GENERAL TERMS AND CONDITIONS OF PURCHASE

1.      Application

1.1    These Conditions of Purchase shall apply to all business transactions between J.H. Ziegler GmbH (hereinafter: “ZIEGLER”) and the supplier, even if they are not referred to in subsequent contracts.  Terms and conditions of the supplier that conflict with, supplement or deviate from these Conditions of Purchase shall not become part of the contract unless their application is expressly approved by ZIEGLER in writing.  These Conditions of Purchase shall apply even if ZIEGLER receives a delivery from the supplier without reservations whilst being aware of the supplier’s conflicting or deviating terms and conditions.

1.2    Agreements which supplement or deviate from these Conditions of Purchase and which are made between ZIEGLER and the supplier for the performance of a contract must be set out in writing in the contract.  This shall also apply to the cancellation of this requirement of the written form.

1.3    Any rights beyond these Conditions of Purchase to which ZIEGLER is entitled by law shall remain unaffected.

2.      Formation of contract and amendments

2.1    Unless otherwise agreed in writing, the supplier shall provide all offers and cost estimates free of charge.

2.2    Purchase orders, changes or additions to purchase orders and other agreements made at the time of conclusion of the contract shall not become binding until placed or made by ZIEGLER in writing or – if purchase orders are placed orally, by telephone or using other means of telecommunication – until duly confirmed in writing.  Purchase orders that are generated using automatic devices and, therefore, do not contain a name and signature shall be deemed written purchase orders.  If ZIEGLER does not respond to offers, requests or other declarations from the supplier, this shall only be deemed approval if an express written agreement to this effect has been made between ZIEGLER and the supplier.  To the extent that a purchase order contains obvious errors, misspellings or calculation mistakes, it shall not be binding upon ZIEGLER.

2.3    The supplier shall, without undue delay and in any case no later than three working days after the receipt of the purchase order, issue an order confirmation in which the price and the delivery date are expressly stated.  Should the order confirmation deviate from the purchase order, the deviations shall not be deemed agreed unless and until they are expressly confirmed by ZIEGLER in writing.  The same shall apply to any subsequent changes to the contract.  If ZIEGLER and the supplier have entered into a framework agreement concerning future deliveries, purchase orders issued by ZIEGLER shall be binding if not objected to by the supplier within three working days after they have been received.

2.4    If it turns out during the performance of a contract that deviating from the originally agreed specifications is necessary or advisable, the supplier shall so advise ZIEGLER without undue delay.  ZIEGLER shall inform the supplier without undue delay of whether it wishes the supplier to make changes to the original purchase order and, if so, what changes.  If, as a result of such changes, there is a change in the costs incurred by the supplier in performing the contract, both ZIEGLER and the supplier shall have the right to demand an appropriate adjustment of the agreed prices.

3.      Delivery

3.1    The delivery must correspond to the purchase order in terms of execution, scope, and scheduling.  The agreed delivery periods and delivery dates shall be binding.  Delivery periods shall commence on the day the purchase order is issued.

3.2    The time of receipt of the goods by ZIEGLER shall be decisive in determining whether the delivery date or the delivery period has been met.  Unless delivery “free works” (DAP or DDP, as defined by Incoterms® 2010) has been agreed, the supplier shall make the goods available in a timely manner, taking into account the time needed for loading and shipment, as agreed with the forwarding agent.

3.3    If it becomes clear to the supplier that the delivery period cannot be met, the supplier shall so advise ZIEGLER without undue delay in writing, stating the reasons for and the expected duration of the delay.  In the event of a delay in delivery, ZIEGLER shall have the right to rescind the contract, regardless of whether or not there was any negligence or wilful misconduct on the part of the supplier.  In the event of default of the supplier, ZIEGLER may demand liquidated damages in an amount equal to 0.5% of the net order value for each commenced week of delay, but not more than 5% of the net order value in total.  This shall not affect any further claims of ZIEGLER.  The loss caused by default that has to be compensated by the supplier shall be reduced by the liquidated damages paid.  ZIEGLER’s claim for delivery shall not cease to exist until the supplier has paid damages in lieu of the delivery at the request of ZIEGLER.  ZIEGLER’s acceptance of the late delivery shall not constitute a waiver of claims for damages.

3.4    Delivery before the agreed delivery date shall only be permitted with the prior written consent of ZIEGLER.  ZIEGLER may return any goods that are delivered early at the supplier’s expense or store them at the supplier’s expense until the agreed delivery date.

3.5    Unless otherwise agreed, partial deliveries and deliveries of larger or smaller quantities shall not be permitted.  ZIEGLER reserves the right to recognize such deliveries in individual cases.

