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1. Scope

These General Conditions of Purchase (“Conditions of Purchase”) apply to all business relationships with business partners and suppliers of Chemofast (“Supplier”) with regard to the delivery of movable property (“Goods” or “Product(s)”) and/or services, without Consideration of whether the supplier performs the service himself or buys it from subcontractors. The purchasing conditions only apply if the supplier is an entrepreneur (Section 14 of the German Civil Code; “BGB”), a legal entity under public law or a special fund under public law.
The terms and conditions of purchase apply in their current version as a framework agreement for future contracts for the sale and/or delivery of movable items and/or services with the same supplier. The current version of the purchasing conditions is available at www.chemofast.com.
These purchasing conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the supplier only become part of the contract if and to the extent that Chemofast has expressly agreed to their validity in writing. This approval requirement applies in any case, for example even if Chemofast accepts the supplier's deliveries without reservation while being aware of the supplier's general terms and conditions.
Individual agreements made with the supplier in individual cases (including ancillary agreements, supplements and changes) take precedence over these purchasing conditions. However, a written contract or the written confirmation of Chemofast is authoritative for the content of such agreements.
Legally relevant declarations and notifications that are to be submitted to Chemofast by the supplier after the conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in writing in order to be effective.
References to the validity of legal regulations only have clarifying meaning. Even without such a clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these terms and conditions of purchase.

2. Conclusion of contract

An order from Chemofast is binding at the earliest upon written submission or confirmation. Deliveries for which there are no written orders will not be accepted. The order in the EDI process or comparable digital ordering systems is equivalent to the written order or confirmation. Chemofast's silence regarding offers, requests or other declarations by the supplier shall only be deemed consent if this has been expressly agreed in writing. The supplier must notify Chemofast immediately of any obvious errors (e.g. spelling or calculation errors) and/or incomplete orders or missing order documents so that they can be corrected or completed; otherwise the contract is deemed not to have been concluded.
If the supplier does not have to change the order in terms of quantity, price or delivery date, Chemofast generally refrains from sending a written order confirmation. At the express request of Chemofast, however, the supplier is obliged to confirm the order in writing within a period of one (1) week or to execute it immediately and without reservation.
A modified or late acceptance is considered a new offer and always requires acceptance by Chemofast. The same applies to an acceptance under extensions, restrictions or other changes.
Offers, drafts, samples and samples from the supplier are free of charge for Chemofast. At the request of Chemofast, the supplier must take them back immediately and at his own expense.

3. Delivery time and delay in delivery

The delivery time specified by Chemofast in the order is binding. The supplier is obliged to inform Chemofast immediately in writing, stating the reasons and the expected delay, if it is foreseeable that agreed delivery times cannot be met. Before the agreed delivery time, partial deliveries or deliveries may only be made with the prior written consent of Chemofast.
If the supplier does not provide his service or does not do so within the agreed delivery time or if he is in default, Chemofast's rights - in particular to withdrawal and damages - are determined by the statutory provisions.
Chemofast's claim to delivery is only excluded if the supplier, at Chemofast's request, pays full compensation instead of delivery. Acceptance of the delayed delivery does not constitute a waiver of claims for damages or the contractual penalty.

4. Delivery, transfer of risk, default of acceptance, packaging

Unless otherwise agreed in individual cases, deliveries are made "free domicile" (DDP destination according to INCOTERMS 2020) to the place specified in the order. If the destination is not specified and nothing else has been agreed, delivery must be made to Chemofast's place of business in 47877 Willich. The respective destination is also the place of performance (obligation to deliver).
The risk of accidental loss and accidental deterioration of the item is transferred to Chemofast upon delivery at the place of performance. If acceptance has been agreed, this is decisive for the transfer of risk.
The statutory provisions shall apply to the occurrence of default in acceptance by Chemofast. However, the supplier must also expressly offer Chemofast its service if a specific or determinable calendar time has been agreed for an action or cooperation on the part of Chemofast. If Chemofast is in default of acceptance, the supplier can demand reimbursement of his additional expenses in accordance with the statutory provisions.
Drawings and documents, in particular those required for the installation, operation, maintenance or repair of the delivery item, will be made available by the supplier in good time and without being asked, at the latest with the delivery of the delivery item, free of charge.

