passing of risk to PHAG shall be in accordance with the agreed Incoterm.

b) Upon delivery of Contract Products, the consignment shall be accompanied by a delivery note stating the relevant order number, the order date, the material number, the quantity and the ordering party.

c) Unless stated otherwise in the Order, the seat of the respective ordering PHAG company shall be deemed the place of performance for the Services.

d) PHAG shall be entitled to reject any Contract Products or Services prematurely provided or delivered by Supplier to PHAG or, in case of Contract Products, to return them to Supplier at the latter‘s expense. If Contract Products that are delivered prematurely are not returned, PHAG shall store them at Supplier‘s expense and risk until the agreed delivery date. The payment periods specified in clause 8.b) of these GTP shall only begin after the agreed delivery date or date of performance.

e) In the event of additional deliveries beyond what is customary, PHAG also reserves the right to return any excess Contract Products at Supplier‘s expense.

4. Delivery and performance dates, delay
a) The applicable delivery date or date of performance is the date specified in the Order. In case of Contract Products, this shall be the date from which Supplier is obliged to make the Contract Products available at the agreed place of performance according to the Incoterm agreed. The dates – delivery, notification and/or provision dates – as indicated in the Orders shall be binding on Supplier.

b) If performance, delivery or production difficulties arise, Supplier shall inform PHAG immediately in writing and take all necessary measures to avoid a delay in performance or delivery.

c) If Supplier fails to observe performance or delivery dates, it shall be in default without further notice, without any reminder or the granting of a grace period being required in this respect; in that case, PHAG shall be entitled to declare rescission of the contract.

d) If Supplier is in default of performance or delivery, PHAG shall be entitled to claim a contractual penalty in the amount of 0.2 % (zero point two percent) for every commenced calendar day of the delay, up to a maximum of 5 % (five percent) of the gross invoice amount or the gross order total for the outstanding delivery or Service not yet rendered in each case.

e) Assertion and/or payment of a contractual penalty shall not preclude the assertion of further claims. The contractual penalty shall be offset against any claim for damages on the part of PHAG.

f) The unconditional acceptance of a delayed performance or delivery by PHAG shall not be construed as a waiver of any claims under any title whatsoever.

5. Other performance obligations for Supplier, quality of the Contract Products and Services
a) Supplier undertakes to manufacture, deliver and provide the Contract Products and Services referred to in the Orders on time, in the correct quantity and with the appropriate quality.

b) Supplier guarantees that (1) the Contract Products and Services have the characteristics and features defined in the Order, in the PHAG specifications or in other documents produced by PHAG, (2) it complies with the (manufacturing) process defined in the PHAG specifications or in other documents produced by PHAG, (3) the Contract Products and the Services to be provided satisfy legal requirements and generally accepted rules in terms of their manufacture, provision, quality, condition and usability, (4) Supplier observes all statutory safety regulations in full, (5) the Contract Products and Services are suitable for all types of use that can be reasonably expected, and (6) all written and verbal statements made and information provided by Supplier to PHAG during the initiation of the business relationship, in relation to its company, the Contract Products and the manufacturing process, as well as to the Services to be provided, are accurate.

c) Supplier shall be under an obligation to PHAG to implement and maintain quality assurance and environmental management measures and checks that are appropriate and sufficient for compliance with the quality and environmental standards agreed between PHAG and Supplier for the Contract Products and Services. Supplier shall also comply with separate stipulations applicable at the respective PHAG site, in particular in view of health, safety and environment. Contract Products and Services suffering from a material or manufacturing defect or some other quality defect must not be dispatched without PHAG‘s prior written consent and shall be segregated by Supplier.