4.      Transfer of risk and shipment

4.1    The supplier shall bear the risk of accidental loss or destruction of, or of an accidental deterioration in, the goods until ZIEGLER takes delivery of the goods (DDP, as defined by Incoterms® 2010).  If the supplier is obliged to carry out the set-up or assembly of the goods in ZIEGLER’s business premises, the risk shall not pass to ZIEGLER until after the goods have been put into operation.

4.2    Each delivery must be accompanied by a delivery note which contains the order and materials number, a list of the lots supplied, the designation of the goods, the quantities supplied and the weight, information about the packaging materials used and a test certificate for the goods.  ZIEGLER must immediately be given notice of shipment, such notice to contain the same information.

4.3    The supplier must observe the rules stipulated by ZIEGLER for the shipment of goods.  The goods must be packed in such a manner as to prevent damage in transit.  Packaging materials may only be used to the extent required for this purpose.  Only environmentally friendly, recyclable packaging materials may be used.

5.      Prices and payment

5.1    The price stated in the purchase order shall be binding.  Unless otherwise agreed in writing, all prices shall be “free works”, duty paid (DDP, as defined by Incoterms® 2010), including packaging.

5.2    The supplier’s invoices must state the purchase order references and the number of each single item.  Otherwise, the invoices cannot be processed and, therefore, will be deemed not received.

5.3    Payment shall be made upon ZIEGLER taking delivery of the goods and receipt of the invoice within 14 days with a 3% discount or within 60 days net.  Payment will be made subject to review of the invoice.  If a shipment is defective, ZIEGLER may withhold payment until the supplier has properly performed its obligations, without ZIEGLER forfeiting its right to rebates, discounts or similar price reductions.  To the extent that the supplier is obliged to provide materials tests, inspection reports, quality documents or other documents, the receipt of these documents shall be a further prerequisite for the acceptance of the goods.  The time allowed for payment shall not commence until all defects have been fully remedied.  If goods are delivered early, the time allowed for payment shall not commence until the agreed delivery date.  In the event of default of payment, the supplier may claim default interest at a rate of 5 percentage points above the basic interest rate, unless ZIEGLER proves that the damage actually suffered by the supplier remains below this amount.

5.4    Ownership of the goods shall be transferred to ZIEGLER free of any encumbrances when the goods are paid for, at the latest.  All payments shall be made to the supplier only.  Extended or prolonged retention-of-title clauses shall not be permitted.  The supplier shall have no right to set its own claims off against claims of ZIEGLER unless the supplier’s claims have been established in a judgment that cannot be appealed against or are undisputed.  The supplier may only assert a right to retain if its own claims and the claims of ZIEGLER are based on the same contract.

6.      Warranty and claims for defects

6.1    Unless otherwise agreed, the statutory warranty rights shall apply.

6.2    The supplier warrants that the goods supplied are state of the art and that they correspond to the agreed specifications, the applicable legal provisions and the regulations and guidelines issued by public authorities, employers’ liability insurance associations and professional associations.  The supplier must particularly comply with the EU Chemicals Regulation REACH.  The supplier must inform ZIEGLER without undue delay in writing if the supplier has any concerns about the purchase order being performed as requested by ZIEGLER.

6.3    To the extent feasible in the ordinary course of business, ZIEGLER shall examine without undue delay after taking delivery of the goods whether the goods received correspond to the purchase order in terms of quantity and type and whether any damage has been sustained in transit that can be identified externally.

6.4    If a defect is discovered during such examinations or at a later point in time, ZIEGLER shall so advise the supplier within 8 working days after the examination or after the defect has been discovered.

6.5    ZIEGLER’s approval of drawings, calculations or other technical documents of the supplier shall not affect the supplier’s responsibility for defects or the supplier’s liability under any guarantee it has given.

6.6    If the goods contain defects, ZIEGLER may, without prejudice to its statutory claims for defects, demand that the supplier repair the defects or, at ZIEGLER’s option, that the supplier deliver goods which are free from defects.  The supplier shall bear all necessary expenses for the repair or replacement delivery.

6.7    In cases where notifying the supplier of the defect and setting an – even short – period of time for remedial action is impossible due to particular urgency and/or because the damage to be expected in the absence of remedial action is excessive in relation to the warranty obligation, ZIEGLER may take the necessary measures immediately without first consulting with the supplier.

6.8    Except in cases of fraudulent intent, claims for defects shall become time-barred within 3 years unless the item has been used for a building in accordance with its normal use and has caused such building to be defective.  The limitation period shall commence when ZIEGLER takes delivery of the contractual items (transfer of risk).