5. Information Obligations, Subcontractors

The supplier must inform Chemofast in writing in good time of any changes in manufacturing processes, changes in materials or parts supplied for products or services, relocations of production sites, changes in procedures or equipment for testing the parts or other quality assurance measures. Chemofast has the right to check whether the changes can have an adverse effect on the product. Upon request, the supplier must provide the necessary documents and enable audits to a reasonable extent.
Chemofast must be notified in writing of the use of subcontractors, freelancers, subcontractors and other third parties (collectively "agents") who are not employees of the supplier in connection with the provision of services owed to Chemofast. In relation to the agent, the supplier must contractually ensure that all services are carried out completely and properly, that the proper provision of services can be comprehensively checked by appropriate documentation and regular audits by Chemofast, and that the obligations arising from the contractual relationship with Chemofast also apply in relation to the agent.
Agents are considered vicarious agents of the supplier. Failures, delays, disruptions, poor performance or other errors in the deliveries and services of the agents, regardless of what these failures are based on, do not release the supplier from his performance obligation from the contract concluded with Chemofast.
If the supplier or a representative has to perform services on Chemofast's premises, the supplier will ensure that the contractor agreement submitted by Chemofast prior to the performance of the services is signed and that both this contractor agreement and the other provisions of the company regulations are fully observed by the respective persons .

6. Prices, invoices, terms of payment, offsetting and retention

The price stated in the order is binding. All prices are exclusive of statutory sales tax, even if this is not shown separately. This also applies to any ancillary services to be provided by the supplier.
Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the supplier as well as all ancillary costs (e.g. proper packaging, customs, import duties, transport costs including any transport and liability insurance).
Invoices are to be sent to Chemofast in duplicate separately for each order, stating the invoice number, order number, quantity, price and other allocation features (in particular Chemofast article number). The invoices are to be sent separately from the delivery of goods. In the case of deliveries from areas outside the customs area of the EU, a copy of the invoice or a pro forma invoice must be enclosed with the delivery of goods.
Payments are made according to the individually agreed payment terms. In the case of bank transfer, payment has been made on time if Chemofast's bank transfer order is received by Chemofast's bank before the end of the payment period; Chemofast is not responsible for delays caused by the banks involved in the payment process. Payment is subject to invoice verification.
Chemofast does not owe interest on maturity. The interest on arrears is five (5) percentage points above the base interest rate per year. The statutory provisions shall apply to the occurrence of default by Chemofast. In any case, however, a written reminder by the supplier is required.
Chemofast is entitled to rights of offsetting and retention as well as the defense of non-fulfilment of the contract to the extent permitted by law. In particular, Chemofast is entitled to withhold payments that are due as long as Chemofast is still entitled to claims from incomplete or defective services against the supplier.
The supplier only has a right of offsetting or retention due to legally established or undisputed counterclaims.

7. Retention of title and provision

The transfer of ownership must take place unconditionally when the goods are handed over to Chemofast and regardless of the payment of the price. However, if Chemofast accepts an offer from the supplier for transfer of ownership that is conditional on the payment of the purchase price, the retention of title by the supplier expires at the latest when the purchase price for the delivered goods is paid. Any extended or expanded retention of title by the supplier is excluded.
The supplier shall process, mix or combine items provided by Chemofast for Chemofast. It is agreed that Chemofast will become co-owner of the products manufactured using the provided items in proportion to the value of the provided items to the value of the entire product, which will be kept by the supplier for Chemofast until the time of handover.

8. Confidentiality, Records and Reference

All business or technical information made accessible by Chemofast is to be kept secret from third parties as long as and insofar as it is not demonstrably public knowledge. This information may only be made available in the supplier's own operations to those persons who need this information for the purpose of delivery to Chemofast and who have also been sworn to secrecy to the same extent.
Chemofast retains ownership of all documents and aids provided by Chemofast to the supplier for the execution of an order, such as in particular drawings, illustrations, drafts, calculations, descriptions, plans, models, samples, technical specifications, data carriers, other documents, tools, parts and materials - and copyrights. Such documents and aids are to be used exclusively for the contractual service. Products that are manufactured according to documents and tools from Chemofast may not be used by the supplier himself, nor may they be offered or delivered to third parties. Confidential information which Chemofast has given to the supplier must be returned or destroyed after completion of the activity. This obligation does not apply to routinely made backup copies of electronic data traffic. This obligation also does not apply to confidential information and copies thereof, which the supplier is required to keep under applicable law.
Technical documents, documents, drawings, diagrams, schemes, graphics, photographs, layout templates and other documentation produced by the supplier as part of the execution of the order - whether on data carriers, in printed form or as material for printing preparation or printing - as well as all samples, tools , materials and other resources become the property of Chemofast when they are made available. Furthermore, Chemofast receives all rights of ownership, use and exploitation of all the above-mentioned works subject to copyright – to the extent permitted by law. No separate remuneration is owed by Chemofast for the transfer of the above rights; it is fully included in the prices stated in the orders.
Supplier is prohibited from citing Chemofast or the business relationship between Supplier and Chemofast as a reference in any form without prior express written consent.