d) The assignment of any Order or of the manufacture of Contract Products or of the provision of Services – in full or in part – to a third party (subcontractor) may only take place (1) with the prior written consent of PHAG and (2) under the provision that Supplier concludes a contractual agreement with such third party that does not fall short of the obligations assumed by Supplier towards PHAG under the Order and the present GTP. Even in case of the authorised assignment of third parties, Supplier alone shall remain fully accountable to PHAG for proper fulfilment of the Orders and Supplier shall be liable for acts and omissions by third parties, subcontractors and auxiliaries.

e) Supplier shall grant PHAG or third parties designated by PHAG (such as regulatory authorities) free access to all necessary departments, premises and facilities (especially for production, provision, storage and testing of the Contract Products and Services) and inspection of all relevant documents during normal business hours.

f) Supplier grants the right to conduct an unannounced audit to the notified bodies / authorities and grants full access to its premises and documents for this purpose.

6. Procurement and provision of materials
a) Supplier itself is responsible for the procurement of raw materials or other materials that are needed for proper execution of PHAG‘s Orders.

b) No material (substances, parts, tools, machinery, etc.) shall be provided by PHAG; any deviating provisions may be agreed by the Parties by way of separate written agreements exclusively, after taking account of the legal and fiscal situation in individual instances.

7. Demand forecast, performance and delivery capacity
a) For production planning purposes and to ensure performance and delivery reliability, PHAG reserves the right to provide Supplier with a demand forecast. Demand forecasts from PHAG shall not be binding on PHAG. They are subject to ongoing changes by PHAG and are merely intended to enable Supplier to be predictive in procuring materials and planning performance and delivery capacity.

b) The non-binding demand forecast may be made on a rolling basis, usually for the next 12 to 18 months, and may be updated monthly. It may be sent to Supplier electronically. Supplier is obliged to check the demand forecast. Supplier shall be deemed to have accepted the non-binding demand forecast upon Supplier‘s receipt thereof unless Supplier contradicts this without delay for a good reason for which it is not responsible.

c) If a demand forecast from PHAG exceeds Supplier‘s performance or delivery capacity, Supplier shall notify PHAG accordingly without delay. In that case, Supplier shall immediately provide PHAG with a binding written statement concerning its further performance or delivery capability.

8. Prices, payment terms, invoicing
a) Unless explicitly indicated otherwise in any Order, the prices agreed for Contract Products and Services shall be deemed flat-rate fixed prices. In the case of Contract Products, the agreed prices shall comprise in particular also the cost of product packaging and any transport packaging additionally required, but no applicable value-added taxes. Supplier shall indicate any VAT separately on the invoice.

b) Unless otherwise agreed, payment shall be made by PHAG either within 15 (fifteen) days with a 2 % (two percent) discount or within 60 (sixty) days without a discount. This period shall run from the date on which the invoice is received, though not prior to receipt of the complete delivery or Service provision and, if the scope of performance includes documentation and test certificates, not before these are handed over to PHAG in accordance with the contract.

c) PHAG shall not be in default of payment until it has received a written reminder from Supplier.

d) Invoices from Supplier shall be sent to the invoice address and the respective accounting office indicated in the respective Order.

9. Liability, product liability
a) Unless otherwise stipulated in these GTP, Supplier‘s liability shall be governed by statutory law.

b) In the event that claims are brought against PHAG for (1) strict liability under mandatory law, for instance absolute liability, or (2) infringement of official safety requirements as well as national or international product safety or product liability laws and regulations due to such defects in PHAG‘s products that can be attributed to the delivery of defective Contract Products or the defective provision of Services, Supplier shall be obliged to indemnify PAUL HARTMANN AG against such claims if and insofar as the damage or loss caused has its origin in Supplier‘s sphere of responsibility or organisation; this indemnification obligation shall be met at first request, but not before PHAG has given Supplier the opportunity to comment within two weeks of receiving notice from PHAG. In addition, Supplier is obliged to reimburse PHAG for all costs that arise in connection with corresponding recalls and/or other measures that are either necessary or appropriate to prevent personal injury and/or property damage; PHAG shall inform Supplier of the nature and scope of the recalls and other measures and shall give the opportunity to comment.

