Terms and conditions for the purchase of goods by the Schlenk Group
Edition 02/2010

1.        Scope of application 

1.1     These general terms and conditions of purchase apply to all enterprises within the Schlenk Group (Carl Schlenk AG, Schlenk Metallic Pigments GmbH, Schlenk Metallfolien GmbH & Co KG). The respective enterprise of the Schlenk Group which enters into a contract is referred to in the following as principal. 

1.2     These general terms and conditions apply exclusively. Adverse or aberrant terms and conditions from the GTCP of the contractor will be acknowledged by the principal only if the principal specifically and in writing agrees upon its validity.

1.3     These GTCP also apply for all future activities with the contractor as far as it is a matter of similar activities.   

2.        Conclusion of contract and offers

2.1     Offers and quotations are binding and not to be compensated for, unless explicitly stated and agreed upon differently. Unless in individual cases noted and agreed upon otherwise, the principal will bear no expenses and will pay no remuneration as to visits, planning and other advance contributions by the contractor in connection with any tendering or bidding therewith involved.  

2.2     Orders, bargains and call-offs need to be made in writing. The contractor is liable to accept the order within 14 days and confirm by handing back to the principal the designated copy of the order (acceptance of order) duly and legally signed. Call-offs become binding within the scope of planning of order-scheduling and call-off orders unless the principal contradicts within three working days after receipt.  

2.3     Verbal agreements of any kind – inclusive of subsequent alterations and amendments – are only binding if confirmed by the principal in writing.

2.4     A fax also meets the criteria of the written form.     

2.5     All contracts are being concluded on the resolutory condition that the purchaser has been fully licensed by authority.  

3.        Delivery and Performance

3.1     Unless otherwise agreed, partial delivery and performance are excluded.

3.2     The Incoterms 2002 fully apply. Unless otherwise agreed, deliveries are processed according to the Incoterm-clause DDP.

3.3     Place of delivery is either the location of the principal or any destination chosen by the principal via the order.   

3.4     All drawings, tolerances, norms, grades etc. being set by the principal basically apply. Any aberrant data or statements, e.g. illustrations, drawings, dimensions or weight specifications, handed over by the contractor, need to be accepted by the principal.   

3.5     Unless otherwise stipulated in the purchase order, the contractor has to deliver into the charge of the haulage contractor the ordered products or materials packed in compliance with statutory provisions or prescriptions. The condition of the packaging material shall conform respectively.   

3.6     If the ordered products or materials are subject to the regulation no. 1907/2006/EG (REACh) in its currently effective version, then the principal postulates the contractor to fully implement or fully have implemented this regulation. If this shall not be the case, then the contractor is liable to notify the principal explicitly in writing in the order acknowledgement or prior to delivery respectively.   

3.7     The settlement fully depends on the net-weight ascertained by the principal. Axle-load weighing or the determination of shipload-weight by full-load and empty gauging in the port of discharge are admissible. Stipulated en bloc deductions as to contamination, moisture and/or the weighing or gauging of bulk will be deducted from the determined weight to ascertain the invoice weight.

3.8     The contractor safeguards the delivered goods to be free of ionizing radiation which exceeds the characteristic radiation. Ionizing radiation originates when suitable measurement equipment observes parameters exceeding the surrounding background radiation.       

4.        Date of delivery

4.1     Agreed dates of delivery and deadlines are binding. If deliveries arrive in time depends upon time of entry at the destination determined by the principal via the order.       

4.2     If agreed deadlines are not met, legal regulations come into effect. The contractor is obligated to immediately advise the principal in writing if circumstances occur or become foreseeable which offer that the agreed deadlines will not be met. The contractor has to explain the reason and expected duration of the delay in delivery.

4.3     The unreserved acceptance of any delayed delivery or performance defines no relinquishment of any claims being entitled to the principal by delayed delivery or performance. This applies as long as the principal has received full payment as to the respective performance.   

4.4     The contractor can only plead the lack of necessary documents to be forwarded by the principal if having reminded in writing and not having received these documents within a reasonable time.  