6.9    If the supplier performs its obligation to take remedial action by making a replacement delivery, the limitation period shall commence anew for any goods supplied as a replacement after ZIEGLER has taken delivery of these goods.

6.10  Suppliers of goods for which replacement parts are needed shall be obliged to supply ZIEGLER upon expiry of the limitation period for another ten years with the required replacement parts, accessories and tools.

7.      Product liability

7.1    The supplier shall be obliged to indemnify and hold ZIEGLER harmless from and against any and all third-party claims under German or foreign product liability law which are based on a defect of the product delivered by the supplier if and to the extent that the supplier is responsible for the product defect and the damage suffered pursuant to the principles of product liability law.  This shall not affect any further claims of ZIEGLER.

7.2    In the cases set out in clause 7.1 above, the supplier shall bear all costs and expenses, including the cost of legal action, if any.  In particular, the supplier shall reimburse ZIEGLER for any and all expenses which ZIEGLER incurs as a result of or in connection with any precautionary measures – in particular, product warnings, an exchange of products or product recalls – which ZIEGLER takes to avoid being held liable under product liability law.  Where possible and not unreasonable for ZIEGLER, ZIEGLER shall advise the supplier of the contents and scope of the measures to be taken and give the supplier the opportunity to comment thereon.

7.3    The supplier must appropriately insure against all risks arising from product liability, including the risk of product recalls, and shall present the insurance policy to ZIEGLER as evidence, if so requested.

8.      Third-party property rights

8.1    The supplier warrants that the delivery and use of the goods do not infringe any patents, licences or other third-party property rights.

8.2    If, due to the delivery und use of the goods, ZIEGLER or ZIEGLER’s customers are held liable by a third party for infringement of any such rights, the supplier shall be obliged to indemnify and hold ZIEGLER or ZIEGLER’s customers harmless from and against these claims.  This duty to indemnify shall apply to all costs and expenses which are incurred in connection with ZIEGLER or ZIEGLER’s customers being held liable.

9.      Force majeure

9.1    If an event of force majeure prevents ZIEGLER from performing its contractual obligations – in particular, from taking delivery of the goods – ZIEGLER shall be released from its obligation to perform for the duration of the impediment and a reasonable start-up period without being liable to the supplier for damages.  The same shall apply if the performance of its obligations by ZIEGLER becomes unreasonably complicated or temporarily impossible because of unforeseeable circumstances for which ZIEGLER is not responsible, in particular, because of official acts, energy shortage or major disruptions of operations.  This shall also apply if ZIEGLER is affected by industrial action.

9.2    ZIEGLER may rescind the contract if an impediment within the meaning of clause 9.1 above lasts longer than four months and if, as a result of such impediment, the performance of the contract is no longer of interest to ZIEGLER.  At the request of the supplier, ZIEGLER shall declare after the expiry of the aforesaid four-month period whether it will make use of its right to rescind the contract or whether it will take delivery of the goods within a reasonable period of time.

10.    Confidentiality

The supplier shall be obliged to treat all information about ZIEGLER that becomes available to the supplier and is designated as confidential or can be identified as a trade or business secret due to other circumstances as confidential for an unlimited period of time and, except where required for the delivery that is to be made to ZIEGLER, shall not record, disclose or exploit any such information.  The supplier shall enter into adequate contractual agreements with the employees and agents working for it to ensure that they, too, refrain at least for the duration of the business relationship from any exploitation, disclosure or unauthorized recording of such trade and business secrets for their own purposes.

11.    Export control and customs

The supplier shall be obliged to inform ZIEGLER in its business documents of any licences that may be required for (re-)exporting the supplier’s goods pursuant to German, European and/or US-American export and customs regulations and/or the export and customs regulations of the country of origin of the supplier’s goods.  For this purpose, the supplier shall provide the following information in connection with the goods concerned at least in its offers, order confirmations and invoices:

-     the export control list number pursuant to the Export Control List (Ausfuhrliste) that is an annex to the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) or similar list numbers of any relevant export control lists;

-     for US-American goods, the ECCN (Export Control Classification Number);

-     the trade origin of its goods and of the components of its goods, including technology and software;

-     whether the goods were transported across the USA, manufactured or stored in the USA or manufactured using US-American technology;

-     the statistical product code (HS Code) of its goods; and

-     a contact person within its undertaking who can be contacted if ZIEGLER has any further questions.

At the request of ZIEGLER, the supplier shall be obliged to provide ZIEGLER in writing with all further foreign trade data in relation to its goods and their components and additionally inform ZIEGLER without undue delay (before delivering any goods concerned) in writing of any changes in the above data.

