GENERAL TERMS AND CONDITIONS OF PURCHASE ACTEGA SCHMID RHYNER AG

(Version: January 2023)

1. Field of application, Placing of Orders, Differing Conditions

1.1. These General Terms and Conditions of Purchase apply to the purchase of goods as well as to services and work services.
1.2. These General Terms and Conditions of Purchase apply exclusively to companies, i.e., natural, or legal per-sons who, when concluding a legal transaction, act in the exercise of their commercial or self-employed pro-fessional activity. These General Terms and Conditions of Purchase shall also apply to all future orders. This shall also apply if we do not expressly refer to the application of these General Terms and Conditions of Pur-chase for future orders to our suppliers and contractors (hereinafter referred to as "Supplier"). They also apply in addition to additionally agreed special conditions in individual cases. Deviating agreements as well as ancil-lary agreements must be made in writing. 
1.3. Only orders placed by us in writing or in text form are binding. This also applies to later additional agreements, supplements and/or amendments. The Supplier must confirm our order in writing within a reasonable period, in any case no later than two weeks after the order date. After this period, we are entitled to cancel our order.
1.4. Our General Terms and Conditions apply exclusively; other general terms and conditions, in particular the Supplier's terms of sale, do not apply, even if we do not expressly contradict them unless we expressly agree to its applicability. Our General Terms and Conditions of Purchase shall also apply, if we unconditionally accept the delivery/performance of the Supplier, knowing that the terms of sale conflict with or deviate from our Gen-eral Terms and Conditions of Purchase. Neither a failure of objection, nor the payment or acceptance of the goods constitute an acknowledgment of third-party terms and conditions.

2. Offer

2.1. The Supplier shall submit offers and cost estimates bindingly and free of charge, unless otherwise agreed in writing.
2.2. The Supplier prepares the offer according to the descriptions and objectives of our request. In the event of deviations, he is obliged to expressly point this out.
2.3. If the Supplier does not specify a different deadline in his offer, this is binding for 60 days.
2.4. The offer must include a binding delivery period.

3. Breach of Obligations

The statutory claims regarding breach of obligations shall apply unless provided otherwise or supplementary in the following:

