GENERAL TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS AND SERVICES
BY
ASK-Chemicals GmbH,
ASK-Chemicals CoreTech GmbH and ASK-Chemicals Metallurgy GmbH (“ASK”)
1.

Area of Applicability

1.1

The following General Terms and Conditions shall apply to all deliveries of goods and theprovision of services and deliverables (Werklieferungsleistungen and Werkleistungen) toASK. Any change to these terms and conditions shall be valid only if has been confirmedin writing by ASK.
Any terms and conditions of a supplier of goods, services and deliverables (“Supplier”)
that conflict with or deviate from these terms and conditions shall apply only if they havebeen acknowledged in writing by ASK. In particular, ASK shall be bound by the Supplier’s
general terms and conditions only insofar as they are consistent with ASK’s General
Terms and Conditions or as ASK has consented thereto in writing. Acceptance ofdeliveries and payments shall not constitute consent to any of the Supplier’s general termsand conditions.

1.2

2.

Conclusion of Contracts and Right of Withdrawal

2.1

ASK can revoke an order if the Supplier has not accepted the order in writing within 2weeks of its receipt.
If the order confirmation deviates from the order, ASK shall be bound only if it hasconsented in writing to the change.

2.2

3.

Delivery Times and Performance Times

3.1

THE TIMELINESS OF DELIVERY AND PERFORMANCE IS A MATERIALCONTRACTUAL OBLIGATION. All deliveries must occur at the times specified in theorder or otherwise agreed with ASK in writing. The failure to adhere to such times shallconstitute a material breach by the Supplier.
If the Supplier becomes aware that a delay may be possible, the Supplier shall inform ASK
immediately.
The statutory remedies shall apply to claims of ASK in the event of delay. Acceptance of alate delivery shall not constitute a waiver of such claims.
A demand for damages in lieu of performance shall not supplant ASK’s legal right toperformance; such right shall expire only when ASK has received damages in full.
For deliveries in connection with the establishment or expansion, conversion or alterationof existing manufacturing facilities where such deliveries have been so designated inASK’s purchase orders, the Supplier shall pay liquidated damages for each commenced
week of delay in the amount of 1% of the net order value, up to a total of 10%; suchliquidated damages shall be credited toward actual substantiated damages, if greater.

3.2
3.3
3.4
3.5

4.

Deliveries, Packaging and Marking

4.1

The Supplier shall execute the deliveries ordered by ASK in full. Partial or advancedeliveries shall not be permitted without ASK’s written consent.
In the event of force majeure such as natural disasters, riots, official actions etc. andtransport disruptions, strikes, lockouts and other operational disruptions in ASK’s sphere orthat of one of its subcontractors that result in a discontinuation or cutback of ASK’sproduction or that prevent ASK from accepting the ordered goods or services as agreed,

4.2

Page 1ASK shall be excused for the duration and extent of such events from its obligations under
the contract insofar as ASK is unable, using reasonable means, to avoid such disruptions.
In such cases, the Supplier shall have no claims to consideration or damages. In the eventthat ASK is prevented from accepting the goods, the Supplier shall properly store them at
its expense and risk until ASK takes possession of them.
4.3 The Supplier shall affix ASK’s order number on all contractual documents (including bills ofdelivery, accompanying documents, shipping tickets and other correspondence), including
documents prepared by the Supplier. The same shall apply with respect to the marking ofcontainers and other packaging units. The Supplier shall be responsible for theconsequences any omission.
4.4 The delivery shall be effectuated in appropriate packaging, taking into account relevantlaws (including environmental laws). Packing materials shall be returned by ASK at theexpense and risk of the Supplier. Reusable packaging shall be designated as such. Nonreusable packaging shall be returned by ASK at its own discretion.
4.5 The Supplier shall mark goods and packing materials with hazardous materials
designations as customary in international commerce and also, as applicable, withadditional such designations as required by law and governmental requirements.
Additionally, all packaging and contract documents shall set forth the required hazard
warnings in German and English.
4.6 The supplier guarantees that all substances contained in the goods were pre-registered inaccordance with the relevant requirements of REACH-VO and will be registered andapproved within the transition period. Within the scope of substance security evaluation
the usage informed by ASK will be supported and considered from the supplier for theREACH restriction. Furthermore he supplier ensures that all duties (Article 3 no. 32
REACH-VO) relating to the supply of goods will be executed in due form according toREACH.
5.