9. Defective Delivery

The statutory provisions shall apply to the rights of Chemofast in the event of material and legal defects in the goods and in the event of other breaches of duty by the supplier, unless otherwise specified below.
According to the statutory provisions, the supplier is particularly liable for ensuring that the goods have the agreed quality when the risk passes to Chemofast. In any case, those product descriptions that are the subject of the respective contract – in particular through designation or reference in the order from Chemofast – shall be deemed to be an agreement on the quality. It makes no difference whether the product description comes from Chemofast or from the supplier.
Deviating from § 442 paragraph 1 sentence 2 BGB, Chemofast is entitled to unrestricted claims for defects even if the defect remained unknown at the time the contract was concluded due to gross negligence.
The statutory provisions (§§ 377, 381 of the German Commercial Code; "HGB") apply to the commercial obligation to inspect and give notice of defects, with the following proviso: Chemofast's obligation to inspect is limited to defects that can be detected during the incoming goods inspection by Chemofast with external assessment including the delivery documents and the quality control of Chemofast in the random sampling procedure are openly recognizable (e.g. transport damage, incorrect and short deliveries). If acceptance has been agreed, there is no obligation to inspect. It also depends on the extent to which an investigation is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The obligation to give notice of defects discovered later remains unaffected. In all cases, the complaint by Chemofast (notification of defects) is deemed to be immediate and timely if it is received by the supplier within 10 calendar days.
The costs incurred by the supplier for the purpose of testing and rectification shall also be borne by the supplier if it turns out that there was actually no defect. Chemofast's liability for damages in the event of an unjustified request for rectification of defects remains unaffected. However, Chemofast is only liable in this respect if Chemofast recognized or negligently failed to recognize that there was no defect.
If the supplier does not meet its obligation to provide subsequent performance - at Chemofast's option by eliminating the defect (rectification) or by delivering a defect-free item (replacement delivery) - within a reasonable period set by Chemofast, Chemofast can remedy the defect itself and the supplier Reimbursement of the expenses required for this or a corresponding advance payment. If the supplementary performance by the supplier has failed or is unreasonable for Chemofast (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline is required; Chemofast will inform the supplier of such circumstances immediately, if possible in advance.
If the supplier fulfills its obligation to provide supplementary performance by delivering a replacement, the limitation period for the goods delivered as a replacement begins to run anew after delivery, unless the supplier has expressly and appropriately reserved the right to make the replacement delivery as a gesture of goodwill, in order to avoid disputes or in the interest of the continued existence of the supply relationship.
In addition, Chemofast is entitled to reduce the purchase price or to withdraw from the contract in the event of a material defect or defect of title in accordance with the statutory provisions. In addition, Chemofast is entitled to compensation for damages and reimbursement of expenses in accordance with the statutory provisions.

10. Exclusivity

If products marked with the Chemofast brand or with a third-party brand commissioned by Chemofast (customer-specific private label) are legitimately returned by Chemofast or are not accepted by Chemofast, the supplier must destroy these products and may not resell them to third parties or place them on the market in any other way.
The supplier is obliged to pay a contractual penalty for each individual culpable violation of the obligation from paragraph 1. The contractual penalty for violations of paragraph 1 is twice the value of the affected goods, but at least EUR 15,000.
The further assertion of claims for damages, in particular due to legal claims by Chemofast, remains unaffected by this regulation.

11. Supplier Recourse

In addition to claims for defects, Chemofast has unrestricted rights to the statutory recourse claims of Chemofast within a supply chain (supplier recourse in accordance with §§ 478, 445a, 445b BGB). In particular, Chemofast is entitled to demand exactly the type of supplementary performance (repair or replacement delivery) from the supplier that Chemofast owes its customer in the individual case. This does not restrict Chemofast's statutory right to choose (§ 439 Para. 1 BGB).
Before Chemofast recognizes or fulfills a defect claim asserted by its customer (including reimbursement of expenses according to §§ 478 Para. 3, 439 Para. 2, 3 BGB), Chemofast will notify the supplier and ask for a written statement with a brief description of the facts. If the statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by Chemofast is deemed to be owed to its customer; in this case, the supplier is responsible for providing evidence to the contrary.