10. Warranty
a) Unless otherwise stipulated in these GTP, the rights and obligations of the Parties in respect of defects of quality or title inherent in the Contract Products or Services shall be governed by statutory law.

b) Within the scope of its incoming inspection and/or in the course of acceptance of performance, PHAG performs random checks of the Contract Products and/or the Services provided only for identity, delivery quantity and obvious transport damage. PHAG is not under any obligation to Supplier to conduct any further incoming, quality or other inspections. In this respect, PHAG is exempt from any existing statutory obligation to Supplier in relation to examination and notification. In addition, the incoming inspection and/or performance acceptance conducted by PHAG shall not release Supplier from its obligation and sole responsibility for safeguarding the quality of the Contract Products and Services according to clause 5.c) of these GTP.

c) PHAG shall report any identity defects, deviating quantities or manifest transport damage found during the incoming inspection or performance acceptance within a reasonable period. PHAG is entitled to report all other defects to Supplier within the warranty period. In this respect, Supplier waives the right to raise objection of delayed notice of defects.

d) PHAG shall report any defects found within the framework of test reports, which shall be made available to Supplier, in the form of complaints or in any other suitable form. Supplier shall immediately check and respond to any notices of defects that it receives. If, within 5 (five) working days of receiving a notice of defects, Supplier does not object to its content in writing, the content of the notice of defects shall be deemed to have been accepted by Supplier.

e) If the Contract Products or Services fail to meet the requirements of the Order, in particular by showing any material or manufacturing defects, PHAG may, at its discretion, proceed as follows and Supplier shall be obliged as follows, at PHAG‘s discretion: (1) PHAG may (1a) reject any defective Contract Products and/or Services, return them to Supplier at the latter‘s expense and demand a replacement delivery and/or renewed provision of the Services or (1b) rescind the Order; or (2) PHAG may call on Supplier to inspect the defective Contract Products and/or Services and (2a) to repair and/or mend them, or (2b) to remove them and replace them with defect-free new or repaired Contract Products and/or Services. If PHAG opts for (1a), (2a) or (2b) and Supplier fails to inspect, repair and/ or mend or remove and replace the Contract Products and/or Services immediately upon request, or if such mending by Supplier is impossible or economically unreasonable, PHAG may scrap such defective Contract Products itself or have them scrapped, repair or replace them and have them repaired or replaced. In any case, PHAG may claim damages from Supplier. Other remedies remain reserved.

f) The costs and losses to be reimbursed by Supplier in the event of defects of quality or title shall particularly, but not exclusively, include costs in connection with personal injury, remedial costs and any internal expenses incurred by PHAG that are necessary in this respect, most notably replacement, removal and installation costs, transportation costs, as well as any attorney‘s fees and legal costs.

g) Unless otherwise stipulated below, Supplier‘s liability for defects of quality shall expire at the end of 36 (thirty-six) months after delivery to PHAG and/or after acceptance of the Services provided. If the Contract Products are firmly attached to a building structure or relate to an item that is used, in accordance with its common use, for a building structure and causes this to be defective, the warranty period shall be 5 (five) years from acceptance by the end customer. What is decisive about this 5(five)-year period, accordingly, is the purpose and not whether the Contract Products and/or Services used for the building structure become essential parts of the property or building structure.

11. PHAG Code of Conduct for Suppliers
a) Supplier undertakes to comply with the PHAG Code of Conduct for Suppliers. The PHAG Code of Conduct for Suppliers is published at www.hartmann.info. Supplier may request a written copy from PHAG at any time.

b) Supplier undertakes to ensure, through suitable measures, that Supplier‘s employees are familiar with and observe the minimum requirements of the PHAG Code of Conduct for Suppliers (e.g. through internal compliance programs at Supplier).

c) Supplier undertakes to communicate the PHAG Code of Conduct for Suppliers to its own suppliers, subcontractors and service providers in an effective manner when placing orders that are relevant to PHAG and to demand that these third parties comply with it accordingly. In the event of a rejection or noncompliance by these third parties, Supplier shall inform PHAG in writing without delay.

d) In the case of gross violations of the PHAG Code of Conduct for Suppliers, PHAG shall be entitled to cancel the respective Order, with immediate effect and without notice.