5.        Terms of secrecy

5.1     The principal reserves the right of property and copyright as to any forwarded documents in connection with the order with the contractor, e.g. calculations, drawings, etc. The contractor undertakes to neither reveal nor make these documents accessible to any third party, unless the principal explicitly and in writing agrees upon. All documents and information are to be used exclusively in connection with the production for the principal. The documents have to be returned immediately to the principal, unless the contractor has accepted the order within the period of time determined under article 2. Has the order been taken on, all documents have to be returned unsolicited to the principal by the finalized processing of the order at the latest.           

5.2     Proprietorship and the right of use and enjoyment as to samples, quotations, drawings, documentations and similar pieces of information of any corporeal or incorporeal kind, that have been caused by the contractor on behalf of the principal, will be subrogated to the principal.   

5.3     The terms of secrecy also apply after the execution of this contract. They expire when and if all manufacturing know-how within the forwarded illustrations, drawings, calculations and other documents has become general knowledge.    

6.        Prices and terms of payment

6.1     The price marked on the order is binding.

6.2     Unless otherwise stated on the order all prices are applicable inclusive packaging, shipping and transport to the place of delivery plus the respective sales tax.

6.3     Unless otherwise agreed in writing, the principal settles the purchase price within 14 days upon receipt of invoice at three percent discount or within 30 days upon receipt of invoice after deductions.

6.4     Period of payment starts upon receipt of invoice of the contractor, but only after the principal has received complete delivery of the ordered goods. Partial payments or invoicing of partial performance need written confirmation by the principal.

6.5     Payments can not claim the acknowledgement of delivery or performance as to be conventionary.

6.6     In case of advance payments by the principal (especially deposits) the contractor undertakes to present the principal an absolute and directly liable bank guarantee to assure both performances after payment in full and partial payment to the tune of the advance payments.      

7.        Set-off rights and rights of retention; reservation of proprietary rights  

7.1     The principal shall be entitled to offset against the claims of the contractor by any debts due that are shared by all enterprises connected to the principal according to §§ 15 ff. AktG. Furthermore, the principal shall be entitled to offset his claims against any counterclaims that any of the enterprises connected to the principal according to §§ 15 ff. AktG. holds against the contractor. This shall apply even if maturities differ and one party has agreed upon payment in cash and the other party upon payment via draft or any other form of payment for processing only.     

7.2     The contractor may only offset his counterclaims against the claims of the principal or refuse or withhold performance, if these counterclaims have explicitly been accepted by the principal in writing or established as final and absolute. Eventually the contractor shall neither be entitled to offset nor to deny performance or execute the right of retention.

7.3     The delivered goods immediately become absolute property of the principal upon delivery. The principal disclaims any reservation of proprietary rights.

8.        Defects and damages

8.1 The contractor assures that all deliveries or performances meet the agreed specifications and are free from any defects which would minimize or annihilate their value or suitability according to standard or contractually assumed consumption. Characteristics of quality or property of samples, prototypes or analytical data possibly forwarded to the purchaser count as data of property, unless being excluded in writing from the contract or any further covenants.

8.2 Incoming goods inspections on site of the principal are only processed with regard to obvious defects, transport damages, completeness and identity of the delivered goods. Such defects will be reprimanded by the principal within a reasonable period. The principal reserves his right to process further incoming goods inspections. In addition the principal will reprimand if any such defects shall be identified after a duly processed course of business. Thus the contractor abstains from raising a plea of delayed notification of defects.

8.3 The principal is entitled to full compensation as legally stipulated. The principal is in either case entitled to claim removal of defects of his own choice or delivery of new goods from the contractor. The right of compensation of damages, especially the right of compensation for damages instead of performance, shall explicitly be reserved.

8.4 Warranty claims – no matter their legal ground – become time-barred 36 months after delivery. Longer contractual or legal statutory periods of limitation remain hereby unaffected. The period of limitation comes into effect with passing of the risk.

8.5 If the contractor fulfils his obligation of supplementary performance by compensation delivery, the period of limitation for the delivered goods of compensation starts anew after their delivery, unless the contractor - when complying with the missing requirements - has explicitly and appropriately reserved his right to process the compensation delivery by mere good-will.

