Terms and Conditions of Purchase Töpfer Kulmbach GmbH

I. General Terms - Scope
1. Our Terms and Conditions of Purchase apply exclusively for our orders. We do not accept any terms and conditions of the supplier contradicting or deviating from our Terms and Conditions of Purchase unless we expressly agree to do so in writing. This shall also apply in cases where the supplier states the he will only deliver on terms deviating from or supplementing ours. Our Terms and Conditions of Purchase apply even if we implicitly accept the supplier’s delivery/performance despite our knowledge of terms and conditions of the supplier contradicting, supplementing or deviating from our Terms and Conditions of Purchase.
2. All agreements between us and the supplier in the performance of this contract shall be set out in writing. Only orders placed in writing are therefore valid. Any orders placed verbally and any changes to the contract shall require our written confirmation.
3. Our Terms and Conditions of Purchase also apply for all future transactions with the supplier.

II. Orders – Order Documents
1. The supplier is obligated to accept our order within 2 weeks, otherwise we shall be released from the contract.
2. We reserve ownership and copyright in all samples, illustrations, drawings, calculations and other documents provided by us; these shall not be made available to third parties without our express written approval and are to be used exclusively for production based on our order. After processing the order they shall be returned to us without prompt.

III. Delivery Time
1. Delivery by a fixed date:
a) Delivery times specifying a fixed date shall be deemed transactions for delivery by a fixed date insofar as the order contains the addendum “transaction for delivery by a fixed date (Sections 361 German Civil Code [BGB], 376 German Commercial Code [HGB])”.
b) In case of late delivery our claim for damages comprises our costs for third party services/covering purchases. In order to fill our own orders in due time we shall be entitled to call
upon third party services of better quality than that owed by the supplier and/or more expensive third party services. The supplier has the right to prove that the covering purchase could have been made at a lower cost if the necessary care had been taken.
2. All other specified delivery dates not subject to an agreement for delivery by a fixed date shall also be binding and must be observed without fail.
a) Delivery times commence on the day of the order (date on the order form).
b) As soon as the supplier realises that he cannot deliver on time, he shall immediately notify us thereof, stating the reasons and the anticipated time of delay.
Should he fail to do so, he shall also be liable for any damages incurred thereby if he is not responsible for the delay, unless the damage would have occurred even if delivery had been made on time.
3. In all other respects the statutory provisions apply.

IV. Prices – Payment Terms
1. The price specified in the order is binding. Unless otherwise agreed in writing, delivery shall be “carriage and duty paid” and shall also include packaging costs, postage, freight charges, insurance and other transport costs. Statutory VAT is not included in the price.
2. Any return of packaging requires a separate written agreement. The supplier shall bear the costs for the disposal of packaging materials. We are entitled to demand compensation for disposal costs in line with industry standards, in all other respects at our equitable discretion.
3. Unless otherwise agreed in writing, we pay the purchase price at a 3% discount within 45 days of receipt of the goods and invoice or net within 90 days of receiving the invoice. Payment shall be made in cash or cash equivalents of our choice to the point of payment designated by the supplier.
4. Invoices shall be sent in duplicate immediately after shipping the goods, whereas the day the invoice is received (postmark) shall be relevant for the commencement of the discount or payment term, no earlier date, however, than the day the goods are received.
5. The supplier may only assign claims against us to third parties if he does so in writing and if he has notified us thereof in writing. This shall also apply for further assignments.

V. Assumption of Risk, Transport, Place of Performance
1. Unless otherwise agreed in writing, delivery shall be made duty paid to the Kulmbach plant or another receiving station designated by us on the order.
2. The supplier bears the risk up to the receiving station. This shall also apply in case of carriage forward delivery.
3. Place of payment and performance for all obligations arising from the supply contract shall be Kulmbach.