12. Product liability and compulsory insurance

In the event that claims are made against Chemofast due to product liability, the supplier is obliged to indemnify Chemofast against such claims if the damage was caused by a defect in the goods delivered by the supplier. In cases of fault-based liability, however, this only applies if the supplier is at fault. If the cause of the damage lies within the supplier's area of responsibility, he must prove that he is not at fault.
As part of its obligation to indemnify, the supplier shall assume all costs and expenses arising from or in connection with claims made by third parties, including recall campaigns carried out by Chemofast. Before a recall action, Chemofast will inform the supplier, allow him sufficient cooperation and exchange with him about an efficient implementation; this is not necessary if the information or involvement of the supplier is not possible due to the particular urgency.
The supplier is also liable for damage caused by Chemofast through appropriate precautionary measures to protect against non-contractual liability claims, which are largely attributable to the supplier (e.g. public advertising measures).
Further legal claims remain unaffected.
During the contractual relationship with Chemofast, the supplier must always have sufficient product liability insurance at its own expense maintain insurance. Upon request, the supplier must prove to Chemofast that product liability insurance has been taken out and that it is in force.

13. Statute of Limitations

Unless otherwise stipulated in the following provisions of this section, the claims become time-barred in accordance with the statutory provisions.
Contrary to § 438 Section 1 No. 3 BGB, the general limitation period for claims for defects is 3 years from the transfer of risk. The 3-year statute of limitations also applies accordingly to claims from legal defects, whereby the statutory statute of limitations for material surrender claims of third parties (§ 438 Para. 1 No. 1 BGB) remains unaffected; In addition, claims arising from defects of title do not become time-barred under any circumstances as long as the third party can still assert the right against Chemofast – in particular in the absence of a statute of limitations.
The statutes of limitations for sales law, including the above extension, apply – to the extent permitted by law – for all contractual claims for defects. Insofar as Chemofast is also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) applies, unless the application of the limitation periods of the purchase law leads to a longer limitation period in individual cases.

14. Export Control and Customs

The supplier is obligated to inform Chemofast of any licensing requirements for his goods in accordance with the applicable German, European (EU), US American export, customs and foreign trade laws as well as the export, customs and foreign trade laws of the country of origin of his goods as early as possible before the delivery date in writing. To this end, the supplier must provide the following information and data:
1. the export list number in accordance with Annex AL to the German Foreign Trade and Payments Ordinance or comparable list positions of relevant export lists;
2. the "Export Control Classification Number" according to the "US Commerce Control List" (ECCN) if the goods are subject to the "US Export Administration Regulations" (EAR);
3. the statistical commodity code (HS/CN code);
4. the country of origin (commercial policy/non-preferential origin), code for origin identifiers: D = third country / E = EU / F = EFTA
5. (Long-term) supplier declarations on preferential origin (for EU suppliers) or certificates for preferences (for non-EU suppliers)
all other information and data that Chemofast requires for export and import as well as in the case of resale when re-exporting the goods.

The supplier is obliged to inform Chemofast immediately in writing of any changes to the above information and data.

3. If the supplier violates his obligations according to paragraph 1, he shall bear all expenses and damages as well as other disadvantages (e.g. additional demands for foreign import duties, fines) that Chemofast incurs as a result. This does not apply if the supplier is not responsible for the breach of duty.