12. Termination of the contract
a) Until delivery of the Contract Products and/or provision of the Services is fully completed, PHAG may cancel the respective Order at any time. If PHAG terminates the contract, Supplier shall be entitled to claim the agreed purchase price in case of Contract Products or the corresponding compensation (pro rata temporis) in case of Services; in any case, Supplier shall permit that amount of money to be offset against its claims that it saves on account of termination of the Order. It is presumed that Supplier is entitled to 5 % (five percent) of the portion of the purchase price or fee attributable to those Contract Products that have not been delivered yet or to those Services that have not been provided yet. Moreover, any claims by Supplier in connection with any early termination, in particular claims for performance, lost profit or damages, are excluded unless explicitly stated otherwise in these GTP.

b) PHAG may cancel an Order not fully completed yet with immediate effect and without notice, without Supplier being entitled to a corresponding payment of the purchase price or service fee under clause 12.a) of these GTP, in particular if (1) Supplier is late with a delivery or Service performance, (2) Supplier goes bankrupt or into liquidation or initiates corresponding judicial or extrajudicial settlement negotiations with its creditors, or (3) in case of clause 11.d) of these GTP.

13. Assignment
No Party shall transfer or assign its rights and obligations under the Orders to third parties without the prior written consent of the other Party. PHAG is entitled to transfer or assign its rights and obligations under the Orders, or parts thereof, to a PHAG Subsidiary, and vice versa.

14. Exclusivity
Unless explicitly stated otherwise in the Order, Supplier undertakes to manufacture and/or provide Contract Products and/or Services manufactured or provided according to PHAG specifications for PHAG exclusively and to only deliver them to PHAG.

15. Industrial property rights and copyrights
a) Unless absolutely necessary for the manufacture of the Contract Products or the provision of the Services, Supplier is not entitled, without PHAG‘s prior written consent, to use PHAG‘s trademarks, designs, product designations, registered designs and utility models. Any reference to Supplier‘s collaboration with PHAG shall require PHAG‘s prior written consent.

b) Unless explicitly stated otherwise in the Order, Supplier hereby assigns, exclusively and without restrictions (as to time, place, content), to PHAG Corporation all intellectual property rights (trademark, design, design patent, patent rights, etc.) pertaining to the “results” of any Service (e.g. knowledge, designs, know-how, programs, techniques etc.) to the extent these are created in the course of providing any Services and regardless of whether they are eligible for protection or not. PHAG Corporation hereby accepts said assignment. The assignment of the results shall be compensated by the first-time order of any Service and the corresponding payment. Based on the results, PHAG Corporation is entitled, in particular, to register, pursue and also abandon industrial property rights each on a national and/or international level at any time. Upon PHAG‘s request, Supplier shall immediately assign to PHAG free of charge any inventions eligible for protection that are made by its employees during execution of an Order, with Supplier being obliged to ensure the respective power of disposition at its own expense. If copyrights are created for the results, Supplier hereby grants PHAG the sole copyright exploitation rights for the results free of charge and unrestricted in terms of time, place and content for all types of use with or without reference to the author. This shall also apply, in particular, to proprietary computer programs (in object and source code). PHAG shall be entitled, in particular, to reproduce all results, save them on image, audio and data media, process them, edit them, alter them or translate them and to use and distribute them in a different or in the original form without Supplier‘s consent.

