Heraeus Electro-Nite International N.V. - General Terms and Conditions of Purchase - 05/2021
1.
Scope
1.1 All orders (for goods to be delivered and services to be provided)
placed by Heraeus Electro-Nite International NV and its affiliated companies operating in Belgium ("Heraeus") are subject to the following General
Terms and Conditions of Purchase ("GTCP"). These GTCP also apply tofuture orders by Heraeus. Heraeus will oppose the application of the supplier's general terms and conditions in the cases where they derogate fromthese GTCP or applicable statutory provisions, unless Heraeus previously
expressly agreed to the supplier's general terms and conditions in writing.
The supplier’s general terms and conditions will not form part of any agreement between Heraeus and the supplier either, even if Heraeus, being
aware of the supplier’s derogating or unlawful general terms and conditions, accepts the delivery of goods, has services performed or pays forsuch delivery or services.
2.
Offer and Formation of an Agreement
2.1 All orders, agreements and amendments will only bind Heraeus if
they have been placed, entered into or confirmed by Heraeus in writing. All
communication must be made with the Heraeus Purchasing Department.
2.2 Orders placed by Heraeus that do not contain a time limit regarding
acceptance must be accepted by the supplier within fourteen (14) days
from the day on which the order was placed.
2.3 Price quotations are binding and cannot be renegotiated unless thisis expressly agreed in writing.
2.4 If there is a difference between the supplier's order confirmation and
Heraeus' order, an agreement will only be formed if the supplier has expressly recommended an amendment to Heraeus and Heraeus has agreed
to such amendment in writing.
3.
Examination and Purchase Obligations
3.1 Within the framework of its general and specific professional
knowledge and on its own initiative, the supplier will check all drawings,
calculations, specifications and other task descriptions provided by
Heraeus for errors and inconsistencies. The supplier will immediately notify
Heraeus in writing of any potential concerns and objections.
3.2 The supplier will bear the risk until the object has been put in thepossession of Heraeus, even after ownership has been transferred.
4.
Delivery; Right of Retention; Collateral
4.1 The delivery period or period of performance that Heraeus specifies
in the order is binding. If the order does not specify such a period, the goods
must be delivered, or the service must be performed within fourteen (14)days after the date on which the order was placed.
4.2 If the supplier is unable to comply with the binding period of delivery
or performance stated in Article 4.1, it will immediately notify Heraeus of
this and propose a new date for the delivery or performance. In addition,
the supplier will be obliged to notify Heraeus without delay of any problems
with the delivery/performance that may occur for any reason whatsoever,and to do so immediately after the supplier became aware of the problems
or could reasonably have become aware of them.
4.3 The supplier will be obliged to strictly comply with any instructions
and requirements specified by Heraeus with regard to transport, the forwarder and the shipment.
4.4 All deliveries and services will be made and performed DDP "Pointof Use" (Incoterms 2020). If the delivery is made to site or directly to a third
party, it will be unloaded at the supplier’s expense and risk.
4.5 Partial deliveries will only be permitted with the express and writtenconsent of Heraeus, which shall not refuse its consent unreasonably.
4.6 The supplier is obliged to attach a delivery note to each shipment,
which note states the exact contents of the shipment, the net weight per
piece, and the full Heraeus SAP order number.
4.7 Heraeus' unconditional acceptance of a late delivery or late performance shall not constitute a waiver by Heraeus of its right to compensation
for damages caused by the late delivery or late performance. The foregoing
will apply until Heraeus has paid in full all payments due for the goods orservices.
4.8 With regard to quantities, dimensions and weight, the figures determined by Heraeus during examination upon receipt will be binding, unlessthe supplier proves that such determination is incorrect.
4.9 The supplier will reasonably assist Heraeus in obtaining preferential
rates and other government benefits and will provide Heraeus with any supporting information and documents, in particular any certificates of origin
requested by Heraeus for this purpose.
4.10 Heraeus reserves the right to refuse acceptance of the goods at the
supplier's expense and risk if payment instruments, transport documents,
certificates of origin or sales tax documents are missing or incorrect.
4.11 If the supplier has agreed to perform the installation or fitting, and if
there is no written agreement/provision to the contrary, the supplier willbear all necessary expenses, such as travel expenses or fixed costs.
4.12 Contractual pledges, any other security or any other reservation
made by the supplier can only arise pursuant to a separate written agreement between Heraeus and the supplier.
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4.13 The supplier will issue all organisational instructions and take all organisational measures, more specifically in the field of property protection,commercial relations security, personnel and information, as well as in thefield of packaging and transport, that are necessary to provide supply chain
security, for example by applying the requirements of the internationallyaccepted initiatives based on the WCO SAFE Framework of Standards (especially the AEO). The supplier will protect its supplies of goods to andperformance of services for Heraeus against unauthorised access and manipulation and will only allow reliable personnel to make such deliveries andperform such services. The supplier is obliged to issue similar instructions
to any subcontractors it instructs and to make them take similar measures.