15. Compliance

The supplier is to comply with the recognized rules of technology (in particular DIN standards, VDE regulations, VDI guidelines, DVGW regulations) and the legal provisions on product safety (in particular the Product Safety Act), the internationally applicable minimum labor standards, in particular all conventions Committed to the International Labor Organization ("ILO") with regard to employee rights, working hours and occupational safety, as well as all applicable statutory and official provisions.
Chemofast operates an environmental management system according to DIN EN ISO 14001:2015. Environmental protection has a high priority within Chemofast's understanding of quality. The supplier undertakes to comply with the respective legal regulations on environmental protection and to introduce and maintain an environmental management system that corresponds to Chemofast's ecological corporate guidelines and to work on permanently reducing the adverse effects on people and the environment arising from its activities. The currently valid version of Chemofast's ecological corporate guidelines can be accessed at www.chemofast.de.
The supplier will not participate actively or passively, directly or indirectly, in any form of bribery or corruption, violation of human rights or discrimination against its employees, forced labor or child labor
The supplier undertakes to comply with the Code of Compliance of the Würth Group in its currently valid version, available at www.wuerth.de/lieferanten .
In this context, the supplier undertakes not to hire any employees who are not at least 15 years old. In countries that fall under the exception for developing countries under ILO Convention 138, the minimum age may be reduced to 14 years.
The supplier shall ensure that all agents engaged by him who are involved in any way in the manufacture of the products he supplies to Chemofast will comply with the obligations listed in paragraphs (1) to (5) above.
Furthermore, the supplier shall ensure that the products it supplies comply with the provisions of Regulation (EC) No. 1907/2006 on the registration, evaluation, authorization and restriction of chemical substances (“REACH-VO”). The substances contained in the supplier's products are pre-registered to the extent required by the provisions of the REACH Regulation or registered after the transition periods have expired, provided the substance is not exempt from registration.
Suppliers who have their company headquarters in countries outside the EU undertake to appoint an Only Representative ("OR") in accordance with Art. 8 REACH-VO with headquarters in the EU, whose name and address must be disclosed to Chemofast. The OR assumes all registration and other REACH obligations of the supplier. If the OR has carried out a pre-registration or registration, Chemofast must be informed of this, stating the registration number. In the event of a change in the OR or the cessation of the OR's activities, the supplier must inform Chemofast immediately.
The supplier assures that the products delivered by him do not contain any substances from the so-called candidate list according to Art. 59 paragraphs (1) and (10) of the REACH regulation. The supplier undertakes to inform Chemofast immediately in writing if - for whatever reason - products supplied by him contain substances on the candidate list; this applies in particular in the case of an extension / addition to the list of candidates. The supplier names the individual substances by name and communicates the mass percentage related to the individual product components as precisely as possible.
If hazardous substances within the meaning of the Ordinance on Hazardous Substances or products whose use cannot be ruled out the release of such substances are delivered, the supplier must provide Chemofast or the service provider commissioned by Chemofast with the data required to create the safety data sheet without being requested to do so.
The supplier further undertakes that the products it supplies meet all the requirements of Regulation (EC) No. 1272/2008 (“CLP-VO”). In particular, the non-EU suppliers are responsible for ensuring that their OR has reported the delivered products in the classification and labeling directory in accordance with Art. 39-42 CLP-VO.
If the products delivered by the supplier to Chemofast are construction products within the meaning of Regulation (EU) No. 305/2011 ("BauPVO"), the supplier is obliged to provide all information required to create the declaration of performance or the information provided by the supplier to make the declarations of performance prepared available to Chemofast immediately and in a suitable permanent form and to affix or affix the CE marking to these products in accordance with the applicable legal provisions, in particular the BauPVO and Article 30 of Regulation (EC) No. 765/2008 to permit. By affixing the CE marking, the supplier guarantees the conformity of the construction product with the performance it has declared, as well as compliance with all applicable legal provisions in connection with the affixing of the CE marking.
If the products delivered by the supplier to Chemofast are products within the meaning of European harmonization legislation, the supplier is obliged to provide Chemofast with all the information required to create the declaration of conformity or the declarations of conformity created by the supplier immediately and in a suitable permanent form and have the CE marking affixed to these products or have them affixed in accordance with the applicable legal provisions, in particular the applicable harmonization legislation and Article 30 of Regulation (EC) No. 765/2008. By affixing the CE marking, the supplier guarantees the conformity of the product with the applicable harmonized standards and harmonization legislation, as well as compliance with all legal provisions in force in connection with the affixing of the CE marking.
Supplier agrees to comply with the provisions of Section 1502 of the Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") relating to conflict minerals. If conflict minerals are necessary in the context of production or for the function of the products supplied by the supplier, their origin must be disclosed. Upon request, the supplier must provide Chemofast and the companies associated with Chemofast with the documentation required under the Dodd-Frank Act on the use and origin of conflict minerals in full and without delay.
In the event that the supplier violates one of the aforementioned obligations, the supplier shall indemnify Chemofast, the companies affiliated with Chemofast and their customers against all costs, third-party claims (in particular direct or indirect claims for damages) and other disadvantages (e.g. fines). ) due to the violation of the above provision. This does not apply if the supplier is not responsible for this breach of duty. Furthermore, Chemofast is entitled at any time to cancel the corresponding order immediately and to refuse acceptance of the corresponding delivery without Chemofast incurring any costs as a result. Any existing claims for damages remain unaffected. A cancellation or refusal to accept does not constitute a waiver by Chemofast of any claims for damages.

16. Choice of Law and Venue

The law of the Federal Republic of Germany applies to these terms and conditions of purchase and all legal relationships between Chemofast and the supplier, to the exclusion of uniform international law, in particular the UN Sales Convention. Prerequisites and effects of the retention of title are subject to the law of the place where the goods are located if, according to the provisions of national law, the choice of law made in favor of German law is inadmissible or ineffective.
If the supplier is a merchant within the meaning of §§ 1 ff. HGB, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising from or in connection with the contractual relationship is Willich, Germany . However, Chemofast is also entitled to file suit at the place of fulfillment of the delivery obligation according to this agreement or a prior individual agreement or at the general place of jurisdiction of the supplier. Overriding legal regulations, in particular regarding exclusive responsibilities, remain unaffected.

As of August 2020

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