Terms of purchase

Version of 14 May 2018

Note: The terms and conditions have been reviewed and adjusted in accordance with the requirements of the General Data Protection Regulation

General

These Terms of Purchase form an integral part of all of our commercial/business contracts. They also apply to existing and future business relationships. No further reference to these Terms of Purchase will be necessary when future orders are placed.

The following Terms of Purchase apply together with the „Supplier Code of Conduct”. The components set out in this Supplier Code of Conduct are an integral part of the contract. Both documents are available on the internet at the following link: www.lohmann-koester.de Contradictory standard terms and conditions, in particular terms of sale, are hereby expressly rejected with respect to commercial/business transactions. They will only apply if approved by us in writing. Deviating agreements, in particular ones reached verbally, will likewise only be binding if confirmed by us in writing. The conclusion of a contract will not fail due to contradictory standard terms and conditions.

Orders, prices

Orders may only be placed in writing (letter, fax, PC fax, e-mail). Orders placed verbally will only be valid if we acknowledge them in writing. The Supplier must confirm our orders in writing immediately, specifying prices and the shortest delivery time / the delivery time stipulated by us.

Prices quoted are fixed and include all ancillary costs, in particular packing, transport and insurance, unless expressly agreed otherwise in writing. If the parties agree otherwise, the costs for freight and packing shall be shown separately in the invoices. Our Order Number is to be quoted in all correspondence and other documents, including invoices and delivery note.

Delivery of goods/services, performance

The periods and deadlines stipulated/agreed for deliveries of goods/services must be adhered to. When an order is accepted the delivery period for the goods/services will be assumed to have commenced to run on the order date. If it is impossible to adhere to a delivery period or deadline, the Supplier must notify us immediately of the reasons and the probable duration of the delay. If agreed periods or deadlines for deliveries are not adhered to because of circumstances for which the Supplier is responsible, we will be entitled after setting a reasonable extension of deadline to withdraw from the contract and/or to claim damages. The Supplier must pay all additional costs incurred as a result of late delivery for which the Supplier can be held responsible. The acceptance of late delivery does not represent any waiver of other claims.

Unless expressly agreed otherwise in writing, deliveries will be on a „free domicile“ basis to the destination stipulated/ agreed. In the case of commercial/business transactions the destination will at the same time be the place of performance.

Unless the means of transport is expressly stipulated/ agreed, the Supplier must select a suitable means of transport in accordance with the principles of good faith. The Supplier must deal with the necessary formalities for the carrier.

All duties in connection with customs clearance, in particular the processing of export documents, must be fulfilled by the Supplier on his own expenses. The Supplier is obliged to furnish us with the necessary import documents (e.g. export licenses or preferential certificates) at his own expenses.

In case of deliveries from countries with which the E.U. has made preferential arrangements, we expect that the goods of foreign origin are entitled to preferential treatment. If goods should be delivered which do not meet this requirement, the Supplier has to pay the E.U. customs duty. Unless expressly otherwise agreed in writing, the Supplier is not entitled to make part deliveries or to deliver more or less than the amount ordered.

Part and supplementary deliveries made for reasons for which the Supplier is responsible must be made at the Supplier‘s expense and accorded top priority, regardless of the invoice value. This does not affect our right to enforce further claims.

Unless expressly agreed otherwise in writing, deliveries of goods must be made during the periods specified below. If they arrive later, unloading will not be possible until the next working day. Any costs incurred as a result of a failure to adhere to the periods specified below must be borne by the Supplier, unless we are responsible for that failure.

Monday to Thursday: 8 AM to 4 PM

Friday: 8 AM to 12 noon

A delivery note must be enclosed with each consignment in single format. If a consignment consists of more than one packed item, the item which contains the delivery note must be clearly indicated.

The performance of contractual obligations of the Supplier by third parties is subject to our approval, even if the third party concerned is a company affiliated to the Supplier as defined in § 15 German Companies Law.