12.    Social responsibility and protection of the environment

The supplier agrees to comply with the relevant regulations on how to deal with employees, the protection of the environment and safety at work and to work towards reducing the long-term effects of its activities on human beings and the environment. For this purpose, the supplier shall implement a management system according to ISO 14001 and further develop such system, as far as possible.  Furthermore, the supplier shall observe the principles of the Global Compact initiative of the United Nations.  These principles essentially concern the protection of international human rights, the right to collective bargaining, the elimination of forced and compulsory labour and the abolition of child labour, the elimination of discrimination in employment and occupation, environmental responsibility and the prevention of corruption.  Further information about the UN Global Compact initiative is available at www.unglobalcompact.org.

13.    Governing law/place of jurisdiction

13.1. The legal relations between the supplier and ZIEGLER shall be governed by the laws of the Federal Republic of Germany.

13.2  The exclusive place of jurisdiction for all claims against businesspersons and legal persons under public law which arise from the business relationship shall be ZIEGLER’s place of business in Achern, Germany.  However, ZIEGLER shall additionally have the right to sue the supplier at the supplier’s place of business or at any other permissible place of jurisdiction.

13.3  In international business transactions, whenever a legal dispute arises out of or in connection with this agreement and its implementation, the contracting parties may choose whether to turn to the ordinary courts of law or whether to bring the matter before an arbitral tribunal.

13.4  If the parties turn to the ordinary courts of law, the exclusive place of jurisdiction for all disputes arising out of or in connection with this agreement and its implementation shall be Achern, Germany.  However, ZIEGLER shall additionally have the right to sue the supplier at the supplier’s place of business or at any other permissible place of jurisdiction.

13.5  If the parties turn to an arbitral tribunal, all disputes arising out of or in connection with the present agreement shall be finally decided in accordance with the Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS)). The DIS Arbitration Rules are available in German, English, French, Russian and Turkish, amongst other languages, at http://www.dis-arb.de/de/16/regeln/uebersicht-id0.

13.6  The arbitral tribunal shall be comprised of three arbitrators.  Unless otherwise agreed between the parties, at least one of the individual arbitrators must have studied law and completed such studies successfully.  The arbitrators must be in command of the language of the arbitral proceedings.

13.7  The language of the arbitral proceedings shall be German unless the parties agree on another language for the arbitral proceedings.

13.8  The place of arbitration shall be Achern, Germany.

14.    Miscellaneous

14.1  The supplier shall not be authorized to employ a third party to carry out an order, or any material parts of an order, unless ZIEGLER has given its prior written consent.

14.2  Any transfer or assignment of rights and obligations of the supplier to third parties shall require the written consent of ZIEGLER.

14.3  The language of the contract shall be German.

14.4  The place of performance for all obligations that are to be performed by the supplier and by ZIEGLER shall be ZIEGLER’s place of business.

November 2014

GENERAL TERMS AND CONDITIONS OF SALE

1.      Application

1.1    These General Terms and Conditions of Sale (hereinafter: “Sales Conditions”) shall apply to all business transactions between J.H. Ziegler GmbH (hereinafter: “ZIEGLER”) and the customer, even if they are not referred to in subsequent contracts.  Terms and conditions of the customer that conflict with, supplement or deviate from these Sales Conditions shall not become part of the contract unless their application is expressly approved by ZIEGLER in writing.  These Sales Conditions shall apply even if ZIEGLER makes a delivery to the customer without reservations whilst being aware of the customer’s conflicting or deviating terms and conditions.

1.2    Agreements which supplement or deviate from these Sales Conditions and which are made between ZIEGLER and the customer for the performance of a contract must be set out in writing in the contract.  This shall also apply to the cancellation of this requirement of the written form.

1.3    Any rights beyond these Sales Conditions to which ZIEGLER is entitled by law shall remain unaffected.

2.      Formation of contract

2.1    All offers shall be subject to change and non-binding unless they are expressly designated as binding offers.

2.2    Pictures, drawings, information about weight, measurement, performance and consumption and other descriptions of the goods that may be contained in the documentation which forms part of the offer shall be approximations only unless they are expressly stated to be binding.  Such items shall not constitute an agreement on, or guarantee of, an according quality of the goods.

2.3    ZIEGLER retains all property rights and copyrights in all offer documents.  Such documents may not be made available to third parties.