3.1. Any changes to the product ordered by us must be reported to us immediately. This applies to the direct formu-lation as well as the production method and production locations.
3.2. Delays in Delivery
3.2.1. The delivery dates and place of performance mentioned in the order are binding. Unless explicitly agreed in writing, delivery periods shall commence on the date of order. In case of purchase contracts, compliance with the delivery dates and delivery periods shall be measured according to the receipt of the goods or, in case of service contracts, according to the rendering of the service and, in the case of contracts for work services, ac-cording to the achievement of the success of the work at our premises or at the agreed place of delivery or per-formance.
3.2.2. To allow us to make and facilitate necessary organizational preparations (e.g., creation of storage capacities), the Supplier is not entitled to deviate, without our prior written consent, from the delivery/performance dates or periods specified in the order. This also applies to early deliveries/performances or partial deliver-ies/performances. Decisive for compliance with the delivery/performance date or period is the proper handover of the goods to a transport person designated for the transport of the goods.
3.2.3. Supplier shall inform us without delay including notification of reasons if a (partial) delivery or service will or may be delayed or will or may not be fulfilled.
3.2.4. If Supplier fails to make the delivery or service in a timely manner, we are entitled to assert any statutory claims. In particular, we are entitled, upon expiry of a reasonable extension period, to demand compensation for non-performance and to withdraw – even only with regard to the part that has not been fulfilled – from the contract. If we demand compensation, the Supplier is entitled to prove that he did not culpably breach any du-ties. The previously mentioned extension period is not necessary if we agreed on a fixed delivery/performance date.    
3.3. Defective Deliveries/Performances
3.3.1. The Supplier warrants to provide its deliveries/services in accordance with the agreed specifications and to carry out a thorough function and quality check prior to delivery. The Supplier furthermore ensures that its de-liveries/services comply with the latest state of the art, all applicable laws and any regulations of authorities,  workers’ compensation boards and professional associations. The delivered goods shall be labelled in ac-cordance with any existing statutory provisions and EC/EU directives. Prior to delivery, the Supplier undertakes to send all necessary product information in the most up-to-date form, in particular on composition and durabil-ity, e.g., safety data sheets, processing instructions, labelling regulations, assembly instructions, occupational health and safety measures and specifications. In the case of delivery of machines and equipment, the Suppli-er additionally assures that these comply in particular with the requirements of the GPSG and the regulations based thereon and bear the CE mark. Changes to the target values, tests, and test methods in the certificate of analysis may not be made without our prior written consent.
3.3.2. The Supplier must ensure that reasonable test methods adapted to the product and the foreseeable or known application are used during his quality inspection and in the certificate of analysis.
3.3.3. In case of regular delivery, we can rely on the fact that the processability and properties of the delivered prod-ucts are constant. If the product does not correspond to the usual properties and processability, this is consid-ered a defect, even if this is not visible in the certificate of analysis.
3.3.4. If the Supplier provides services on our premises, he must inform the coordinator named by us of the start and scope of the work and coordinate its course with the coordinator. In this context, the coordinator shall be em-powered to give instructions.
3.3.5. We check the delivered products upon receipt only as needed. Otherwise, the inspection for quality and quanti-ty will only take place at a later date. If the products are defective, we may demand replacement delivery during the warranty period of two years from delivery or rectification of the defect by the Supplier. We can reject the entire delivery if random samples show defects. Section 201 CO is not applicable. We accept rejected goods only for the account and risk of the Supplier and store them in his name.
3.3.6. In the event of defective performance, the Supplier shall also be liable for damages incurred by us in the ordi-nary course of business prior to processing of the goods due to undetected defects in the delivered goods. In this case, the Supplier shall indemnify us against claims for damages by third parties upon first request.
3.3.7. The Supplier guarantees that its deliveries/services and their contractual use do not infringe any patent, copy-right, or other property rights of third parties.
3.4. Chemicals Act and REACH
3.4.1. The Supplier guarantees that his deliveries comply with the applicable statutory provisions, in particular the Federal Act of 15 December 2000 on Protection against Dangerous Substances and Preparations (Chemicals Act).    The Supplier shall ensure that all substances used that fall under the EU chemicals regulation REACH (EC 1907/2006) are registered or authorized by him or his only representative in accordance with this regulation and considering the contractual use of the substances. This also applies to Suppliers outside the EU. At our request, the Supplier shall provide suitable evidence of the fulfilment of this obligation. Safety data sheets must be kept up-to-date and electronically available, or automatically delivered upon the first delivery of a product. If we ask exclusively and in writing for non-REACH-registered goods, the supplier can also supply us with non-REACH-registered goods.
3.4.2. In the event that the Supplier breaches one of the aforementioned obligations, we are entitled at any time to cancel the corresponding order in due course and to refuse acceptance of the corresponding delivery without incurring any costs.
3.5. The Supplier must have a business liability insurance with reasonable coverage. We may require a respective confirmation of insurance.    

4. Damages and Indemnification for Third-Party Claims

4.1. Unless otherwise agreed, the Supplier’s liability shall be governed by the statutory provisions.
4.2. To the extent that the Supplier is responsible for a product damage, he shall be obliged to fully indemnify us against claims for damages by third parties (including reasonable legal prosecution and defense costs, ex-penses, fees, taxes, etc. as well as reasonable advance payments) upon first request if the cause (in relation to us) is within his sphere of control and organization.
4.3. If third-party claims are lodged against us due to alleged infringement of intellectual property rights in respect of the deliveries/services furnished or due to alleged infringement of a reservation of title or other tangible enti-tlements to the goods(s) delivered or service(s) provided, the Supplier undertakes to hold us harmless from all these third-party claims in this respect (including reasonable legal proceedings and defense costs, expenses, fees, taxes, and reasonable advance payments etc.) at first request.

5. Limitation Periods

In the case of warranty due to defects in the goods, the limitation period shall be 36 months calculated from the transfer of risk. The limitation period shall be extended to 10 years if the Supplier has fraudulently concealed a defect. For all other claims, the legally applicable limitation periods apply.

6. Transport/Packaging/Origin of Goods

6.1. Unless expressly agreed otherwise, the Supplier shall deliver the goods to the DDP destination (Incoterms in the most current version) whereby the Supplier is additionally obliged to take out transport insurance for the goods, which entitles us to assert claims directly with the insurer and to send us the insurance policy or other proof of insurance cover. The Supplier shall also bear the unloading costs.
6.2. The Supplier is obliged to inform us in writing or in text form about the percentage of goods or services of US origin. We are also entitled to demand from the Supplier free of charge a presentation of certificates of origin and quality regarding the goods to be delivered.    
6.3. Delivery items must be packed properly and in an environmentally friendly manner, delivered in suitable and approved bins/containers and means of transport, and our respective delivery instructions must be observed. As far as relevant for the goods, the provisions of the Chemicals Act must be observed.