Packaging

We are entitled at our reasonable discretion to demand that the Supplier redeems packaging materials in an appropriate way without charge to us. We may collect the suppliers packaging materials and give an appropriate report to the Supplier. The Supplier may in all cases only charge durable packaging materials (e.g. crates, bale cords etc.) at cost and must credit 3/4 of the value charged within three month if they are returned carriage-paid in usable condition.

All damages arising from improper packing shall be borne by supplier.

In case of imports from countries against which the EU has imposed restrictions concerning certain packaging material (e.g. wood from the U.S.A.), the delivery has to be made in appropriate packaging materials which do not fall under such restrictions (e.g. plastic palettes).

Passing of risk, transfer of title

Unless expressly agreed otherwise in writing, the risk will not pass until goods/services are received by us.

On principle, title to goods supplied will pass to us when the respective delivery is obtained.

Simple reservations of title by the Supplier shall only become part of the contract if we have expressly consented to these in writing. Accordingly, also extended or wider reservations of title will only apply if we have expressly consented to these in writing.

Unforeseeable events, force majeure

In the case of unusual, unforeseeable events, in particular force majeure, war and actions taken by sovereign powers, the Supplier must without delay commence negotiations with us regarding their effects on the Contractual relationship.

There will be no general release from obligations to deliver. Even in these cases it will on principle remain possible to enforce other claims, in particular based on incorrect/incomplete performance.

Characteristics, assurance/guarantees, warranty, liability

The quality, quantity, dimensions and other characteristics of goods/services delivered must conform to statutory/ agreed requirements. In the case of supplies of machines/systems the Supplier is responsible for adherence to the relevant work safety and accident prevention regulations and for perfect design from the safety point of view in accordance with the most recent generally accepted standards of technology. All of the documents necessary for acceptance, operation, servicing and repair shall form a part of the scope of delivery in each case.

A reference to recognized standards implies on principle an assurance representing a guarantee of characteristics irrespective of fault, unless expressly agreed otherwise in writing. Samples, patterns, other documentation etc. and information in the form of e.g. photographs, drawings and statements of dimension or weight supplied to us also represent guarantees of characteristics irrespective of fault

The Supplier also guarantees that the use and/or selling-on of the goods/services supplied by him will not breach industrial property rights of third parties. Under this guarantee he will, at our first request, indemnify us against all claims by third parties based on breaches of industrial property rights. This does not affect our right to enforce any claims above and beyond this which are due to us, in particular claims to damages.

Our duty of § 377 German Commercial Code is limited to the control of the identity and completeness of delivery as well as obvious external transportation damage.

In the event of incorrect/incomplete performance, we may, at our discretion and taking into account what is reasonable, either initially demand rework/replacement or immediately demand the taking back of the defective delivery and the reimbursement of the price, a reduction of the price, compensation for damages and/or termination of the contract / compensation for wasted work/expenditure.

Guarantee and other claims, in particular ones based on incorrect/incomplete performance, will be as provided by law unless otherwise specified in these Terms of Purchase.

Upon the giving of a justified notice of defect, defects of all kinds shall be eliminated by supplier; this shall apply even where such defects are not discovered until such time as the relevant goods are used or processed.

With respect to defects in connection with job processing, our claims against the supplier shall likewise extend to the product provided. Products provided shall be treated as suppliers own product as from such time as supplier receive them. Supplier shall be obliged to monitor the quality and quantity of the products provided and to notify immediately us of defects, changes, etc. In addition the supplier shall handle the products provided with due care and consideration during to production process. In the event of production processing, we may demand to pay for the cost of replacement, if we are unable to use the product due to the fault of the supplier.

By means of urgent issues arousing danger to operational safety and in order to mitigate any disproportionately large damages we shall be entitled to eliminate the defect ourself or have it eliminated by Third Parties and claim reimbursement by the Supplier. Furthermore the Supplier must be informed immediately, excluding issues concerning defects by delivery or defects not rectified by the Supplier despite of two reminders or defects not rectified to our satisfaction.