Prices5.1

The prices specified by ASK in the purchase order shall be fixed prices. If the contract isbased on a cost estimate by the Supplier, such estimate shall be binding. Amendments
must be agreed in writing.
If no price is specified in a purchase order, the Supplier shall specify the price, including
any applicable discounts, in the order confirmation. In such case, a contract shall comeinto existence only when ASK has consented to the price in writing.
All deliveries shall be delivered duty paid (DDP as per ICC Incoterms 2010) and shall
include unloading at the location designated by ASK in each individual case. ASK shallpay for packaging only if ASK expressly agreed to do so; in such case, the costs ofpackaging shall be identified separately in the invoice. The Supplier shall accept the returnof all packing materials free of carriage charges; in such case, ASK shall be credited thecost of packing materials invoiced to ASK.
ASK shall reimburse the Supplier for insurance premiums only if ASK expressly requested
insurance in the purchase order.

5.2

5.3

5.4

6.

Payment

6.1

Payments shall be made by bank transfer and, unless otherwise agreed, shall bediscounted 3% if paid within 25 days or shall be paid in full within 60 days.
The payment period shall commence as soon as the delivery has been made inaccordance with the contract, ASK has declared its acceptance, and the properly issued
invoice has been received by ASK. The invoice must indicate the Supplier’s VAT number
as well as ASK’s order number and the date of the order. A separate invoice shall be6.2

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6.3

6.4

issued for each delivery. The invoice shall also indicate the mode of shipping and place of
dispatch, country of origin of the products and, if applicable, transport and packing
charges.
To the extent required by law, ASK shall retain 15% of the amount owed and pay oversuch amount to the tax office if the Supplier fails to furnish a valid tax exemption certificate
issued by its tax office by no later than invoicing.
In the event of default, ASK shall be entitled to substantiate that the Supplier suffered asmaller loss than the statutory default interest rate. Absent such substantiation, ASK shall
pay default interest at a rate of 3 % above the applicable basic statutory interest rate
pursuant to §247(1) of the German Civil Code (BGB).

7.

Acceptance and Notification of Defects

7.1

ASK shall have the right to verify conformity of deliveries to the contract through random
sampling.
Formal acceptance shall be required for deliveries of goods that are assembled or
installed, for deliveries of individualized items that the Supplier has newly manufactured or
created, and for the supply of deliverables (Werkleistungen). Passage of the risk shalloccur upon acceptance by ASK.
Notice of defects can be given within 5 business days after delivery, and notice of hidden
defects can be given within 5 days after they are discovered.

7.2

7.3

8.

Defective Deliveries

8.1

The Supplier shall deliver all goods and render all services free of quality and legal
defects. The statutory remedies and limitations periods shall apply to claims of ASK for
defective deliveries.
8.2. All of the requirements in respect of deliveries communicated by ASK to the Supplier shallbe deemed contractually agreed. The Supplier guarantees that the purchased products
satisfy the warranted specifications.
8.3 A delivery shall be defective in its entirety if the random sampling of the goods revealed
defects.
8.4 The Supplier may refuse to render corrective performance in the manner elected by ASK
for reasons of disproportionate costs only if the costs of the selected corrective
performance exceed the original price of the defective goods by more than double.
8.5 ASK, at the Supplier’s expense, can either correct the defects itself or have them corrected
if the delivery occurred after default and ASK has a significant interest in immediate
corrective action.
8.6 If the Supplier, in bad faith, failed to disclose a defect, ASK shall be entitled to demanddamages instead of performance, even in the event of successful corrective performance.
9.

Passage of Title
The delivered goods shall remain the property of the Supplier until it has been fully paid.
The Supplier grants ASK the right to further process and resell the goods in the ordinary
course of business. In the case of further processing (combining, mixing and processing),
ASK grants the Supplier a pro rata co-ownership interest in the new item; in the event of aresale of the delivered goods or the new item prior to full payment, ASK hereby alreadyassigns to the Supplier in advance the claims arising out of such resale up to the amountof the Supplier's purchase price claim.