4.14 The supplier declares and guarantees that the goods do not containany of the substances restricted by Directive 2011/65/EU (RoHS), that thesubstances contained in the goods and their use are either already registered or do not need to be registered in accordance with Regulation (EC)No 1907/2006 (REACH Regulation) and, if necessary, that an authorisation
has been granted in accordance with the REACH Regulation. If necessary,
the supplier will prepare the safety data sheet in accordance with Annex IIof the REACH Regulation and submit it to Heraeus. If the delivered goods
are to be classified as dangerous goods as referred to in the applicableinternational rules, standards and guidelines, the supplier must inform
Heraeus accordingly no later than on the date on which the order is confirmed.
4.15 Heraeus will retain its title and/or ownership title to all objects, suchas substances, tools, materials and other objects that Heraeus provides tothe supplier for production purposes. Such objects will be stored separately
and insured at their new value against loss and destruction at the supplier's
expense as long as they have not been processed. The supplier will process, mix or combine (further process) such objects only upon the instruction of Heraeus. The same will apply to Heraeus’ further processing of thegoods delivered to it, which means that Heraeus will be regarded as the
manufacturer and the owner of the (end) product.
4.16 The right of ownership or any other title relating to the goods will be
unconditionally transferred to Heraeus, regardless whether or not the purchase price has been paid. If Heraeus exceptionally accepts an offer fromthe supplier whereby the transfer of ownership title to the goods depends
on payment of the purchase price, the retention of ownership made by the
supplier will lapse, at the latest, at the time that the purchase price is paid.
In such case, Heraeus will nevertheless be permitted to sell the goods inthe normal course of its business before the purchase price is paid, on condition that Heraeus assigns the claim for the purchase price arising fromsuch resale to the supplier in advance (application of the simple retentionof ownership extended to resale). In any event, all other forms of retentionof ownership stipulated by the supplier will be excluded; in particular theextended retention of ownership following specification.
5.
Force Majeure
5.1 Force majeure, labour disputes, business interruptions where nofault or negligence has been shown on the part of Heraeus, epidemics, civil
unrest, actions by a governmental authority and other events or circumstances beyond Heraeus' control will entitle Heraeus - without prejudice toany other right or remedy available to Heraeus - to rescind the agreement(s) in whole or in part if such circumstances or events persist for aperiod of 3 months and result in a substantial decrease in demand on thepart of Heraeus.
6.
Contractual Compensation for Damages
6.1 If the supplier fails to fulfil its obligation to deliver or execute on time,
Heraeus can claim contractual compensation for damages at the rate of
0.5% of the total value of the order for every commenced calendar week ofdefault by the supplier, yet not more than 10% of such total value. This
provision shall not apply if the supplier provides proof that the non-compliance was caused by reasons beyond its control and that it had taken all
reasonable (precautionary) measures.
6.2 The contractual compensation for damages pursuant to Article 6.1
will arise as soon as the supplier fails to deliver or execute on time. Payment of the contractual compensation for damages will be due immediately
without prior notice of default.
6.3 Heraeus can enforce the contractual compensation for damages regardless of its claim in kind to fulfil the supplier's delivery or performanceobligation. If Heraeus accepts the supplier’s late performance, Heraeus canstill claim the contractual compensation for damages, even if such right was
not expressly reserved at the time at which the delivery was received.
Heraeus reserves the right to enforce contractual damages, at the latest,at the time at which the relevant delivery is finally paid.
6.4 Heraeus will be at liberty to prove loss that is greater than the loss
covered by the contractual compensation for damages referred to in Article
6.1. The contractual compensation for damages will then be set off against
the damage proven.
7.
Indemnification for defects; Product liability; Insurance
7.1 The supplier is responsible for the good condition of the goods supplied and services rendered, and for the availability of the guaranteed properties. In particular, the supplier will be responsible for the conformity of the
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goods and services with the state of the art, with the generally accepted
technical, health and safety regulations of the public authorities and tradeorganisations, and for the conformity of the goods and services with all applicable legislation.
7.2 In accordance with its due diligence obligation, Heraeus is obliged tocheck that the delivery is in conformity with the following condition: Heraeus' obligation to examine is limited to visible defects that are clearly revealed during an external examination of the goods, including the transport
documents, during the inspection upon receipt and to defects that are visible when their quality is controlled by means of sampling (such as damage
to the goods during transport, incorrect delivery and insufficient delivery, forexample). In addition to the above, the feasibility of such an inspection in
the context of normal trade depends on the circumstances of the individualcase. Acceptance by Heraeus shall not prejudice Heraeus' right to notification of latent defects discovered at a later date. The supplier is obliged toindemnify Heraeus against latent defects in accordance with Articles 1641,
et seq. of the Belgian Civil Code. In all cases, notification of defects will bedeemed to have been given promptly and in good time if the supplier isnotified of the defect within a period of fourteen (14) calendar days.