8.6 If the principal has to cope with occurring costs due to faulty delivery of the subject-matter of the contract, in particular costs of transport, infrastructure, labor or material exceeding those usually charged for receiving inspections, the contractor has to bear these costs.

9.        Product Liability

9.1 As far as the contractor is responsible for any product damage he is liable to exempt the principal from all claims of third parties as to the first claim, if the cause applies to his domain and area of organization and if he is liable as to external representation.

9.2 In this context the contractor is also liable to refund any expenditure that may occur from or is linked to a callback by the principle. The principal will advise the contractor as far as possible and reasonable of content and extent of the callback and also offer him the chance to comment. Any other legal claims remain hereby unaffected.

9.3 The contractor is liable to procure and keep valid sufficient factory and product liability insurance during the contract period inclusive all limitation periods. If the principal is entitled to any further claims for damage, these will remain unaffected. The contractor has to provide the principal with a duplicate of the valid insurance contract on demand.

10.     Industrial property rights

10.1 If during joint developments industrial property rights, copyrights and/or confidential know-how are acquired, the buyer shall, upon payment of the purchase price, have the sole right of use not limited in time and/or in place.

10.2 The delivery and application by the principal are not to violate industrial property rights of third parties within the Federal Republic of Germany (FRG). Any claims by third parties will be forwarded from the principal to the contractor. The principal will not accept any such claims of his own accord. Thus the principal authorizes the contractor to process any legal or extrajudicial dispute against the third party.

10.3 In case of culpable breach of industrial property rights of third parties the contractor will bear all costs for fending off claims by third parties which these might bring forward relating to deliveries and performances by the contractor to the principal causing infringement of protective rights. The contractor absolves the principal from any such claims if he has to represent action upon those industrial property and/or protective rights.

10.4 If application of the delivered goods by the principal is affected by existing third-party protective rights, the contractor must at his own expense either acquire adequate permit or alter and/or exchange the affected parts of the delivery in such way that the application of the delivery will no longer be hindered by any third-party industrial property or protective rights and at the same time contractual agreements are kept.

11.     Supply and tools

11.1 Any materials supplied by the principal remain property of his. These shall only be applied according to the terms of the contract. In case of using up or mixing the principal automatically becomes jointly entitled to the new good in the ratio of the value of the principal’s good and the other used up materials at the time of the processing and during storage with the contractor.

11.2 The contractor is liable to check and store the supplied materials accurately. Aberrations, e.g. quantity, quality, etc., shall immediately be forwarded to the principal. The contractor is responsible for any loss or damage due to negligence or willful intent.

11.3 The principal reserves the right of property as to samples and workshop facilities (such as tools, forms, jigs or positioning devices); the contractor is liable to use the tools exclusively for the manufacture of the goods ordered by the principal. The contractor is also liable to insure the principal’s tools at his own expense against damages caused by fire, water and theft upon replacement value.  

12. Packaging

12.1 All packaging as well as any other kinds of trash (expendable and auxiliary materials) have to be reusable or recyclable free of charge for the principal pursuant to the regulations of the German packaging ordinance effective at a time as well as any other prescriptions.

13. Termination of the contract

13.1 If the contractor ceases payment, a preliminary liquidator is nominated, or the insolvency proceedings against the assets of the contractor be instituted, then the principal is entitled to partly or totally turn down the execution of the contract and claim compensation for default. In case of imminent or de facto insolvency the principal is entitled to keep a reasonable security deposit for the duration of the relevant limitation period in each case.

14 Final clauses

14.1 If an individual condition of this contract or these terms and conditions is or becomes completely or partly invalid, it shall in no way affect the validity of the rest of the contractual agreements.

14.2 Exclusive venue for all disputes resulting from this contract is Nuremberg. However, the principal is entitled to bring an action against the contractor also at the contractor’s court of jurisdiction.     

14.3 The Law of the Federal Republic of Germany shall exclusively apply; UN Conventions on the International sale of Goods shall be excluded.