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10.

Trade Secret Protection and Confidentiality

10.1 Drawings, samples, formulas, tools and other documents and materials that ASK madeavailable, delivered, paid for or for which ASK has been invoiced in connection with anoffer or in implementation of a contract shall remain the property of ASK and may not becopied nor used for any purpose inconsistent with the contract and shall be returned toASK after rejection of the offer or performance of the contract. The Supplier shall properly
safeguard such materials, keep them free of encumbrances by third parties and at its own
expense shall insure them for their replacement value. In the event of loss or diminution ofvalue, except for ordinary wear and tear, the Supplier shall pay restitution.
10.2 If the Supplier receives information from ASK that is designated as confidential or as
needing to be kept secret (hereinafter, “Confidential Information”), the Supplier shall notdisclose such Confidential Information to third parties or use the information for any
purpose inconsistent with the contract for a period of five years after such notice without
the prior written consent of ASK; the foregoing shall not apply, however, if it can besubstantiated that the Confidential Information was known to the Supplier prior to its
disclosure that such Confidential Information became generally publicly known during theperiod of the non-disclosure obligation, provided that such disclosure was not caused by
the Supplier’s breach. The Supplier shall impose such obligation on its employees
accordingly.
11. Industrial Property Rights and Copyrights (hereinafter, “Intellectual PropertyRights”).
11.1 The Supplier warrants that the delivery and use of the goods and services do not infringe
third-party Intellectual Property Rights domestically or abroad. The Supplier shallindemnify ASK for all claims asserted against ASK for infringement of Intellectual Property
Rights. In the event of an infringement of Intellectual Property Rights, ASK shall be entitledto assert claims against the Supplier for damages and all statutory and contractual claims,
including for parts of the delivery that the Supplier procured from third parties. In the eventof a grant of licenses or sublicenses, the Supplier shall ensure that ASK is allowed to use
the goods in all countries in which corresponding Intellectual Property Rights exist.
11.2 Intellectual Property Rights to products or processes that the Supplier develops on behalfof ASK shall accrue exclusively to ASK. Upon delivery, the Supplier shall deliver to ASK all
samples, drawings, formulas, tools, software (including source codes) and similar items.
Insofar as Intellectual Property Rights arise in the sphere of the Supplier, the Supplier shallassign such rights to ASK together with the delivery.
12.

Consigned Goods

12.1 Where agreed, ASK shall deliver goods to the Supplier that the Supplier shall use in themanufacture of goods or the provision of services (hereinafter, “Consigned Goods”).
12.2 The Supplier shall store the Consigned Goods separately and mark them as the propertyof ASK.
12.3 Except as specifically permitted otherwise, Consigned Goods may be used only for themanufacture of the goods or services ordered by ASK, and ASK shall be deemed themanufacturer and owner of the new product. If several of such manufacturers’ clauses
apply contemporaneously, ASK shall be deemed co-manufacturer and accordingly coowner of the new products in the proportion that the value of ASK’s Consigned Goods
bears to the total value of the processed goods of all co-manufacturers.
12.4 Surplus Consigned Goods shall be returned by the Supplier on its own initiative, or can bepicked up by ASK at any time. Additionally, the Supplier may retrieve goods from thirdPage 4

parties that are consigned for the account of ASK only to its own address or the address
specified by ASK. Ownership of the Consigned Goods shall pass to ASK immediately
upon delivery to the Supplier, and the Supplier shall act as bailee for ASK.
13.

Delivery of Spare Parts
The Supplier shall continue to supply spare parts for deliveries for use in production
facilities and other deliveries for at least 5 years after delivery.

14.

