Heraeus Electro-Nite Polska Sp. z o.o. - General Terms of Purchase 2019/9
1 Scope
All purchase orders (deliveries of goods and provision of services) of
Heraeus Electro-Nite Polska Sp. z o.o. ("Heraeus") are subject to thefollowing General Terms of Purchase ("GTP") only. These GTP apply also to
future purchase orders of Heraeus. Heraeus objects to general terms andconditions of the supplier which deviate from these GTP or the provisions oflaw as well as to any supplementary provisions in the terms and conditionsof the supplier, except where Heraeus gives its express prior written consent
to the applicability of the supplier's general terms and conditions. The
supplier's general terms and conditions will also not become part of acontract between Heraeus and the supplier even if Heraeus, although being
aware of the supplier's deviating or contravening terms and conditions,takes delivery of goods, accepts services or effects payment for suchdeliveries or services.
2 Offer and Formation of a Contract
2.1 All orders, agreements and changes shall be binding only if placed orconfirmed by Heraeus in writing. All correspondence must be exchanged
with the purchasing department of Heraeus.
2.2 Orders placed by Heraeus without a time limit for acceptance may be
accepted by the supplier only within fourteen (14) days from the order date.
2.3 Quotations are binding and non-refundable unless otherwise expressly
agreed in writing.
2.4 In case of any deviation or variance between the supplier's orderconfirmation and Heraeus' purchase order, a contract shall be formed only if
the supplier has expressly advised Heraeus of the deviation and Heraeus
has agreed to such deviation in writing.
3 Examination and Procurement Duties
3.1 Within the scope of its general and special professional knowledge, thesupplier shall examine all drawings, calculations, specifications and otherterms of reference provided by Heraeus for errors and inconsistencies on its
own initiative and shall report to and clarify with Heraeus all concerns orobjections, if any, promptly in writing.
3.2 The supplier bears the procurement risk of the goods.
4 Delivery; Supplier's Lien; Security in the Supply Chain
4.1 The period of delivery/performance specified by Heraeus in the purchase order is binding. If the purchase order does not specify such period,delivery of the goods or performance of the service, respectively, shall beeffected within fourteen (14) days after the date of the purchase order.
4.2 If the supplier is unable to comply with the binding period of delivery/performance, set forth in clause 4.1, the supplier shall notify Heraeus
promptly and advise a practicable date for the delivery/performance. In
addition, the supplier is committed to notify Heraeus without request of any
difficulties in delivery/performance which may arise, for any reason whatsoever, immediately after such difficulties have come to the supplier's
knowledge.
4.3 The supplier is obligated to strictly comply with all instructions andrequirements of Heraeus as regards mode of transport, forwarding agent,and shipping instructions.
4.4 All deliveries and services shall be effected DDP "Point of Use" (Incoterms 2010). If delivery is made to construction sites or directly to third
parties, unloading shall be at the cost and risk of the supplier.
4.5 Partial deliveries are permissible only with the express written consent
of Heraeus, which consent shall not be unreasonably withheld.
4.6 The supplier is committed to attach to each shipment a delivery note
exactly specifying the contents of the shipment, the net weight per item, andthe complete SAP purchase order number of Heraeus.
4.7 The unconditional acceptance by Heraeus of a late delivery or late
performance does not constitute a waiver by Heraeus of any compensatory
claims arising to it from such late delivery or late performance; the foregoingshall apply until Heraeus has fully settled all payments owed by it for the
goods or services so affected.
4.8 With regard to quantities, weights and dimensions, the figures determined by Heraeus during its incoming inspection shall be controlling, unlessotherwise evidenced by the supplier.
4.9 The supplier shall provide reasonable assistance to Heraeus in obtaining preferential tariffs and other governmental benefits and submit to
Heraeus all supporting records and documents, especially certificates oforigin, which are requested by Heraeus for this purpose.
4.10 If any payment instruments, shipping documents, certificates of origin
or sales tax vouchers are missing, improper or incorrect, Heraeus reserves
the right to refuse acceptance of the goods at the supplier's cost and risk.
4.11 If the supplier has agreed to carry out the installation or assembly, or in
the absence of any agreement stating otherwise, the supplier shall bear allnecessary expenses, such as travel expenses or tooling charges, unlessotherwise agreed.
4.12 Any contractual liens and reservations of title by the supplier are
subject to a separate written agreement between Heraeus and the supplier.