Returns, special right to terminate

It is on principle permissible to return goods as long as it is not unreasonable to expect the Supplier to accept this in the individual circumstances. This also applies to custom orders and packs which have been opened.

If the Supplier ceases to make deliveries, if insolvency proceedings are initiated with respect to its assets or if an application for the initiation of insolvency proceedings is rejected due to lack of assets, we will be entitled to withdraw from the contract insofar as this relates to deliveries not yet made.

Invoices, payments

Invoices must be submitted to us without delay in single version. They must conform to statutory requirements, in particular with respect to the provision of turnover tax details and the quoting of the Supplier‘s turnover tax identification number.

As long as nothing to the contrary has been expressly agreed upon, we will deduct a 3% discount from payments made within 30 days following receipt of the invoice / the goods, whichever occurs last. Net payment will – again in case that nothing to the contrary has been expressly agreed upon - be made within 60 days, likewise following receipt of the invoice / the goods.

In the case of temporary non-performance we reserve the right to withhold payment in whole or in part to a reasonable extent until the incorrect/incomplete performance in question has been remedied. Payment does not represent confirmation of proper delivery.

Secrecy, title production materials, industrial property rights

The Supplier must regard commercial and technical details which come to his knowledge in connection with an order as business secrets and keep them confidential. Mentioned details may only be passed over to Third Parties in the extent required for adequate performance of the order. The forwarding to Third Parties must be denoted in written form or (in case of an existing Confidential Agreement) must be governed similarly with a Confidential Agreement.

Drawings, models, tools, patterns, matrices, data carrier, know-how or other production materials (below referred to as “production materials”) handed over to the supplier for the execution of an order or manufactured by the Supplier on our behalf are our property and may not be used for other commercial purposes, duplicated, sold, pledged or made accessible to Third Parties in any other way without our prior written approval. In particular, we reserve all relevant industrial property rights, above all patents and copyrights, on illustrations, drawings, calculations and other documents generated by us. Any processing or combination of such materials is done on our behalf. We become joint owners of any products manufactured using our materials in proportion to the ratio of the value of our materials to the value of the entire product.

The product must be stored by the Supplier with the care to be expected from a prudent merchant. The Supplier will store these production material for us free of charge, insure them as third-party property and return them to us on request without delay, properly packed and in due condition, when the business relationship is terminated. The Supplier‘s own suppliers must be placed under a corresponding obligation

Storage of data

We are entitled to store data relating to the Supplier subject to the requirements of the current version of the General Data Protection Regulation.

Legal venue, jurisdiction

For commercial/business transactions the exclusive legal venue for all disputes arising directly or indirectly out of the contract shall fall within the exclusive jurisdiction of the appropriate court at Purchaser domicile.

The legal relationship between us and the Supplier is exclusively subject to German law. Provisions, in particular those of inter- national private law, which could result in the application of other laws, are hereby expressly excluded. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are also expressly excluded.

Validity of terms

Should individual provisions of these Terms of Purchase be legally invalid, this does not affect the validity of the remaining provisions.

General Terms and Conditions of Sale

Version of 14 May 2018

Note: The terms and conditions have been reviewed and adjusted in accordance with the requirements of the General Data Protection Regulation

Exclusive Validity of the Terms and Conditions of Sale

1. The legal relations of the contracting parties shall be governed exclusively by the following terms and conditions. Any contradictory terms and conditions of the purchaser shall require the written confirmation of the vendor in order to be valid. Even if the vendor does not explicitly contradict such terms, this shall not be regarded as tacit acceptance there of.
2. The terms and conditions and any other agreements set out below shall remain binding, even if individual parts should be legally invalid.