7.3 The legal provisions regarding indemnification against enforcement(Articles 1626 et seq. of the Belgian Civil Code) and hidden defects (Articles
1641 et seq. of the Belgian Civil Code) will apply, unless otherwise provided
below.
7.4 If, within the framework of the execution of the contract, the supplier
repairs or replaces a defective item with a product that is free of defects,
the statutory warranty periods will recommence from that time.
7.5 If the supplier fails to fulfil its obligation to execute the agreement
within a reasonable period of time as determined by Heraeus, Heraeus will
have the right, either to personally remedy the non-performance or to ordera third party to do so at the supplier’s expense, whereby Heraeus may invoice an advance payment for the pursuant costs.
7.6 The supplier will bear all costs caused by delivery of defective goods
or by defective performance of services, i.e. travel and transport costs, labour costs and equipment costs, and the costs of an inspection on receipt,
in particular above the usual amount. Any costs incurred by the supplier forthe examination and rectification of defects (including removal and installation costs) will be borne exclusively by the supplier, even if it ultimately turns
out that there was no defect. Heraeus will only be obliged to pay compensation to the supplier for wrongful claims for indemnification for defects if
Heraeus has acknowledged that no defect existed or if the non-acknowledgement turns out to be gross negligence on the part of Heraeus.
7.7 The supplier will be obliged to safeguard and indemnify Heraeus
against all claims for product liability and any loss or damage pursuant
thereto if and to the extent that such claims are attributable to a defect inthe object supplied/manufactured or in the service provided by the supplier.
If a product liability claim in the strict sense is brought against Heraeus, theforegoing will only apply to the extent that the supplier is in default. If the
supplier is responsible for the loss or damage, the burden of proof regarding the liability will lie with the supplier. The supplier will also be required toreimburse all necessary costs and expenses, including the costs for legal
proceedings, or the costs for recalling the object or withdrawing the productfrom the market. Heraeus will inform the supplier of the scope and substantive aspects of such a recall insofar as this is reasonably practicable.
7.8 The supplier will be obliged to take out and maintain product liability
insurance with adequate cover and will be required to provide Heraeus with
proof of the existence of such insurance whenever the latter so requests.
7.9 The contracting parties’ mutual claims against each other will prescribe in accordance with the statutory provisions of Article 2262bis of theBelgian Civil Code. The general prescription period for claims due to defects is three (3) years from the date on which the risk or acceptance transfers if acceptance is required.
7.10 In accordance with Article 2220 of the Belgian Civil Code, the parties
can subsequently waive an acquired prescription period. Heraeus must
make such waiver expressly and in writing. If Heraeus nevertheless fulfils
an obligation, even though the creditor's right of action in respect of suchobligation has prescribed, Heraeus will be presumed to have fulfilled suchobligation non-willingly, with the result that - except where Heraeus expressly declares this in writing - no natural obligation can be presumed on
the part of Heraeus.
8.
Infringement of Third Party Property Rights
8.1 The supplier warrants that no patents or other intellectual property
rights of third parties will be infringed pursuant to the supply of goods orprovision of services by the supplier, and, whenever Heraeus requests asmuch in writing, the supplier will indemnify Heraeus and safeguard it
against all possible claims and proceedings by third parties brought against
Heraeus on the grounds of infringement of a patent or of other property
right. The supplier will reimburse Heraeus for all necessary costs and expenses arising from or in connection with such third-party claims. Regardless of the foregoing, Heraeus will be entitled to enter into agreements - inparticular amicable settlements - with third parties regarding the alleged
infringement of property rights without requiring the supplier's consent.

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9.
Prices and Payment Periods
9.1 The prices specified in the order form are binding. These prices include all services and support services provided by the supplier (such as:
fitting, installation, etc.), as well as all additional costs (such as: packaging,transport, liability insurance, etc.). The supplier will take back packaging
materials at Heraeus' request.
9.2
All invoices must indicate Heraeus' SAP order number, the exact
description, the quantity of goods or services delivered, and the price perunit or quantity. All invoices must be addressed to the address mentioned
in the order form.
9.3 Unless the parties agree otherwise, the agreed prices are due andpayable within sixty (60) calendar days after delivery has been fully performed and/or the service has been fully provided (and accepted, if required
or applicable) and a correct invoice has been received. The supplier will
grant a discount of 3% on the net invoice amount if the invoice is paid within
fourteen (14) calendar days.
9.4 No interest will be due as from the due date, unless the supplier has
declared Heraeus to be in default by means of a written demand for payment. The interest rate for late payment shall not exceed 5%, whereby theparties explicitly deviate from the interest rate determined by the Act of 2
August 2002 on combating late payment in commercial transactions.