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4.13 The supplier shall give all organizational instructions and take allorganizational measures, in particular in the areas of property protection,
security of business partners, personnel and information, as well as in theareas of packaging and transport, which are required to ensure security inthe supply chain, for example by adopting the requirements of internationallyaccepted initiatives on the basis of the WCO SAFE Framework of Standards(especially AEO). The supplier shall protect its deliveries of goods to and theperformance of its services for Heraeus against unauthorized access andmanipulation and shall have such deliveries and services performed byreliable personnel only. The supplier shall obligate any subcontractors
commissioned by it to give corresponding instructions and to take corresponding measures.
4.14 The supplier represents and warrants that the goods do not contain any
substances which are restricted by Directive 2011/65/EU (RoHS), that thesubstances which are contained in the goods and its use(s) are either
already registered or not subject to registration in accordance with theRegulation (EC) No. 1907/2006 (REACH) and, if necessary, that an authorisation in accordance with the REACH Regulation has been granted. The
supplier shall prepare the safety data sheet pursuant to Annex II of the
REACH Regulation, if required, and provide them to Heraeus. If the goods
delivered are to be classified as dangerous goods within the meaning of theapplicable international rules, standards and guidelines, the supplier must
notify Heraeus thereof no later than on the date of the order confirmation.
4.15 Heraeus retains title to, and ownership of, any and all items, such as
substances, tools, materials and other items, which are provided by it to the
supplier for manufacturing purposes. As long as they are not processed, anysuch items must be stored separately and insured at replacement value
against loss and destruction at the supplier's cost. The processing, blendingor combining (further processing) of any such items by the supplier is madeon behalf of Heraeus. The same applies to the further processing by
Heraeus of the goods delivered to it, so that Heraeus is deemed to be the
manufacturer and obtains ownership of the product so manufactured.
4.16 Title to, and ownership of, the goods shall be transferred to Heraeus
unconditionally and regardless as to whether the purchase price has been
paid. If, in the individual case, Heraeus accepts an offer from the supplier forthe transfer of ownership of goods which is conditional upon payment of thepurchase price, the supplier's reservation of title shall lapse upon paymentof the purchase price of the goods at the latest. In such case, Heraeus isauthorized to resell the goods in the ordinary course of business also prior
to the payment of the purchase price on the condition that Heraeus assigns
to the supplier in advance the purchase price claims arising from such
resale (application of the simple reservation of title extended to resale). In
any case, all other forms of reservation of title are excluded, in particular the
expanded and the assigned reservation of title, as well as the reservation of
title extended to further processing.
5 Force Majeure
If the supplier failes to timely deliver/perform a service because of acts ofGod, labor disputes, operational breakdowns through no fault or negligenceof Heraeus, civil disturbances, actions by any governmental authority andother events or circumstances beyond Heraeus' control Heraeus will beentitled -notwithstanding any other rights or remedies available to it - torescind the contract in whole or in part if such circumstances or events
continue for a significant period of time and result in a substantial decrease
in Heraeus' demand.
6 Contractual Penalties
6.1 In the event that the supplier defaults in the timely performance of its
duty to deliver/provide a service, Heraeus may claim a contractual penalty at
the rate of 0.5 % of the aggregate order value for each commenced calendar week of the supplier's delay, but no more than 5 % of the aggregate
order value. This shall not apply if the supplier furnishes valid proof that thedelay was caused by reasons beyond the supplier's control.
6.2 The contractual penalty pursuant to clause 6.1 shall be incurred as soon
as the supplier is in delay of delivery. The contractual penalty is immediately
due for payment.
6.3 Heraeus may assert the contractual penalty in addition to its claim for
performance of the supplier's duty to deliver. If Heraeus accepts the supplier's delayed performance, Heraeus may claim the contractual penalty also if
it has not expressly reserved this right at the time of receipt of delivery.
Heraeus shall declare the reservation of its right to assert the contractual
penalty no later than at the time of its final payment of the delivery concerned. This declaration may be given on a printed form.
6.4 Heraeus has the right to demand compensation exceeding the amountof the contractual penalty, but the contractual penalty pursuant to clause 6.1
shall be set off against any such further damage.
7 Claims for Defects; Recourse and Product Liability; Insurance
7.1 The supplier is responsible for the perfect condition of the goods
delivered and the services provided and for the existence of warranted
characteristics. The supplier is in particular responsible for the conformanceof the goods and services to the state of the art, to the generally accepted
technical and occupational health and safety regulations of public authorities
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and trade associations, and for the compliance of the goods and services
with all applicable laws.