Formation and Content of the Agreement

1. Offers shall always be subject to confirmation. Orders shall require the written confirmation of the vendor. The contents of the confirmation, against which the purchaser must immediately make objections in the event of deviations from or inconsistencies with his order, shall be exclusively authoritative.
2. Oral or telephone agreements or statements (e.g. by representatives) shall only come into effect once they have been confirmed by the vendor in writing.
3. Partial deliveries shall be permitted, provided that the purchaser is not unreasonably disadvantaged as a result thereof.
4. Models, upon which a delivery is based, shall only be regarded as approximations.
5. Slight deviations in material composition and color, through which the value and suitability of the delivery item are insignificantly diminished, shall remain reserved (i.e. shall be permitted).
6. The vendor also reserves the right to carry out technical modifications that do not impair the application purpose. The vendor shall only be liable for the physical unobjectionability of the raw materials used within the scope of the warranties of the suppliers.
7. The durability, water-resistance and light-fastness of the used printers’ ink and the colors of the paper, foils and other raw materials are not guaranteed, unless these attributes are explicitly ensured. "

Prices

1. The prices are net prices and do not include VAT. They shall be valid delivery ex works Altendorf, provided that they are not explicitly confirmed otherwise; EXW Altendorf, Incoterms 2010.
2. Should significant cost elements arise between the conclusion of the agreement and delivery, both contracting parties are bound to enter into negotiations with the objective of determining new prices. Should these negotiations not lead to a satisfactory conclusion within a reasonable time, both contracting parties shall have the right to withdraw from the agreement. Any additional requirements are excluded.
3. Costs for printed documents, drafts, plates, samples and any other preparatory work, which the vendor has created or carried out at the request of the purchaser, shall be charged for, even if an order is not then forthcoming.

Terms and Conditions of Payment

1. Provided that is not otherwise agreed, the payment must take place within 30 days of the billing date without any discount, or within 14 days with a 2 % discount, or within 7 days with a 3 % discount. Discounts shall not be granted, if previous bills are still outstanding.
2. Should the period of payment be exceeded, interest shall be levied at the current rate for short-term credits at a rate at least 2 % above the current basic rate of the European Central Bank. Further claims of the purchaser shall not be affected hereby.
3. Customer bills of exchange and acceptances may only be received in payment in accordance with an advance arrangement and against reimbursement of the utilization costs. These expenses shall be calculated from the due date of the financial obligations. The term of the Bill of Exchange or acceptance shall commence at the latest on the billing date. Any prolongation is excluded. Payments by check shall only be regarded as made when the check has been honored. In the case that Bills of Exchange, checks or any other means of payment of the purchaser are not honored, all the accounts payable of the purchaser, including those covered by ongoing acceptances, shall become due immediately.
4. The purchaser shall not be entitled to withhold or offset payments as a result of any counter claims, including warranty claims, unless these counter claims have been recognized or confirmed in law.
5. Should the financial circumstances of the purchaser significantly deteriorate, or should the purchaser be in arrears with his financial obligations, the vendor may demand the immediate payment of all outstanding debts, including those not yet due, and demand cash payment for all outstanding deliveries before the deliveries are made. Should the purchaser not comply with these demands, the vendor may withdraw from the agreement. He shall furthermore be entitled to have any goods still located on the premises of the purchaser retrieved at the cost of the purchaser.

Delivery Period

1. Delivery periods and deadlines shall not be binding, provided that definite delivery periods have not been explicitly agreed. The purchaser reserves a correct and punctual supply by his suppliers, provided that he has selected them with the level of care typical in commercial relations.
2. The delivery period shall commence on the date of the order confirmation, but not before the receipt of all the documentation required in order to carry out the order; it shall end on the day the goods leave the supplying factory or are stored if their dispatch is impossible.
3. Should the purchaser request modifications to the order after the order has been confirmed, which affect the production time, the delivery period shall first commence after the modification has been confirmed.
4. Should the delivery be delayed as a result of unforeseeable complications, which despite reasonable care being taken in accordance with the circumstances of the case in question could not be averted by the vendor, with regard to which it is irrelevant whether they arise in the vendor’s own company or in external companies, upon which the manufacture is dependent – e.g. acts of God, intervention by the authorities, war, transport difficulties, strikes and lock-outs, machine failures, delays in the supply of essential raw materials or shortage of energy – then the delivery period shall at least be extended by the duration of the complication. Should the delivery be impossible, both contracting parties may withdraw from the agreement. Claims for damages of any type are excluded, unless the vendor acted with gross negligence or intention.
5. Should the purchaser delay acceptance regarding parts of the order, the vendor shall not be obligated to deliver further parts of the order. The same shall apply, should the purchaser delay acceptance with regard to one of multiple individual orders. "
6. In the event of a delay in delivery, the purchaser must allow a reasonable period of additional time for the delivery to be made. After this period has expired, he may withdraw from the agreement. Claims for damages of any type resulting from a delay in or the non-performance of delivery are excluded, unless the vendor acted with gross negligence or intention.
7. Should delivery on demand be agreed, such shall be completed at the latest 3 months after the order has been confirmed. Otherwise, the vendor may demand payment within four weeks, withdraw from the agreement or claim damages as a result of non-performance. This shall be at least 15 % of the purchase price agreed; proof of more extensive damages shall not be excluded thereby.