VI. Inspection for Defects - Warranty
1. Unless a separate quality agreement has been concluded between us and the supplier, the following shall apply with regard to our obligation to inspect the goods and give notice of defect:
a) We are obligated to inspect the goods as to quality and quantity within a reasonable period, however, not before the goods have arrived in our plant or at the receiving station designated by us.
b) We shall only be bound by a specified notice period insofar as said period allows for a proper inspection of the delivered goods with respect to compliance with the contractual specifications.
c) Notice of defect shall be deemed given in time insofar as it is given within 12 working days after discovery of the defect(s).
d) The quantity we determine on inspection shall be deemed delivered.
2. We are entitled to the full statutory warranty rights; independent thereof we have the right to demand, at our discretion, the elimination of defects or a substitute delivery from the supplier. In this case the supplier is obligated to bear all costs required for the elimination of defects or for the substitute delivery. We expressly reserve the right to claim damages, in particular damages due to non-performance.
3. The warranty period shall be 12 months as of the passing of risk.
4. Defects in part of the delivered goods entitle us to reject the entire consignment if the remaining part is of no interest to us.
5. The goods we rejected are sent back to the supplier at his expense and risk. Any damage and loss shall be at the expense of the supplier.

VII. Product Liability – Third Party Liability
1. To the extent the supplier is responsible for damage to a product he shall insofar be under the obligation to indemnify us upon first demand against claims for damages by third parties if the cause lies within his sphere of control and organization and he himself is liable in relation towards third parties.
2. In this context the supplier is also obligated to reimburse any expenses pursuant to Sections 683, 670 BGB resulting from or in connection with a recall action carried out by us. We shall, as far as possible and reasonable, inform the supplier regarding the content and extent of the recall action to be taken and provide the supplier with an opportunity to comment.
3. The supplier undertakes to maintain product liability insurance with a limit of indemnity of € 5.0 million per person/damage. If we are entitled to more extensive damage claims, said rights shall remain unaffected.

VIII. Industrial Property Rights
1. The supplier warrants that no third party rights are infringed in connection with his deliver/performance.
2. Should the supplier nevertheless be held liable by a third party, the supplier shall be obligated to indemnify us against these claims upon first written request.
3. The supplier’s obligation to indemnify refers to all costs we necessarily incur as a result of or in connection with a third party claim.

IX. Retention of Title
1. If we provide the supplier with parts, we reserve title thereto. Any processing or alteration by the supplier is undertaken for our benefit. Should the retained goods be processed with other objects not belonging to us, then we shall acquire co-ownership of the new item in proportion of the value of our item to that of the other processed objects at the time of processing.
2. Should the item provided by us be inseparably mixed with other objects not belonging to us, then we shall acquire co-ownership of the new item in proportion of the value of the retained item to that
of the other mixed items at the time of intermixing. Should the items be mixed in such a way that the item of the supplier has to be considered the main thing, then it is agreed that the supplier shall transfer proportionate co-ownership to us. The supplier shall safeguard our sole ownership or co-ownership for us.

X. Secrecy
The supplier is obligated to maintain strict secrecy concerning all illustrations, drawings, calculations and other documents and information he received from us. Such documentation andinformation may only be disclosed to third parties with our express approval. The obligation to secrecy shall also apply after termination of this contract. It shall not expire until and to the extent that the production know-how contained in the illustrations, drawings, calculations and other documents becomes generally known.

XI. Changes
Any materials in the ordered consignment, no matter which kind, may only be changed with our written approval.

XII. Place of Jurisdiction – Applicable Law – Data – Severability
1. Insofar as both parties are qualified merchants, place of jurisdiction shall be our registered place of business; however, we also have the right to bring action against the supplier at his general place of jurisdiction.
2. All goods and services are exclusively subject to the substantive laws of the Federal Republic of Germany.
3. We store data – also personal data – insofar as this is necessary in the performance of the contract. This is done in compliance with the provisions of the Federal Data Protection Act (BDSG). The supplier hereby approves of such storage.
4. Should one of the provisions of these Terms and Conditions of Purchase be or become invalid or show gaps or omissions, this shall not affect the validity of all other provisions.

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