2.4    Orders shall not become binding until they have been confirmed by ZIEGLER by means of a written order confirmation.  Order confirmations that are generated using automatic devices and, therefore, do not contain a name and signature shall be deemed written order confirmations.  If ZIEGLER does not respond to offers, orders, requests or other declarations from the customer, this shall only be deemed approval if an express written agreement to this effect has been made between ZIEGLER and the customer.  To the extent that an order confirmation contains obvious errors, misspellings or calculation mistakes, it shall not be binding upon ZIEGLER.

3.      Delivery; delivery periods; default

3.1    The scope of the delivery shall be as set out in the written order confirmation from ZIEGLER.  Any changes to the scope of the delivery must be approved by ZIEGLER in writing to be valid.  ZIEGLER reserves the right to make changes to the construction or form of the goods to the extent that such changes are insignificant and not unreasonable for the customer.

3.2    ZIEGLER reserves the right to supply a larger or smaller quantity of goods for technical, production-related reasons, provided that the deviation does not exceed 10% of the quantity to be supplied and that the customer can reasonably be expected to accept such deviation.  ZIEGLER shall have the right to make partial deliveries.

3.3    Delivery periods must be agreed in writing.

3.4    The delivery period shall commence when ZIEGLER dispatches the order confirmation, but not before all documents, permits and approvals to be obtained by the customer have been provided in full, all technical issues have been clarified and the agreed down-payment, if any, has been received.  In order for the delivery period to be adhered to, the customer must timely and properly perform its other obligations.

3.5    An agreed delivery period shall be deemed met if the goods have left the business premises by the time the delivery period expires or – if the customer has announced that it will refuse acceptance and the goods have not, therefore, left the business premises – ZIEGLER has given notice that the goods are ready for dispatch.  The delivery shall be conditional upon ZIEGLER being timely and properly supplied by its own suppliers.

3.6    If the failure to comply with delivery periods is due to force majeure or other obstacles for which ZIEGLER is not responsible, such as war, terrorist attacks or import and export restrictions, including restrictions affecting ZIEGLER’s suppliers, the agreed delivery periods shall be extended for the duration of the existence of such obstacles.  This shall also apply if ZIEGLER and/or its suppliers are affected by industrial action.

3.7    If the customer and ZIEGLER have entered into a fixed-term framework agreement regarding future deliveries and the customer fails to order the goods in a timely manner, ZIEGLER may, after a reasonable additional period of time set for performance has expired, deliver the goods and issue an invoice, rescind the contract or – if the customer has acted wilfully or negligently – claim damages in lieu of performance.

3.8    To the extent that the goods were delivered to the customer on Euro pallets or wire pallet containers (load carriers), the customer shall be obliged to return the same number of load carriers of the same type and quality to ZIEGLER at the place where the original delivery occurred.

4.      Transfer of risk

4.1    Unless expressly otherwise agreed, delivery shall be “ex works” (EXW, as defined by Incoterms® 2010), which means that the risk of accidental loss or destruction of, or of an accidental deterioration in, the goods shall pass to the customer as soon as the goods have been handed over to the person in charge of carrying out the transport or have left the warehouse of ZIEGLER for shipment.  This shall also apply if partial deliveries are made or ZIEGLER has assumed further obligations, such as the transport costs or the assembly of the goods at the customer’s place.  At the request and expense of the customer, ZIEGLER shall insure the goods against the risks specified by the customer by taking out a transport insurance policy.

4.2    If the customer defaults on its obligation to take delivery of the goods or breaches other duties to cooperate, ZIEGLER may claim damages for the losses suffered, including additional expenses, if any, in the sum of 0.5% of the price of the goods included in the delivery, at maximum, however, in the total sum of 5% of the price of the goods included in the delivery.  The contracting parties may prove that a larger or smaller amount of additional expenses was actually incurred.  The risk of accidental loss or destruction of, or of an accidental deterioration in, the goods shall pass to the customer at the time the customer starts to default on its obligation to take delivery of the goods.

4.3    Without prejudice to the customer’s claims for defects, if any, the customer shall be obliged to take delivery of the goods supplied even if they contain minor defects.

5.      Prices

5.1    The agreed price shall be the price in euros that is stated in the order confirmation, plus value-added tax. The statutory value-added tax is not included in the price and shall be stated separately in the invoice at the statutory rate which applies on the date of issue of the invoice.

5.2    Unless specifically otherwise agreed, all prices are “ex works” (EXW, as defined by Incoterms® 2010), excluding packaging, freight and insurance.

6.      Terms of payment

6.1    Unless otherwise agreed in writing, the gross price plus the cost of packaging, freight and insurance, where applicable, shall be payable without any deduction within 30 days of the invoice date.  The deduction of a discount for prompt payment must be agreed in writing.