Packaging, Postage and Passage of Risk

1. Special packaging and palettes requested by the purchaser shall be billed at cost price and shall only be revoked by agreement. Exchangeable transport palettes shall be excepted hereof.
2. Transport to the place of destination determined by the purchaser shall be at the risk of the purchaser. Passage of risk shall, unless otherwise agreed, always be the vendor’s factory. Provided that no special agreements have been made, the vendor shall select the packaging, the route of dispatch and the type of dispatch according to his best judgment. The goods shall only be insured at the request of the purchaser and at his cost.
3. Should the dispatch of the goods be impossible as a consequence of circumstances outside the scope of responsibility of the vendor, the vendor shall inform the purchaser hereof and set aside a reasonable period of time for the dispatch of the goods. After this deadline has expired, the vendor may put the goods into storage at the cost and risk of the purchaser or store them in another way. The vendor shall satisfy his obligation to deliver by the storage. As a result of this, the risks shall be transferred to the purchaser.

Retention of Ownership

1. The retention of ownership goods delivered shall remain the property of the vendor until full payment of all outstanding debts against the purchaser have been received and, with regard to payments by Bills of Exchange or checks, until such have been honored. Ownership shall only then be transferred to the purchaser, if he has paid off all his debts. This shall also apply, if the purchase price for designated delivery items has been paid by the purchaser.
2. Within the scope of the normal conduct of business, the purchaser shall be entitled to have the goods at his disposal. Should he make a disposition, he shall hereby assign to the vendor the debts against his buyer resulting from the sale, including all secondary rights, up to the sum of the amount required for the payment of the outstanding balance of the vendor, until the payment of all the debts owed to the vendor. At the request of the vendor, the purchaser shall be obligated to disclose the advance assignment of receivables to his buyer and to provide the vendor with this information and to hand over the documentation required to assert the rights resulting from the transferal with regard to his buyer.
3. With regard to the handling, processing, combination or connection of the conditional commodity by the purchaser with other goods, the vendor shall be entitled to the joint ownership of the new article in relation to the value of the conditional commodity. Should the purchaser resell the new article, item 2 shall apply correspondingly hereto.
4. The purchaser may only mortgage or transfer the ownership of the conditional by way of security with the consent of the vendor. He must immediately inform the vendor about any compulsory execution measures of third parties and assist with measures to protect the conditional ownership of the vendor.
5. The purchaser shall be obligated to insure the conditional commodity against all storage risks and to provide the vendor on demand with proof of the insurance policy. He shall herewith transfer his insurance claims to the vendor.

Industrial Property Rights and Copyright

1. The production of drafts, matrices, plates, lithographs, tools, printing cylinders and such on behalf of the purchaser shall be charged to the purchaser, unless otherwise agreed, even if they can no longer be used within the scope of a purchase order after they have been created. They shall remain the sole property of the vendor, unless other agreements have been made. There shall be no right to recover possession.
2. The purchaser shall be liable for any infringements of patents, models, terms and similar rights resulting from the purchaser’s order.
3. Galley proofs must be checked by the purchaser for typographical and other errors and returned to the vendor declared ready for publication.
4. The vendor shall not be liable for errors overlooked by the purchaser. Modifications submitted by telephone shall require written confirmation.
5. The manuscripts, originals, blocks, stocks, printed matter, fair copies, etc. handed over by the purchaser to the vendor, which are the property of third parties, shall be stored at the risk of the customer. It shall be the responsibility of the customer to take out suitable insurance.
6. Our trademarks and brands, as well as our registered trademarks may not be used without our explicit permission.

