General Terms and Conditions of Purchase (GTCPs)

of SCA Schucker GmbH & Co. KG, July 2009

1 Application Our GTCPs exclusively govern all of our supplier's deliveries, services (hereinafter referred to as "Products") and offers. They form part of all the contracts that we conclude with our supplier regarding the Products that he offers; they only apply to companies as set forth in German Civil Code [BGB] § 310 (1). These GTCPs apply even if not specifically referenced. The supplier's or third parties' terms and conditions of business shall not apply, even if we do not object to them separately. They do not become part of the contract even if we take delivery of Products.

2 Contract The supplier's offer shall remain open for four weeks. The supplier's offer must conform to the quantity, quality and manner of implementation specified in our inquiry or request for proposals; the supplier must expressly identify any deviation in writing. We may cancel the purchase order if we do not receive the order confirmation without unreasonable delay. If the order confirmation has terms other than those in the purchase order, we shall only be bound if we consent to the change in writing. Accepting or paying for the Products does not constitute consent.

We may request modifications to the contract even after the contract is formed, provided they are reasonable for the supplier. Contract modifications must make reasonable allowances for the impacts on both parties, particularly with respect to cost increases or decreases and delivery dates. Any price increases due to a change in performance must be communicated to us without unreasonable delay and may only be put into effect if written consent is given prior to performance.

The supplier may not outsource the whole order or significant parts thereof, assign rights granted hereunder to third parties or change the production location without our prior written consent. The foregoing does not apply to assignments of money claims. If we grant consent, the supplier shall remain liable for performance hereunder.

3 Prices/payment The price stated on the purchase order shall be binding. Unless otherwise agreed upon, the price includes free domicile delivery, Incoterms 2000 DDP, including transportation, insurance, customs duties and/or VAT.

Prices are irrevocable until the contract is performed in full, unless they decrease in our favour. If the supplier's prices as per his list prices decrease between the placing of the order and the expiration of the payment periods, this price decrease shall also apply with respect to us. The supplier must notify us of the decrease and prove the amount of the decrease in the event of a dispute.

Unless otherwise agreed upon, we shall pay within 14 days with a 3 % prompt payment discount or within 60 days net following delivery of the Products and receipt of the invoice. Payment does not constitute acknowledgement that the Products are as contracted.

We have rights of set-off and retention to the extent allowed by law, even with respect to claims held by or against our affiliated companies. The supplier may only exercise a right of retention or set-off if his claims against us are undisputed or upheld by final and absolute judgement. Claims held against us may only be assigned with our written consent. German Commercial Code [HGB] § 354a remains unaffected thereby. If we grant consent, the supplier shall remain liable for performance hereunder. We are entitled to assign rights granted hereunder to third parties.

We can only process invoices if they contain the order number given in our purchase order as specified therein; the supplier is responsible for all the consequences resulting from non-compliance with this obligation, unless the supplier can prove that the non-compliance cannot be attributed to him.

4 Delivery Agreed-upon delivery times are binding. Unless otherwise agreed upon, deliveries must be made free domicile to the delivery address as per the Incoterms 2000 DDP, including insurance. The supplier may not make performance contingent on deliveries by its own sub-suppliers. Deliveries of 5 pallets or more must be announced 1-2 days prior to delivery.

Delivery times refer to the time of the handover at our specified receiving point. For the delivery to be considered timely, the statutorily and contractually required documentation must also be handed over in German; this can include, for example, approvals, inspection reports, declarations of conformity, DIN or EN material safety data sheets.

The supplier may only plead the absence of necessary documents, data, supplies etc. which we are to provide if the supplier has given a timely written reminder to supply such items and failed to receive them by a reasonable deadline. The supplier must notify us forthwith in writing of any possible delay in delivery. Our acceptance of a delayed delivery does not constitute a waiver of claims for damages.

Force majeure, strikes or other circumstances beyond the supplier's control that make performance hereunder impossible in whole or in part within the stipulated delivery time shall entitle us to withdraw from or suspend the contract in whole or in part without thereby making us liable to the supplier for any claims.

We must be given timely advance notice of any and all transport costs so we can arrange for the Products to be picked up by ourselves if desired. If we have agreed to ex works pricing from the supplier's factory/distribution center, or if we agree to pay the freight, the shipment must be transported either at the lowest possible cost at the time or as set forth in the corresponding routing order. If we agree to bear costs separately, the packaging must be billed at cost. If we pay the freight, the forwarder must be informed that we waive any and all cartage and forwarding insurance (RVS/SVS) as per German Forwarders' Standard Terms and Conditions (ADSp) § 21, and do not acknowledge any amounts charged therefor.
Partial or early deliveries are not allowed, unless we have agreed to them in writing. If delivery is made early, we reserve the right to return the shipment at the supplier's expense or to not make payment until the agreed-upon due date. If delivery is made early and we do not return the shipment, the Products will be stored on our premises at the supplier's risk and expense until the delivery date.

If the delivery is delayed, we are entitled to demand compensation for the delay amounting to 1 % for each whole or partial week of the delay, this to total no more than 5 % of the declared value of the Products affected by the delay; this is without prejudice to other legal rights and remedies. The supplier is entitled to prove that he is not in breach of any duties or that no or significantly lower damages were sustained.

5 Defects The supplier will deliver the Products without any defects as to title or quality, in conformity with the current state of the art, and while consistently complying with all applicable environment regulations in force at the locations where he knows the Products will be used. The supplier will ensure compliance with all legally mandated or agreed-upon technical data, DIN or EN standards, quality assurance requirements, specifications, certifications and quality standards, REACH requirements and any other standards which we may stipulate. The supplier must present us with proof of compliance free of charge on request.