Liability

14.1 The Supplier shall be liable as provided by law.
14.2 If claims are asserted against ASK for product liability or environmental liability or forviolations of official or other safety regulations or standards, the Supplier shall indemnify
ASK upon demand for such claims insofar as the goods or services provided were thecause of the harm and the Supplier does not prove that the Supplier is not responsible forsuch harm.
14.3 In this respect, the Supplier shall also reimburse ASK for any expenses in accordance with§§683 and 670 of the German Civil Code (BGB) that arise out of or in connection with arecall action carried out by ASK. ASK shall inform the Supplier as to the substance andscope of the recall measure to be carried out as much as possible and reasonable andafford the Supplier an opportunity to comment.
14.4 For hazardous goods such as acids, the Supplier shall inform the Supplier in writing of thehazards emanating from such goods including, in particular, the uses for which they may
not be deployed, and with what other goods they may not be combined or mixed.
15.

Product Liability Insurance and Obligation to Monitor

15.1 The Supplier shall maintain a product liability insurance policy with a minimum coverageamount of €10 million per event of loss for the duration of the supply relationship. TheSupplier shall also furnish ASK upon demand a certificate of insurance coverage. The
Supplier’s liability pursuant to no. 14 remains unaffected thereby. .
15.2 The supplier shall continuously monitor the delivered goods and services. If defects should
be discovered by the Supplier or by third parties, the Supplier shall inform ASK
immediately in writing.
16.

Compliance with Safety and Environmental Rules
The Supplier shall independently comply with the public laws and, upon entering ASK
premises, ASK’s internal safety and environmental protection rules, and shall furnish proofof compliance to ASK upon demand.

17.

Compliance with Laws
The Supplier shall comply with all applicable laws, decrees, rules and regulations in theperformance of its obligations. Besides the aspect of quality, the supplier shall be obliged
to consider the aspects of safety, enviromment and a considerate handling of energy.
.

18.

Compliance with Export Control Laws / Supplier Declarations

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The Supplier shall furnish ASK, upon demand and free of charge, supplier declarations forgoods with or without preferential origin of goods and certificates of origin in accordancewith the definition applied by the customs authorities, and shall present substantiation for
its declarations to the customs authorities upon demand. The Supplier also shall furnish
ASK, upon demand and free of charge, a list of product ingredients of the goods delivered
to ASK.
19.

Most Favored Treatment
By accepting an order from ASK, the Supplier warrants that the terms for goods andservices afforded to ASK are at least equal to those that the Supplier grants to othercustomers for the same or similar goods or services in the same or lesser quantities. TheSupplier shall keep ASK informed of any price reductions. In the event of a particular pricereduction for goods and services by the Supplier, ASK shall be entitled to a corresponding
reduction of the price of all still outstanding deliveries.

20.

Transferability
Rights and obligations under the contractual relationship including, in particular, claims
against ASK, may be assigned to third parties only with the prior written consent of ASK.
The Supplier shall inform ASK promptly in advance in the event that it is necessary toassign a claim against ASK because of an extended reservation of title of an upstream
supplier.

21.

Gratuities
The Supplier warrants that the Supplier has not granted, nor will grant in the future, any
gratuity to any employee, agent or representative of ASK with a view to doing businesswith ASK or influencing such persons with respect to the conditions or performance of apurchase contract or any other contract with ASK.

22.

Set-off
The Supplier may set off only such claims as are undisputed or finally adjudicated. The
same shall apply to rights of retention which, in addition, must be based on the same
contractual relationship.

23.

Advertising
The Supplier may advertise the fact of ASK’s order or the business relationship with ASK
only with the written consent of ASK.

24.

Data Protection
In accordance with the German Federal Data Protection Act, ASK provides notice that theSupplier data received in connection with the business relationship can be processed by
ASK for its own purposes and can also be made available to its affiliates.

25.

General Provisions

25.1 The place of performance in each case shall be the address specified for ASK for delivery
or performance.

Page 625.2 Insofar as the customer is a merchant (Kaufmann), a legal entity under public law or apublic-law special fund (öffentlichrechtliches Sondervermögen) or is not generally subject
to jurisdiction in Germany, the exclusive jurisdiction and venue shall be Düsseldorf, unlessotherwise agreed. ASK, however, shall retain the right to bring an action against theSupplier at the place of its registered office.
25.3 These terms and conditions shall be governed exclusively by the law of the Federal
Republic of Germany to the exclusion of conflicts of laws rules. The UN Convention on theInternational Sale of Goods (CISG) shall not apply.

Effective as of: September 2017

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Subject to change