6.2    A payment shall be deemed made when ZIEGLER is able to dispose of the amount at its place of business.  If ZIEGLER accepts means of payment other than cash, payment shall again be deemed made when the relevant sum has been credited unconditionally to the bank account of ZIEGLER and/or when ZIEGLER is able to dispose of the amount owed.

6.3    If the time allowed for payment is exceeded, ZIEGLER may charge default interest at the rate of 9 percentage points above the base rate of the European Central Bank.  This shall not affect ZIEGLER’s right to assert further claims for damages.

6.4    If the customer defaults on a payment, ZIEGLER may demand immediate payment in cash of all claims which result from the business relationship and are due and not subject to any defences.

6.5    If the customer defaults on its obligation to take delivery of the goods, ZIEGLER shall have the right, after setting an additional period of 12 days for performance, to issue an invoice for the goods that could not be delivered.  As a result of the issue of such invoice, the purchase price shall become due and payable in full.  The contracting parties’ further rights shall remain unaffected.

6.6    The customer shall have no right to set its claims off against claims of ZIEGLER or to exercise a right to retain with regard to its claims unless the customer’s claims are undisputed or have been established in a judgment that cannot be appealed against.  Furthermore, the customer may only exercise a right to retain if the customer’s claims and the claims of ZIEGLER are based on the same contract.

6.7    ZIEGLER shall have the right to make the performance of outstanding deliveries or services contingent upon the customer paying in advance or providing security if circumstances become known after the conclusion of the contract which could significantly reduce the customer’s creditworthiness and jeopardize the payment of ZIEGLER’s outstanding claims under the relevant contract by the customer.  This shall apply accordingly if the customer refuses to pay, or fails to pay, any outstanding claims of ZIEGLER and undisputed objections against ZIEGLER’s claims or objections that have been established in a judgment which cannot be appealed against do not exist.

7.      Claims for defects

7.1    The customer’s rights arising from defects shall be contingent upon the customer performing its statutory obligations to inspect and give notice of defects (Sections 377 and 381 German Commercial Code), in particular, on the customer inspecting all goods supplied upon receipt and giving ZIEGLER written notice of any obvious defects and of defects that could be identified during such inspection without undue delay after the goods were received.  The customer must provide ZIEGLER with written notice of any hidden defects without undue delay after such defects have been discovered.  In order for such notice to be deemed given without undue delay, it must be given within 8 working days after the delivery if the defects are obvious or could be identified during a proper inspection, and within 8 working days after the discovery if the defects were hidden; this deadline is met if ZIEGLER receives the notice or complaint before the expiry of the aforesaid period.  If the customer fails to carry out a proper inspection and/or give notice of defects, ZIEGLER shall not be liable for the defect.  When giving ZIEGLER notice of defects, the customer must provide a written description of the defects.

7.2    Claims for a repair or replacement delivery shall be excluded in the event of minor deviations in quality, colour, width, weight, equipment or design which cannot be avoided technically. With regard to weight-tolerances of the nonwoven, deviations of +-10 g/m² for nonwoven with a weight less than 100 g/m² and +-10% for nonwoven with a weight over 100 g/m² are valid. The weight is measured as an average over the complete width of the product. Length-deviations are +-5% but minimum +- 4 cm for rolls and inline-cutted products. Please check the relevant technical data sheet for other agreements. Size-tolerances of offline-cutted parts depend on the outline of the part and the consistence of the material. The data in the offer is binding.

7.3    If the goods contain defects, ZIEGLER may, at its option, remedy the defects or deliver goods which are free from defects.

7.4    If the item supplied is not at the place of delivery, the customer shall bear all additional costs and expenses which ZIEGLER incurs as a result of this fact when remedying defects unless such relocation is in line with the agreed use.

7.5    Rights arising from defects shall not exist

-     in the event of natural wear and tear;

-     if the relevant quality of the goods or the damage is due to improper handling, storage or maintenance or excessive strain or use;

-     if the relevant quality of the goods or the damage is due to force majeure, to extraordinary external impacts that are not intended according to the contract or to the goods being used in a manner which does not correspond to their contractually intended or customary use.

ZIEGLER shall not be liable for any quality of the goods which is due to the manner of processing or the material chosen if the customer requested a design or material that is not included in ZIEGLER’s range of possible designs or materials.