9.5 Heraeus will be entitled to set off/compensate claims and to exercise
the right of retention on goods, as well as to use the non-performance ofthe contract by the other party to suspend the performance of its own obligations within the limits laid down by law. In particular, Heraeus will be entitled to suspend all payments for such time as the supplier has fulfilled its
obligation defectively or incompletely.
10. Industrial Property Rights and Know-How
10.1 Heraeus will remain the exclusive owner of all rights, claims and interests relating to models, samples, drawings, software, documentationand other data, as well as all rights, claims and interests relating to materials, tools, production and testing equipment and know-how that it disclosed
or released to the supplier. Such objects, data and documents must betreated as confidential and may not be disclosed to third parties save with
Heraeus' express prior written consent and to the extent that such third
party is bound by the same obligations of confidentiality.
10.2 The supplier must return all objects, data and documents as set out
in Article 10.1 to Heraeus immediately after the former has fully executed
its services under its contractual obligations or where it no longer needs
them, and the supplier must do so without it being necessary for Heraeus
to request the said return. Any other or improper de facto or de jure use,
and/or any direct or indirect exploitation of such rights, objects and documents by the supplier or third parties is expressly prohibited.
10.3 In the case of studies, developments, constructions, techniques orother agreements relating to solving a technical problem, all rights, claims
and interests relating to such inventions will be the exclusive property of
Heraeus where the supplier makes them while executing the contract for
Heraeus, as well as all patents that can be applied for, that have alreadybeen applied for or that have been granted for such inventions. The same
principle applies to all new technical know-how that does not belong to thestate of the art. At Heraeus' request, the supplier will exploit service anddependent inventions made by its employees or, if free, independent inventions are concerned, will acquire them at Heraeus' request. Heraeus willbear the costs for acquiring the invention. The supplier undertakes to notify
Heraeus in writing of such new technical know-how or inventions within aperiod of six (6) weeks.
11. The Heraeus Code of Conduct and Supplier Quality Manual
11.1 Heraeus wishes to strengthen its good name and reputation by acting responsibly. The supplier undertakes vis-à-vis Heraeus that it will comply with all statutory provisions and regulations, in particular all applicableregulations for the protection of fair competition, all applicable export andimport bans, all applicable customs and tax regulations and all applicablestatutory regulations for the protection of the environment, and not to offer,promise or grant any benefits to Heraeus' employees in return for preferential treatment in the purchase of products or services (bribery), that it willprohibit forced and child labour, and that it will ensure that is own personnel
are fairly remunerated, have appropriate working hours, are safe at work
and work in a non-discriminatory working environment. Furthermore, thesupplier expressly acknowledges that it accepts the "Supplier Quality Manual" and expressly acknowledges that the contents form an integral part ofthese general terms and conditions and the contracts that will be concluded
between Heraeus and the supplier in the future. The most recent versionof the "Supplier Quality Manual" can be consulted atwww.heraeus.com/en/hen/about_heraeus_hen/supplier_quality/supplier_quality.html.
11.2 Heraeus may unilaterally terminate the agreement with the supplier
without prior notice if the supplier breaches its obligations as set out in theprevious paragraph. The supplier undertakes to pay Heraeus a contractual
amount of compensation for damages/penalty of 10% of the order value if
there is any bribery or violation of applicable regulations protecting fair competition. In addition, the supplier will indemnify Heraeus against all thirdparty claims brought against Heraeus on account of or in connection withthe supplier's failure to fulfil its obligations as set out in the preceding paragraph.
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12. Severability
Each provision of this GTCP shall be interpreted in such a manner as to beeffective and valid under the applicable law. However, if one or more provisions of these general terms and conditions should be declared void or
become unenforceable due to a change in law or for any other reason, thiswill not affect the legality, validity and enforceable nature of the other provisions of the relevant article of the general terms and conditions and thegeneral terms and conditions as a whole. Heraeus and the customer undertake to replace the invalid provisions, to the extent that this is still legallypossible, by a new provision that corresponds to the objectives of the general terms and conditions.
13. Other Provisions
13.1 All payments between Heraeus and the supplier are to be made at
the registered office of Heraeus.
13.2 These GTCP and the contracts between Heraeus and the supplier
will be governed by and interpreted in accordance with Belgian law, withthe exception of the provisions of private international law and with the exception of the UN Convention on Contracts for the International Sale ofGoods (CISG), which are expressly excluded.
13.3 Territorial jurisdiction, including for actions relating to cheques andbills of exchange, is vested in the place where the Heraeus registered officeis established. However, Heraeus will have the right to bring the case before any other court competent to hear the dispute in accordance with theprovisions of the Belgian Judicial Code or the laws of the country in which
the supplier has its registered office.

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