7.2 Heraeus' duty to examine and give notice of defects shall be subject tothe statutory provisions (Sections 555, 563, 564 of the Polish Civil Code
(PCC)) with the following proviso: Heraeus' duty to examine is limited to
defects which become apparent upon outward examination of the goods,
including the shipping documents, during the incoming inspection and to
defects which become apparent during quality control by way of random
sampling (such as damage to the goods during transport, wrong delivery
and short delivery, for example). The duty to examine shall not apply if
acceptance of the goods delivered has been agreed. Above and beyond theforegoing, it depends on the feasibility of such an inspection in the ordinary
course of business, with due regard to the circumstances in the individualcase. Heraeus' duty to give notice of defects which are discovered laterremains unaffected. In all cases a notice of defects shall be deemed to havebeen given promptly and timely if it is delivered to the supplier within aperiod of fourteen (14) calendar days.
7.3 The statutory provisions on material defects and defects of title shallapply, except as otherwise provided hereinbelow.
7.4 If the supplier, within the scope of subsequent performance of thecontract, remedies a defect by rectification or by delivery of a faultfree
product, the statutory warranty periods will commence to run again.
7.5 If the supplier defaults in its duty of subsequent performance of thecontract within a reasonable time period fixed by Heraeus without having theright to refuse such subsequent performance, Heraeus is entitled to itself
remedy, or cause to be remedied by any third party, the defect at the cost of
the supplier and to claim from the supplier an advance payment of the costs
thereby incurred.
7.6 All costs arising to Heraeus from the supplier's delivery of defective
goods or provision of defective services, especially travel and transport
expenses, labor and material costs, and the costs of an incoming inspection
exceeding the usual scope, shall be borne by the supplier. Any costs
incurred by the supplier for the examination and rectification of defects(including any removal and installation costs) shall be borne solely by the
supplier even if it turns out that there was actually no defect. Heraeus shallbe liable to pay damages to the supplier for unjustified claims for remedy ofa defect only if Heraeus has recognized, or grossly negligent failed torecognize, that no defect existed.
7.7 The supplier is obligated to indemnify and hold Heraeus harmless fromand against any and all product liability claims, and from any loss or damage
arising therefrom, if and to the extent that such claims are attributable to a
defect in the goods delivered/manufactured or the services provided by the
supplier. If a product liability claim under strict liability should be asserted orentered against Heraeus, the foregoing shall apply only if the supplier is at
fault. If the cause of the loss or damage is within the responsibility of the
supplier, the burden of proof shall rest on the supplier. The supplier shallrefund also any and all necessary costs and expenses in accordance with
Sections 753 § 2 sentence 2 of the PCC) to the extent of the supplier's
indemnity obligation, including the costs of bringing an action or the costs
generated by a product recall. Heraeus will inform the supplier of the scopeand content of such product recall to the extent practicable and reasonable.
7.8 The supplier is obligated to take out and maintain a product liability
insurance with adequate coverage and to furnish proof of the existence ofsuch insurance to Heraeus upon request.
7.9 The mutual claims of the contracting parties against each other becomebarred by the statute of limitations in accordance with the statutory provisions unless otherwise specified below. In accordance with Section 568 § 2of the PCC the limitation period for claims for removing defects or replacement is one (1) year from date of detecting the defect.
7.10 The statutory limitation periods governing the sale of goods apply
within the legal limits to all claims for defects. If Heraeus is entitled to extracontractual claims for damages, such claims shall be subject to the regular
statutory limitation periods.
8 Infringement of Third Party Property Rights
The supplier warrants that no patent rights or other intellectual property
rights of any third party are infringed by or in connection with the supplier's
delivery of goods or provision of services, and the supplier will, upon firstwritten request, indemnify and hold Heraeus harmless from and against any
and all claims which are asserted or entered against Heraeus by any third
party on account of the infringement of a patent or other property right. The
supplier will reimburse Heraeus for all necessary costs and expenses
arising to Heraeus out of or in connection with such third party claims.
Irrespective of the foregoing, Heraeus shall be entitled to enter with any third
party into agreements on the alleged infringement of property rights,
especially compromise settlement agreements, also without the consent of
the supplier.
9 Prices and Terms of Payment
9.1 The prices specified in the purchase orders are binding. These prices
include any and all services and ancillary services provided by the supplier(such as mounting and installation, for example) as well as all ancillary costs(such as packaging, transport and transport and liability insurance). The
supplier shall take back packaging materials at the request of Heraeus.
