TERMS AND CONDITIONS

OF PURCHASE



of the company

 

Hella KGaA Hueck & Co.,
Rixbecker Strasse 75,
59552 Lippstadt,
Germany

 

hereinafter called "Hella", and applicable to the supply of all goods and services by the Supplier to Hella, hereinafter called the "contractual merchandise", "goods", or "services", intended for use in Hella products and in motor vehicles all over the world.

 

 

Content

 

 

 

1

Terms of supply   

 

2

Orders

 

3

Material provided by Hella

 

4

Delivery dates, delay in delivery

 

5

Transport, packaging, transfer of risk

 

6

Payments and terms of payment

 

7

Acts of God anf force majeure

 

8

Transmission of information and physical objects

 

9

Reliability of supply

 

10

Complaints

 

11

Warranty

 

12

Legal liability

 

13

Industiral property rights

 

14

Tools

 

15

General provisions

 

 

 

 

 

1

 

 

1.1

All goods and services ordered by Hella shall be supplied exclusively on these terms and conditions,

unless otherwise agreed in any specific case. No terms and conditions of sale proposed by the Supplier and differing from these can form the basis of the contract, even if Hella does not expressly reject them in any
individual instance. No amendments or additions or any other ancillary agreements shall be valid unless
made in writing.

 

1.2

The specifications, drawings, technical descriptions, and other documentation agreed between Hella

and the Supplier shall apply to the production of the goods or the execution of the services. The supplier shall produce or execute under a quality management system that meets the requirements of EN ISO 9000 et seq., and shall constantly further develop this system in line with the latest state of technology. In addition to this, the "Hella Quality Assurance Guidelines for Suppliers" shall also apply in their most recently published form and as made known to the Supplier.    

 

 

 

 

2

 

 

2.1

Deliveries shall be placed on the basis of Hella's individual written orders or rotating delivery

allocations. The details of the procedure for delivery allocations are laid down in the "Hella Supplier Regulations for Order Processing", which shall form an integral part of all agreements with the supplier.

 

2.2

Individual orders shall be confirmed without delay upon receipt by the supplier. Delivery allocations

shall not require any confirmation by the supplier. The delivery call-offs lying within the specifically defined and binding off-take periods for delivery allocations shall be deemed to have been accepted unless the Supplier rejects them without delay upon receipt of the latest delivery allocation

 

2.3

Hella may request changes to the design and construction of the contractual merchandise within the

limits that the Supplier can reasonably be expected to accept. The effects of any such changes, particularly in increasing or decreasing costs or in changing delivery dates, shall be settled by mutual agreement.

 

 

 

 

3

 

 

3.1

Any material and/or equipment provided by Hella for the goods and/or services to be supplied shall

remain Hella's property. The Supplier shall be under an obligation to treat the same with all due care, to store it properly, and to insure it at its replacement value against fire and damage by water or storm

 

3.2

Before production begins, the Supplier shall inspect the material provided by Hella for any visually

recognisable defects or deficiencies, and to carry out an identification inspection. During production, the supplier shall carry out further inspections, if such have been specifically agreed with Hella or are necessary under the terms of his quality management system. Should the Supplier discover any defects in quality in the material or equipment provided by Hella, Hella shall be informed without delay so that the necessary action can be discussed and agreed.

 

3.4

Material provided by Hella shall always be processed on Hella's behalf. If the value of the material

provided by Hella exceeds the value of the processing plus, if relevant, the other component parts of the
newly created objects, these newly created objects shall likewise become Hella's property; in all other cases,
Hella and the Supplier shall acquire co-ownership rights over them in the proportion of the value of the material provided to the value of the processing and the other component parts

 

3.5

Supplier's commercial rights of attachment as defined in Article 647 of the German Civil Code shall

not be applicable.

 

 

 

 

4

 

 

4.1

Agreed delivery dates shall be binding and shall relate to the date the goods arrive at the unloading 

point stated in the order unless anything to the contrary is specifically agreed.