In the event of defects, we can at our option assert all statutory rights and remedies without limitation. We expressly reserve the right to demand compensation for damages, including, but not limited to, damages in lieu of specific performance. The deadline for notifying the supplier of defects is 2 weeks from the date the Products are delivered to our specified receiving point, or from the date agreed upon in writing, whichever comes later. Accepting or approving samples or specimens does not constitute a waiver of any warranty claims.

The supplier shall pay all necessary costs incurred to cure defects, including, without limitation, transportation, labour and materials costs. We are entitled, but not obligated, to cure defects ourselves at the supplier's expense if the supplier is in default.

If the supplier's bankruptcy occurs or appears imminent, we are entitled to retain fair and reasonable security for the duration of the relevant defect-curing periods.

The supplier warrants that it has checked for third-party property rights in the destination countries for the Products and that no third-party property rights are being infringed. The supplier will hold us harmless from any legal actions brought by third parties for infringement of industrial property rights. The supplier must reimburse us for all reasonable costs of a legal action. We may at the supplier's expense obtain the necessary permission to use, distribute, etc. the Products from the property rights holder if this is expected to cost significantly less than the damage sustained by rolling back the transaction. We are, however, under no obligation to do so.

The prescription period is 36 months from the passage of risk. This does not apply to goodwill gestures by the supplier or entirely insignificant defects. The prescription period will be suspended while the supplier attempts to repair the defective Products.

6 Liability The supplier is liable to us for all negligence and wilful misconduct, including on the part of his agents, servants and delegates. He may not limit or restrict his liability.

If a legal action is brought against us in connection with Products or under product liability laws, the supplier shall hold us harmless to the extent it would otherwise be directly liable. The foregoing also applies if the action is brought due to subsequent changes in the supplier's advertising claims or product descriptions. This is without prejudice to any other rights to remedies over.

The supplier shall bear all costs incurred in connection with recalls for which he is responsible (including, without limitation, selection costs). As part of his liability for damages, the supplier is also required to reimburse any expenses incurred for or in connection with a recall conducted by us in accordance with German Civil Code § 683, § 670 or German Civil Code § 830, § 840, § 426. Wherever possible and reasonable, we will notify the supplier of the scope and substance of the recalls and give him an opportunity to respond. This is without prejudice to other statutory rights and remedies. The supplier will obtain a reasonable amount of insurance coverage for all product liability risks, including the risk of recall. The supplier will furnish proof thereof on request.

The supplier agrees to supervise his employees and other third parties that he may employ at our facilities and on our business premises and to ensure compliance with the specific statutory, regulatory and operational regulations that apply to such facilities, including, but not limited to, occupational safety and health regulations and rules on the proper registration of persons employed by the supplier. These regulations are binding and form an integral part of the contract.

7 Ownership rights All Products become our property upon payment. The supplier guarantees that there are no adverse retentions of title or other third-party rights with respect to the Products. The supplier must expressly notify us if this is not the case.

The supplier may only retain title in respect of our payment obligation for the relevant Products. A retention of title may not be expanded to other goods under an open balance ["erweitert"] or extended to new goods manufactured from the Products ["verlängert"].
Goods are always processed or modified by/for us as the manufacturer; however, we incur no obligation thereby. If our retained goods are processed or inseparably mixed with another party's items, we shall acquire co-ownership in the new thing proportionate to the value of our goods (cost price plus VAT). The supplier shall hold the exclusively owned or co-owned property in safe custody for us free of charge.

If we hold security interests that exceed the cost price of all our unpaid retained goods by more than 10 %, we must release the security interests of our choosing at the supplier's request.

Pallets, tools, jigs, machines, aids and means of transport provided by us remain our property and must be returned.  

8 Non-disclosure/Intellectual Property rights The supplier grants us a perpetual, exclusive, irrevocable right to use and exploit any copyrights and/or industrial property rights which he may hold. We are solely and exclusively entitled to use and/or exploit any work results prepared for us.

We reserve ownership rights and/or copyrights in and to any technical and commercial documents provided or requested by us, including, but not limited to, design plans, data sheets, sketches, samples, dummies and software custom-made to our specifications (including the source code).

The supplier agrees to hold in strict confidence, and to only use for filling the order, all the contents of the contract, including, but not limited to, prices, discounts, know-how, other business secrets and any and all technical and commercial documents that may have been provided. The confidentiality obligation will survive the winding-up of this contract. This does not, however, apply to content which is publicly known without violating the confidentiality obligation. The content may only be made available to third parties with express written consent. They must be notified of the ownership rights and copyrights and bound to secrecy in writing.

After the order has been filled or if no contract is formed, the supplier must return all documents and copies to us and delete all stored data, unless it is required by law to retain them. In this case, he must return/delete these items after the retention period expires.

The supplier may not refer to his business relationship with us, including, without limitation, for advertising purposes, without prior written consent.

9 Final provisions These provisions also apply to companies affiliated with the supplier within the meaning of German Companies Act § 15 [AktG]. The supplier shall bind his affiliated companies to observe these provisions.

Amendments and modifications hereto must be made in writing unless they are based on a separate agreement. This also applies to a waiver of the written form requirement. Should provisions of these terms and conditions be or become invalid, the validity of the remaining terms and conditions will be unaffected thereby.

These terms and conditions are governed by the laws of Germany, exclusive of the provisions of the UN CISG. The place of our registered office is the place of performance, unless otherwise indicated by the purchase order. If the supplier is a merchant, the place of our registered office is the exclusive place of jurisdiction. We are also entitled to file suit against the supplier at the court where he is domiciled.