7. Assignment and Set-Off

7.1. The rights and obligations arising from the contract may not be transferred by either party without the consent of the other. This does not apply to the assignment of monetary claims. However, we are free to assign claims to a company affiliated with us. The Supplier will be informed of this by us. In this case, the Supplier is granted the right to withdraw from the contract.
7.2. Setting off counterclaims or the assertion of a right of retention by the Supplier shall only be permissible if the Supplier’s claims are undisputed and due or have become final and legally binding.

8. Retention of Title

Since the ordered goods usually pass into our products as a result of treatment or processing and any retention of title thereby expires, all goods delivered to us must be free of such reservations and third-party rights (such as pledges, other creditors' rights based on the assignment of claims, the ownership-transfer of goods for secu-rity, or other forms of security for loans, the sale of claims, lease-purchases, conditional sales etc.). Therefore, we explicitly do not accept any Supplier’s retention of title. The parties agree that a retention of title unilaterally declared by the Supplier but not entered in the corresponding register is not to be understood as a reservation of withdrawal within the meaning of Section 214 para. 3 CO.

9. Documents, Confidentiality and Data Protection

9.1. The delivery must be accompanied by a delivery note stating the date (issue and dispatch), the content of the delivery (article number and volume), the legally prescribed information for preferential goods, the information on the customs origin of the goods and of our order identification. In addition, each delivery must be accompa-nied by a certificate of analysis. If the delivery note or the certificate of analysis is missing or one of the docu-ments is incomplete, we are not responsible for the resulting delays in processing and payment. The certificate of analysis can be sent electronically to PFQuali.ACTEGA.SchmidRhyner@altana.com in advance.
9.2. Models, tools, templates, drawings, documents etc. that we provide for the execution of an order remain our property and are to be treated confidential. They may not be made available to third parties for inspection or disposal, used to produce goods for third parties, or reproduced without our prior approval. They shall be re-turned to us in due course after completion of the order.
9.3. The provisions in Section 9.2 applies accordingly to any other confidential information.
9.4. The confidentiality obligations pursuant to sections 9.2 and 9.3 shall be passed on in a reasonable manner to all legal representatives, employees and other third parties who the Supplier uses to fulfill his obligations aris-ing from our order.
9.5. The Supplier undertakes to comply with data protection requirements in accordance with the applicable statuto-ry provisions, in particular the Swiss Data Protection Act and, if applicable, the EU General Data Protection Regulation (GDPR) or the Federal Data Protection Act (BDSG). He has to design his organization in such a way that it fully meets the requirements of data protection.
9.6. As far as we are processing personal data of the Supplier, the processing shall be governed by the provisions of our data protection declaration, available at https://www.actega.com/de/en/asr_transparency.

10. Payment

10.1. Prices shall be fixed prices excluding value added tax. Unless otherwise expressly agreed in writing, offers, cost estimates and other price calculations made by the Supplier shall not be reimbursed by us. 
10.2. Each order requires a separate invoice in duplicate, stating our order number. Payment shall only be made to the Supplier specified in the order.
10.3. Payments made by us shall not be deemed as acceptance of the conditions, goods and services shown in the invoice. We expressly reserve the right to assert our rights due to services/deliveries not or not properly per-formed as well as the complaint of the invoice for other reasons. 
10.4. The payment period is 60 days after receipt of invoice. If payment is made within 14 days, the Supplier grants a 3% discount. In the event of our non-payment after expiry of the payment period, we shall only be in default by means of a reminder. We shall only be liable for default interest if we have not triggered the payment even af-ter expiry of 15 days after receipt of the reminder. If the last day of the aforementioned deadline is a Saturday, Sunday or public holiday (Confederation, Canton of Zurich, Municipality of Adliswil), the respective deadline is extended until the end of the first following working day.

11. Withdrawal from the Contract/Termination

We are entitled to terminate the contract for important reasons by withdrawal or termination. An important rea-son shall particularly exist, if (i) the relationship of trust has been significantly disturbed due to circumstances occurring after the conclusion of the contract, (ii) the financial situation of the Supplier has deteriorated signifi-cantly so that the performance of the contract is endangered or (iii) other circumstances have occurred which make it unacceptable for us to continue the contract with the Supplier. A significant deterioration in the financial situation of the Supplier, so that the fulfilment of the contract is endangered, shall be deemed to have occurred in particular, if the Supplier's credit ranking with recognized rating agencies such as Creditreform, Moodys, Fitch etc. has deteriorated so significantly that we can justifiably assume, taking into account the interests of the Supplier, that the Supplier will not fulfil its contractual obligations or will not fulfil them on time. Such a deterio-ration shall be deemed to exist in particular if the Supplier's solvency index at Creditreform falls below 499 or the rating at international agencies (Moodys, Fitch etc.) falls to CCC (or its equivalent) or worse. Any records, documents and plans prepared by the Supplier up to the time of termination or withdrawal must delivered to us in due course.