 

4.2

The Supplier shall inform Hella without delay as soon as he perceives that any delivery will be delayed

 

4.3

In the event of an agreed delivery date not being met, the Supplier shall be under an obligation to

compensate Hella for the loss incurred as a result of the delay if it is attributable to the Supplier.

 

4.4

If Hella grants an extension to the delivery date which expires to no avail, or if Hella has no further

interest in the delivery, Hella can demand compensation for non-fulfilment of contract or cancel the relevant order. In the event of repeated delivery delays, Hella shall be entitled, after issuing the appropriate warning, to cancel all orders with immediate effect that have not yet been fulfilled.

 

 

 

 

5

 

 

5.1

Unless anything is agreed to the contrary, deliveries shall be made carriage paid and with the proper

packaging. The Supplier shall bear any costs incurred in disposing of the packaging.

 

5.2

In all cases, risk shall not be transferred until the goods have been delivered at the agreed unloading

In all cases, risk shall not be transferred until the goods have been delivered at the agreed unloading point. This shall also apply if Hella is to bear the transport costs under a special agreement.  Hella's shipping instruction shall be followed if goods are to be transported at Hella's expense.

 

5.3

All deliveries shall be accompanied by a delivery note in duplicate for the specified location.

 

 

 

6

 

 

6.1

Individually agreed conditions of payment are valid.

 

6.2

The weights and/or dimensions established at the unloading point shall be decisive for the calculation

and payment of deliveries. In the event of any defect or deficiency, Hella shall be entitled to withhold the appropriate proportion of the payment until the contract has been properly fulfilled. Designs, drawings, and samples shall only be paid for if a written agreement to this effect has been made.

 

6.3

The Supplier shall not be entitled to assign his claims to payment, or to arrange for a third party to

collect them, unless Hella has given its prior written assent, although Hella shall not withhold its assent unreasonably. This assent shall be deemed to have been granted already in cases covered by exended reservation of title. If the Supplier does assign his claims against Hella to a third party in contravention of Sentence 1 of this sub-clause, without Hella's assent. the assignment shall nevertheless retain its legal validity. However, Hella may discharge its obligation by making payment to the supplier ot to the third party, at Hella's free dicretion.

 

 

7

 

Industrial disputes, civil commotion, actions by the authorities, and any other unforeseeable, unavoidable,
and serious events shall exempt the contract parties from their performance obligations for the duration of the
disruption and to the extent of their effects. Should the disruptions continue for more than one month, the
parties shall be under a mutual obligation to adapt to the changed circumstances in all good faith.

 

 

8

 

 

8.1

The Supplier shall be under an obligation to treat as confidential all information, other than that which

is common knowledge, that comes to his attention in connection with orders from Hella, meaning in particular drawings, patterns, models, tools, documentation, software, and other data-carriers that Hella makes
available to the Supplier, and shall not pass them on to third parties unless this is absolutely essential for the execution of the work agreed by contract. Any persons engaged by him or any subcontractor shall be placed under a similar obligation of secrecy.

 

 

8.2

The Supplier shall not advertise his business relationship with Hella unless he has been given prior

written consent.

 

8.3

Contract items produced in accordance with Hella's data, drawings, or models, or with tools paid for

in full or in part by Hella, shall not be offered as samples or supplied to third parties unless Hella has previously given its express written consent.

 

 

 

 

9

 

 

9.1

The Supplier shall inform Hella in good time, before any change is made, of any technical modification

he may intend to make in the supply of goods to which Hella has already given approval. The supply of any modified goods shall at all events require Hella's prior and express written consent, such as that given in connection with the approval of first samples. If goods are to be produced in accordance with Hella's data, the same shall apply to the modification itself.

 

9.2

The substance of the foregoing sub-clause 9.1 shall apply in all relevant respects to any change in the

source of supply of starter materials or components, any change to the production location, and any major changes to the Supplier's production process.