Warranty

1. Proposals made by the vendor concerning the suitability of the delivery item for a particular purpose shall not be binding and shall not be a substitute for checks and tests by the purchaser. The purchaser shall be responsible for the observance of legal and regulatory directives with regard to the use of the goods.
2. The purchaser must examine the goods immediately after their arrival at the place of destination, even if outrun samples have been sent. Should there be any shortcomings, the customer must immediately report such to the vendor.
3. Should the written notice of any shortcomings not be sent to the vendor within eight days of the arrival of the goods at the place of destination, the goods shall be considered as to have been approved. Written notice must be given of any non-apparent shortcomings immediately after the discovery thereof and at the latest six months after delivery.
4. A proportion of up to 2 % of faulty goods is typical for the production process and shall not entitle a notification of shortcomings, unless another ruling has been made. Any deviations in quality, surfaces and commissioned weights, size and quantity arising as a result of the production procedure shall not be considered to be a reasonable basis for complaint. Slight deviations in the color shades, the position of the printing and the printing itself, as well as in the plate cylinders, shall not represent a defect and shall not entitle the purchaser to register complaints. Slight variations in the dimensions are common in the business and shall not entitle the purchaser to make a notification of shortcomings. Deliveries exceeding or undercutting the ordered batch by up to 15 % must be accepted by the purchaser and shall be charged accordingly.
5. Any missing parts of the delivery may not lead to a complaint being registered with regard to the whole delivery.
6. With regard to well-founded shortcomings notified in the proper manner, excluding any further warranty claims by the purchaser the vendor must – at his discretion – deliver replacements or rectify the situation. Should the substitute delivery or rectification once more give rise to the justified notification of shortcomings, the purchaser shall be entitled to a reasonable discount or, if he is not interested in such, to withdrawal from the agreement. There shall be no further claims. Warranty claims shall be excluded, if the purchaser has further processed or sold the goods, after he had discovered, or should have discovered, the shortcoming, unless he can prove that the further processing or sale was necessary in order to prevent greater damages.
7. The purchaser is bound to give the vendor the opportunity to verify the notified shortcoming in situ.
8. With regard to outsourced orders, the vendor shall be liable up to a maximum amount equal to the agreed costs of the refinements. Any liability for defective units and for materials that cannot be used during production is excluded.
9. Any further claims of the purchaser against the vendor and his vicarious agents are excluded, in particular any claim for damages, which do not originate in the goods themselves, and any consequential damages, unless the vendor has acted with intent or negligence. Should any damage have been caused as a result of gross negligence or intent, the liability of the vendor shall be limited to the foreseeable damages resulting from such violation of duties.

Other Claims for Damages

Any claims for damages by the purchaser resulting from the impossibility of delivery, for which the vendor is responsible, the positive breach of contract, the violation of duties with regard to the agreement negotiations and an unlawful act are excluded, unless they are based on the intent or gross negligence of the vendor. This shall apply to both direct and indirect damages (consequential damages).

Applicable Law, Place of Fulfillment and Place of Jurisdiction

1. The bilateral legal relations shall be subject to German law. The laws governing the international purchase of movable property are excluded.
2. The place of fulfillment for payment and delivery shall be the place of business of the vendor.
3. The place of jurisdiction for all disputes with fully qualified merchants shall be the court responsible for the vendor.

Lohmann-koester GmbH & Co. KG

Industriestraße 2 D-96146 Altendorf

Phone: +49(0)9545-48 0 Fax: +49(0)9545-48 111

www.lohmann-koester.de E-Mail: info@lohmann-koester.de