c) To the extent any results have emerged before commencement of an Order or during execution of the Services under an Order, but separate therefrom, said results shall be designated as “Non-contractual Results”. Any Party’s title to its Noncontractual Results shall not be affected either by these GTP or by any Order. However, Supplier hereby grants to PHAG an irrevocable, simple, personal right of use unrestricted in terms of time, place and content with respect to Non-contractual Results as well as any patents and rights of use to be registered, to the extent that the use thereof is appropriate and required for the contractual use of the Contract Products and/ or Services.

d) Supplier shall be liable for the freedom of the results from third-party proprietary rights and rights of use, and undertakes to indemnify PAUL HARTMANN AG against third-party claims due to a breach of proprietary rights and rights of use occurring in the course of their contractual use. Furthermore, in such instances, Supplier shall acquire the right for PHAG to continue using the results at the former’s expense or to modify the results in such a way that the breach of proprietary rights or rights of use no longer exists. The previous provision also applies to Non-contractual Results provided they are used by PHAG in accordance with clause 15.c) of these GTP.

16. Confidentiality
a) Any business and trade secrets that either Party acquires about the other Party as a result of the collaboration, particularly including the specifications and technical documents that PHAG makes available to Supplier, must be kept confidential and not passed on to third parties without permission in writing. The Parties undertake to maintain the confidentiality of all commercial or technical information that is not in the public domain and which is known to them as a consequence of the business relationship, not to make it accessible to third parties and not to use it for their own commercial purposes.

b) This obligation does not apply to knowledge or documents that are in the public domain or already known by the receiving Party at the time of receipt without having been under any confidentiality obligation or which are developed by the receiving Party without utilizing confidential documents or knowledge. This obligation also does not apply if the receiving Party is required to disclose such information by an administrative or judicial order.

c) PHAG Corporation and PHAG Subsidiaries shall not be third parties for the purposes of this clause 16 if they embrace the obligations contained herein.

17. Security declaration
a) PHAG Corporation is an Authorized Economic Operator (hereinafter referred to as “AEO”).

b) If Supplier is not an AEO itself or has not made a corresponding application for certification, Supplier shall guarantee that (1) Contract Products that are produced, stored, forwarded or carried by Order of PHAG, which are delivered to PHAG or which are taken for delivery from PHAG are produced, stored, prepared and loaded in secure business premises and secure loading and shipping areas, and are protected against unauthorized interference during production, storage, preparation, loading and transport, that (2) reliable staff is employed for the production, storage, preparation, loading and transport of the goods, and (3) business partners who act on behalf of Supplier are informed that they also need to ensure the supply chain security mentioned above.

18. Other provisions
a) The present GTP replace all previous GTP of PHAG that govern the same subject matter and apply as amended in each case.

b) Transmission by fax or email (or other equivalent forms of electronic exchange, provided the Parties have previously agreed on such form by fax or e-mail) shall be considered compliant with the written form.

c) The Parties agree that documents in electronic form shall be equivalent to hardcopy documents and that they will not challenge their authenticity or correctness for the sole reason that the documents are submitted in electronic form and not in hardcopy form.

d) Supplier shall store all documents for a period of 15 (fifteen) years after the issuing date of the respective documents.

19. Severability clause
a) Should any provision of the Order or of these GTP be wholly or partly void, ineffective or unenforceable for other reasons, the effectiveness or enforceability of the remaining provisions shall remain unaffected thereby. The Parties undertake to agree on a replacement for the (partially) ineffective provision concerned that comes as close as possible to its sense and guarantees a corresponding commercial result.

20. Applicable law, jurisdiction
a) German law shall be exclusively applicable to the present GTP as well as to Orders, to the exclusion of the conflict of law rules under German BGB. Application of the UN Convention on Contracts for the International Sale of Goods shall be excluded.

b) Any disputes arising from or in connection with an Order shall be heard exclusively by the courts in Munich, Germany. PHAG is entitled to also assert its rights in courts at Supplier‘s domicile or before any other competent court.


PAUL HARTMANN AG