 

 

9.3

If the goods contracted for have been developed specifically for Hella, and in particular if Hella has

directly or indirectly contributed towards the cost of developing them and/or the cost of their means of production, the Supplier shall be under an obligation to supply Hella with the contract goods in line with requirements and to accept orders from Hella for so long as Hella needs the contract goods. The expected delivery volumes prepared on the basis of the available customer requirement forecasts shall be notified to the Supplier in good time. However, and without prejudice to the provisions of sub-clause 2.2 above, no right shall accrue to the Supplier for the off-take of any specific quantities unless specifically agreed otherwise

 

9.4

In order to ensure that Hella can continue to supply spare parts, the Supplier shall be prepared to

guarantee the supply of the necessary contract merchandise for a period of 15 years after the Hella products in which the relevant contract merchandise is installed have ceased to be in series production. If the Supplier discovers during this period of time that he will soon be unable to continue to supply, he shall warn Hella in good time that the supply facility is coming to an end and shall give Hella the opportunity, if no other reasonable possibility exists, of buying in the remainder of its ad infinitum requirement

 

 

 

 

10

 

 

10.1

Hella shall inform the Supplier without delay and in writing of any defects or deficiencies in the goods

supplied as soon as they can be discovered under the conditions of normal business operations. The Supplier thus hereby waives his right to reject late complaints

 

10.2

Agreements made between the parties relating to quality assurance activities, such as those made 

under quality assurance, ship-to-stock, or other separate agreements, shall be observed at all times.

 

 

 

 

11

 

 

11.1

The Supplier hereby guarantees that the contractual merchandise shall be free of defects and shall

comply with the agreed specifications and the latest state of the technical art

 

11.2

In the event of defective goods being delivered, Hella shall be entitled to require either a replacement 

consignment or the necessary rectification, as discussed and agreed with the supplier. If Hella incurs additional costs in meeting its own delivery dates as a result of the replacement consignment or the rectification, these shall be borne by the Supplier.

 

11.3

If the same goods are delivered a second time with defects, Hella shall be entitled to issue a written

warning and, if defective goods are delivered once again or if the rework is defective, to cancel all orders with immediate effect that have not yet been fulfilled.

 

11.4

Hella shall be entitled, after discussion and agreement with the Supplier, to sort out and return or to

scrap any defective contractual merchandise.

 

11.5

Should the Supplier fail to meet Hella's request promptly for a replacement consignment or for

rectification, or if he is unable to comply with the aforesaid request, Hella may cancel the order and return the goods to the Supplier at the Supplier's risk and expense.

 

11.6

In urgent cases, in which Hella will inform the Supplier in advance whenever possible, Hella can carry

out the rectification itself, or arrange for a third party to carry it out, if this is necessary in order for Hella to meet its own delivery dates, or alternatively to obtain faultless contract merchandise from third parties. The Supplier shall bear the costs thus incurred.

 

 

11.7

If, despite adherence to Clause 10 of these Terms and Conditions, defects only come to light after

contract merchandise has been further processed, the Supplier shall be under an obligation to bear all costs connected with the replacement or rework of the defective contractual merchandise, meaning in particular the costs of inspection, transport, conveying, labour, and materials. This shall also include the costs of any necessary replacement or the repair of products in which Hella has installed defective contractual merchandise, and the costs for handling and guarantee processing (material ancillary costs)

 

11.8

If as a result of a series defect it is necessary to replace a whole series of contract goods or Hella

products in which the contractual merchandise has been installed, for instance because a fault analysis is not possible or would not be reasonable, the Supplier shall reimburse Hella for the aforesaid costs including those relating to the part of the series affected in which no technical defect has been discovered.

 

11.9

If the parties have made any agreement relating to the handling and charging of warranty claims,

particularly any relating to complaints from Hella's customers, these shall take precedence over the provisions of these present Terms and Conditions.

 

11.10

Unless the parties have made any other specific agreement in writing, the warranty period shall come

to an end 48 months after the date on which the parts were delivered to Hella. Any claims based on complaints arising during the warranty period, including claims for compensation for consequent damage, shall become statute barred at the earliest 18 months after Hella became aware of the defect, unless legislation stipulates any longer period. The period for statute bar shall be interrupted by the complaint.