12. Force Majeure

12.1. We are entitled to withdraw from the contract in whole or in part, if any force majeure events, labor disputes, breakdowns through no fault of our own, civil commotions, measures of authorities or any other comparable inevitable events through no fault of our own occurred.
12.2. The Supplier must notify a case of force majeure immediately and provide sufficient evidence in writing. In case of doubt, we may have this proof checked by an independent third party. If the latter does not confirm the case of force majeure, the obligations of the Supplier shall apply retroactively and the costs of the inspection shall be borne by the Supplier. If the third party confirms the case of force majeure, we shall bear the costs of the inspection.

13. Further Obligations of the Supplier

13.1. The Supplier is obliged to manufacture any goods under the contract in compliance with any applicable laws and regulations on health and safety and on protection of employees and the environment. Subject to other ob-ligations, Supplier will apply the guidelines of ALTANA’s Code of Conduct, which can be found on the following website: https://www.altana.com/company/corporate-guidelines-/-compliance-altana-ag.html and which we submit to the Supplier upon request free of charge. 
13.2. The Supplier shall comply with our applicable safety regulations when entering our factory premises while fulfilling the contract.
13.3. The Supplier is aware that the export of certain goods by us - e.g. due to their type or their intended use or final destination - may be subject to approval. The Supplier must therefore meet all requirements of the national and international customs and foreign trade laws applicable to us, including embargo regulations and export con-trols. The Supplier must provide us with all information and data, which we need to comply with the applicable foreign trade laws for export and import as well as in the case of resale for re-export, in writing at the earliest possible date before the planned delivery.
13.4. The Supplier may only refer to an existing business relationship with us with our prior written consent unless the reference is necessary to fulfill the contract. 
13.5. The Supplier shall undertake to implement effective quality assurance measures and to use a quality assur-ance system in accordance with ISO 9000 ff. or equivalent. We have the right to inspect these measures at the Supplier’s site. 
13.6. The Supplier is obliged to keep spare parts for the goods delivered to us for a period of at least 15 years after delivery.

14. Minimum Wage Confirmation (Guaranteed Minimum Wage)

14.1. The Supplier declares and undertakes to employ its own employees – in particular if they are called upon to fulfil the contractual obligation towards us – in accordance with the applicable statutory provisions on minimum wages and, in particular, to pay them the stipulated minimum wage.
14.2. Upon our request, the Supplier will immediately provide us with the relevant documents (in particular time sheets and payrolls) to prove that he has complied with the applicable statutory provisions on minimum wages, in particular paying the provided minimum wage.
14.3. Should the Supplier make use of another contractor, service provider or subcontractor for the fulfilment of his contractual obligations towards us, he undertakes to also subject these to a comprehensive obligation to pro-vide evidence of compliance with the statutory provisions on minimum wages or regulations of the Minimum Wage Act.
14.4. In the event that the Supplier does not or not fully comply with the above obligations or in the event of false statements regarding compliance with the statutory provisions on minimum wages or regulations of the Mini-mum Wage Act, we shall be entitled to terminate the contractual relationship with the Supplier without notice. Such right of termination shall also exist, if a contractor, service provider or other subcontractor commissioned by the Supplier, whose employees are defined to fulfil the contractual obligations of the Supplier towards us, does not comply with the regulations of the Minimum Wages Act.

15. Acceptance

15.1. All acceptances of work contracts within the meaning of articles §§ 363 ff. OR as well as of other services shall be made in writing and using our acceptance report. 
15.2. The acceptance does not take place through implied actions such as the use of the work; the acceptance must always be declared expressly. Other notional acceptances are excluded as well.
15.3. Also for contracts for work and materials, a formal acceptance according to the above Section 15.1 must take place as a prerequisite for payment.

16. Applicable Law

This contract is subject to Swiss law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).    

17. Place of Jurisdiction

Place of jurisdiction shall be, at our discretion, either the court which is responsible for our registered office or the court at the Supplier's registered office which is responsible according to the relevant statutory provisions.

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