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9.2 All invoices must specify the SAP purchase order number of Heraeus,
the exact description and quantity of the goods delivered or services
provided, and the price per unit or quantity. All invoices must be sent to theaddress specified in the purchase order.
9.3 Unless otherwise agreed between the parties, the agreed prices
become due and payable within sixty (60) calendar days after full performance of the delivery and/or service (as well as acceptance, if applicable)
and receipt of a proper invoice. If the invoice is paid within fourteen (14)calendar days, the supplier shall grant a 3 % discount on the net invoice
amount.
9.4 There shall be no delay interest payable from the due date unless
Heraeus is in default. The rate of interest for default is the statutory interestfor the delay. The commencement of default in payment is generally
governed by the statutory provisions. However, a written reminder for
payment from the supplier is required in each case.
9.5 Rights of setoff and rights of retention as well as the defense of nonperformance of the contract shall be due to Heraeus within the statutory
scope. In particular, Heraeus is entitled to withhold payments due for solong as Heraeus has claims against the supplier from incomplete or defective deliveries and/or services.
10 Industrial Property Rights and Know-How
10.1 All right, title and interest in and to any models, samples, drawings,
software, documentations and other records as well as all right, title andinterest in and to any materials, tools, production and testing equipment andknow-how disclosed or released by Heraeus to the supplier shall remain
vested solely in Heraeus. Any such items, information and documents mustbe treated as confidential and may not be transmitted to any third party,
unless with the express prior written consent of Heraeus and unless suchthird party is bound by the same obligations of confidentiality.
10.2 All items, information and documents set forth in clause 10.1 must be
returned to Heraeus, without request, immediately upon performance of thecontractual obligation or when they are no longer required by the supplier.
Any other use or disposal, whether in fact or in law, and/or any direct orindirect exploitation of such rights, items and documents by the supplier or
any third party is expressly prohibited.
10.3 In the case of research, development, construction, engineering orother contracts covering the elaboration of a solution to a technical problem,
all right, title and interest in and to any inventions made by the supplier inperforming the contract as well as any patents to be applied for, alreadyapplied for, or granted on such inventions shall be exclusively due toHeraeus. The same shall apply to any new technical know-how which does
not belong to the state of the art. At the request of Heraeus, the supplier will
exploit inventions which are made by its employees. The supplier agrees
and undertakes to notify Heraeus in writing of any such new technical knowhow or employee invention within a period of six (6) weeks. The costs
incurred in accordance with the Polish Industrial Property Law will be borne
by Heraeus.
11 Heraeus Code of Conduct
11.1 The supplier hereby commits to Heraeus to comply with all legallybinding rules and regulations, in particular with all applicable laws for theprotection of fair competition, all export and import prohibitions in force, allapplicable customs and tax regulations as well as all applicable legal
regulations for the protection of the environment, and not to offer, promise,or grant any benefits to employees of Heraeus as consideration for the
preferential treatment in the procurement of products or services ("bribery"),
to ban forced and child labor, and to ensure for its own staff a fair pay,
appropriate working hours, safety at work and a non-discriminating working
environment.
11.2 Heraeus may terminate the contract with the supplier without notice inthe event that the supplier commits a breach of its obligations set forth in thepreceding paragraph. The supplier commits to pay a contractual penalty inthe amount of 10% of the order value to Heraeus in the case of bribery or
violation of the applicable laws for the protection of fair competition. Furthermore, the supplier shall indemnify and hold harmless Heraeus from andagainst any third-party claims which are asserted or entered against Heraeus on account of, or in connection with, the supplier's breach of its obligations set forth in the preceding paragraph.
12 Miscellaneous
12.1 The place of performance for all payments between Heraeus and the
supplier is the registered place of business of Heraeus.
12.2 These General Terms of Purchase and any agreement between
Heraeus and the supplier shall be governed by and construed in accordancewith the law of the Republic of Poland, without giving effect to its conflict oflaw provisions and without giving effect to the UN Convention on Contracts
for the International Sale of Goods (CISG).
12.3 The place of jurisdiction, also for actions on checks and bills of exchange, shall be the domicile of Heraeus. However, Heraeus shall beentitled to recourse in any court having jurisdiction as to the respective legal
action under the laws of the Republic of Poland or under the laws of thecountry in which the supplier has its registered place of business.

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