7.6    ZIEGLER shall be liable without limitation for damage resulting from breach of guarantee or from death, bodily injury or damage to health.  The same shall apply to wilful misconduct and gross negligence, mandatory statutory liability for product defects (especially under the German Product Liability Act), and liability if defects were concealed with fraudulent intent.  In cases of slight negligence, ZIEGLER shall only be liable if material obligations are violated which result from the nature of the contract and are of particular importance for achieving the purpose of the contract.  If such obligations are violated, and also in the event of default or if performance is impossible, ZIEGLER’s liability shall be limited to the damage that can typically be expected with this contract.

7.7    The limitation period for the customer’s claims for defects shall be 12 months and shall commence when the goods are delivered (transfer of risk).  Except where agreed out of goodwill, the limitation period shall not start anew as a result of a repair or replacement delivery.  The above limitation period shall also apply to tort claims which are based on a defect of the goods.  ZIEGLER’s unlimited liability for damage resulting from breach of guarantee or from death, bodily injury or damage to health, for wilful misconduct and gross negligence and for product defects shall remain unaffected.

8.      Retention of title

8.1    The goods supplied shall remain the property of ZIEGLER until all claims of ZIEGLER against the customer which arise from the business relationship have been paid in full.  The customer shall be obliged to handle the goods which are subject to this retention-of-title clause with due care for as long as title is retained.  In particular, the customer shall be obliged to sufficiently insure the goods at the customer’s own expense at their replacement value against damage by fire, water and theft.  The customer hereby assigns to ZIEGLER all claims for compensation arising from such insurance.  ZIEGLER hereby accepts this assignment.  If assigning such claims is not allowed, the customer hereby instructs the insurer to make payments, if any, only to ZIEGLER.  This shall not affect any further claims of ZIEGLER.  Upon request, the customer shall provide ZIEGLER with evidence of the conclusion of the insurance contract.

8.2    The customer may sell the goods which are subject to this retention-of-title clause only in the ordinary course of business.  The customer shall not be authorized to pledge the goods which are subject to this retention-of-title clause, to transfer them by way of security or to make any other dispositions which jeopardize the ownership of ZIEGLER.  In the event of attachments or other encroachments by third parties, the customer must notify ZIEGLER without undue delay in writing and provide all the information needed, advise the third party of ZIEGLER’s property rights and assist with any measures taken by ZIEGLER to protect the goods which are subject to this retention-of-title clause.

8.3    The customer hereby assigns to ZIEGLER its claims arising from the resale of the goods, along with all ancillary rights, irrespective of whether the goods which are subject to this retention-of-title clause are resold without or after further processing.  ZIEGLER hereby accepts this assignment.  If assigning such claims is not allowed, the customer hereby irrevocably instructs the third-party debtor to make payments, if any, only to ZIEGLER.  The customer shall be authorized, subject to revocation, to collect the claims which have been assigned to ZIEGLER in its own name as a trustee acting on behalf of ZIEGLER.  All amounts collected must immediately be remitted to ZIEGLER.  ZIEGLER may revoke the customer’s authority to collect claims and the customer’s right to resell the goods if the customer fails to properly perform its payment obligations to ZIEGLER, defaults on one or more payments or stops payment or if a petition is filed to institute insolvency proceedings against the assets of the customer.

8.4    Any processing or alteration by the customer of the goods which are subject to this retention-of-title clause shall always be carried out on behalf of ZIEGLER.  The customer’s right to acquire ownership of the goods which are subject to this retention-of-title clause shall continue to exist as a right to acquire ownership of the processed or altered item.  If the goods are processed together with items that are not owned by ZIEGLER, ZIEGLER shall acquire co-ownership of the new item in a proportion that corresponds to the ratio of the value of the goods supplied and the value of the other items processed at the time of processing.  In all other respects, the item created through processing or alteration shall be governed by the same provisions that also apply to the goods which are subject to this retention-of-title clause.

8.5    At the request of the customer, ZIEGLER shall be obliged to release the security interests to which ZIEGLER is entitled to the extent that the realizable value of such security interests exceeds ZIEGLER’s claims arising from the business relationship with the customer by more than 10%, upon deduction of the mark-downs customary in the banking business.  ZIEGLER may choose which security interests it wishes to release.

8.6    In the event that goods are supplied to destinations with other legal systems where the retention-of-title provisions set out in clauses 8.1 to 8.5 above do not provide the same degree of protection as they offer in the Federal Republic of Germany, the customer hereby grants ZIEGLER an equivalent security interest.  If the creation of such a security interest requires further measures, the customer shall do whatever is necessary to grant ZIEGLER such security interest without undue delay.  The customer shall assist with all measures that are required for, and conducive to, the validity and enforceability of such security interests.