 

11.11

Unless agreed to the contrary anywhere in the foregoing, warranty liabilities shall in all other respects

comply with statutory regulations.

 

 

 

 

12

 

 

12.1

If Hella or any third party suffers injury, loss, or damage on account of the supply of defective parts, or

of the defective execution of work, or through the violation of any other contractual obligation, the Supplier shall pay compensation for the resultant loss within the parameters of statutory regulations.

 

12.2

The Supplier shall bear legal liability, if he is under a legal responsibility to do so, for any actions taken

by Hella or by any of Hella's customers to avert damage (e.g. a product re-call).

 

12.3

The Supplier shall be under an obligation to take out product-liability insurance to cover all the goods

and services he supplies up to an amount appropriate to the risks involved in the motor industry, namely DM 10,000,000 (in words: ten million Deutschmarks) for injury to persons or loss of or damage to property, including the costs of a product re-call, and to maintain it for a period of at least 15 years from the date on which the goods and/or services were supplied. The nature and scope of the insurance cover, including the name of the third-party liability insurance company, shall be substantiated to Hella in a suitable form on request.

 

 

 

 

13

 

 

13.1

The Supplier shall bear liability for ensuring that no third party's industrial property rights or copyright

are violated by the goods and/or services he supplies. The Supplier shall absolve and release Hella, and Hella's customers, from all claims raised on the grounds of the use of such industrial property rights.

 

13.2

This legal liability shall not apply if the Supplier has produced the contractual merchandise in

accordance with Hella's absolutely specific data.

 

13.3

If Hella has participated in the costs of development of the contractual merchandise, Hella shall be

granted, without prejudice to any broader rights based on any special agreement with the Supplier, a
non-exclusive usufructory right, unrestricted as to time and place and at no extra cost, for all purposes
including the right to grant sub-licences, over the inventions used in the contractual merchandise or the
copyright created in connection with it. If the services to be performed by the Supplier include the writing of
software, the Supplier shall make the source code available to Hella on request as well as the full software
documentation.

 

 

14

 

If the Supplier is to produce the contractual merchandise using tools, equipment, machines, or any other production facilities (hereinafter called production material) to which Hella has contributed some or all of the costs, Hella shall acquire ownership or alternatively co-ownership over them at the latest upon payment of the agreed costs or a share thereof, in the same proportion as the share of the costs that Hella has borne. Should the aforesaid production material remain with the Supplier, its surrender shall be replaced by the Supplier storing it free of charge on Hella's behalf with the care he customarily devotes to his own material. In all other respects, any agreements made separately between the parties in this context shall apply (e.g. "Hella Tool Contracts").

 

 

 

 

15

 

 

15.1

Should either of the contracting parties becomes insolvent, if bankruptcy proceedings are opened

against him, or if an application is made for judicial composition proceedings to be opened on his assets, the party shall be entitled to cancel the orders for any consignments not yet delivered at that point in time.

 

15.2

Hella shall store the data necessary for processing orders and checking invoices in electronic files.

 

15.3

If the written form is prescribed in any of these Terms and Conditions for communications or

declarations by the parties, this requirement will be deemed to have been fulfilled if the communication or declaration is transmitted by telefax.

 

15.4

Should any provision of these Terms and Conditions prove to be invalid, this shall not affect the

validity of the remaining provisions. The contracting parties shall then be under a mutual obligation to discuss and agree on a valid provision to replace the invalid one that comes a close as possible to it in its commercial effect.

 

15.5

The place of execution shall be the registered offices of Hella or alternatively the place of delivery

designated by Hella.

 

15.6

The laws of the Federal Republic of Germany shall apply exclusively, with the exception of the choice

of laws rules.

 

15.7

The place of jurisdiction for any dispute that may arise from these Terms and Conditions or deliveries

made within their ambit shall be the registered offices of Hella or any other competent court for legal actions brought by Hella.