9.      Rescission

9.1    If the customer breaches the contract, in particular, if the customer defaults on its payment obligations, ZIEGLER shall – without prejudice to its other contractual and statutory rights – have the right to rescind the contract after a reasonable additional period of time set for performance has expired.

9.2    ZIEGLER shall have the right to rescind the contract without setting an additional period of time for performance if the customer stops payment, files for insolvency or applies for the institution of similar proceedings against its assets for debt settlement purposes.

9.3    After notice of rescission has been given, the customer must grant ZIEGLER or ZIEGLER’s agents without undue delay access to the goods which are subject to the retention-of-title clause and surrender such goods.  For the purposes of the settlement of ZIEGLER’s due claims against the customer ZIEGLER may sell the goods which are subject to the retention-of-title clause otherwise after a timely announcement to this effect.  Upon deduction of reasonable selling costs, the proceeds from sale shall be credited against the customer’s liabilities.

9.4    The provisions of this clause 9 shall not operate to limit any statutory rights or claims.

10.    Confidentiality

10.1  The customer shall be obliged to treat all information about ZIEGLER that becomes available to the customer and is designated as confidential or can be identified as a trade or business secret due to other circumstances as confidential for an unlimited period of time, and the customer may not record, disclose or exploit any such information.

10.2  The customer shall enter into adequate contractual agreements with the employees and agents working for it to ensure that they, too, refrain for an unlimited period of time from any exploitation, disclosure or unauthorized recording of such trade and business secrets for their own purposes.

11.    Governing law/place of jurisdiction

11.1. The legal relations between the customer and ZIEGLER shall be governed by the laws of the Federal Republic of Germany, without regard to the United Nations Convention on Contracts for the International Sale of Goods (CISG).

11.2  The exclusive place of jurisdiction for all claims against businesspersons and legal persons under public law which arise from the business relationship shall be ZIEGLER’s place of business.  However, ZIEGLER shall additionally have the right to sue the customer at the customer’s place of business or at any other permissible place of jurisdiction.

11.3  In international business transactions, whenever a legal dispute arises out of or in connection with this agreement and its implementation, the contracting parties may choose whether to turn to the ordinary courts of law or whether to bring the matter before an arbitral tribunal.

11.4  If the parties turn to the ordinary courts of law, the exclusive place of jurisdiction for all disputes arising out of or in connection with this agreement and its implementation shall be Achern, Germany.  However, ZIEGLER shall additionally have the right to sue the customer at the customer’s place of business or at any other permissible place of jurisdiction.

11.5  If the parties turn to an arbitral tribunal, all disputes arising out of or in connection with the present agreement shall be finally decided in accordance with the Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS)). The DIS Arbitration Rules are available in German, English, French, Russian and Turkish, amongst other languages, at http://www.dis-arb.de/de/16/regeln/uebersicht-id0.

11.6  The arbitral tribunal shall be comprised of three arbitrators.  Unless otherwise agreed between the parties, at least one of the individual arbitrators must have studied law and completed such studies successfully.  The arbitrators must be in command of the language of the arbitral proceedings.

11.7  The language of the arbitral proceedings shall be German unless the parties agree on another language for the arbitral proceedings.

11.8  The place of arbitration shall be Achern, Germany.

12.    Miscellaneous

12.1  Any transfer or assignment of rights and obligations of the customer to third parties shall require the written consent of ZIEGLER.

12.2  The language of the contract shall be German.

12.3  The place of performance for all obligations that are to be performed by the customer and by ZIEGLER shall be ZIEGLER’s place of business.

13.    Privacy

13.1  The customer agrees to the storage of personal data of his employees in the context of the business relationship with ZIEGLER, in compliance with the data protection laws, in particular the BDSG and the GDPR. A transfer of data to third parties does not take place, as far as this is not necessary for the execution of the contract.

13.2  The customer assures that he has obtained the consent of the employees to process their personal data and releases ZIEGLER from any third-party claims that they make to ZIEGLER in this regard.

13.3  The rights of data subjects regarding data processing arise in particular from the following standards of the GDPR:

Article 7 (3) - Right to revoke a data protection consent

Article 15 - Right to information of the data subject, right to confirm and provide a copy of the personal data

Article 16 - Right to rectification

Article 17 - Right to be erased ('Right to be forgotten')

Article 18 - Right to restriction of processing

Article 20 - Right to data portability

Article 21 - Right of opposition

Article 22 - Right not to be subject to a decision based solely on automated processing, including profiling

Article 77 - Right to complain to a supervisory authority

13.4 In order to exercise the rights, the person concerned is requested to contact ZIEGLER by e-mail or, in the event of a complaint, to contact the responsible supervisory authority.

May 2018