FRAMEWORK TOOLING LOAN AGREEMENT

Transcription

1 FRAMEWORK TOOLING LOAN AGREEMENT Company: >>hier Firma auswählen!!<< >>hier Anschrift auswählen!!<< >>hier Ort auswählen!!<< Hereinafter HANDTMANN Company: hereinafter BORROWER enter into the following agreement: 1 Subject matter HANDTMANN lends to the BORROWER the means of production, also synonymously called toolings. The means of production are either provided by HANDTMANN, or the BORROWER manufactures them itself as per HANDTMANN S orders. The BORROWER may use the means of production only for the production of the parts and products ordered by HANDTMANN. The BORROWER shall not be allowed to lend the means of production to a third party except after receiving a written consent from HANDTMANN. The means of production may not be duplicated, sold, assigned as security, pledged, or conveyed in any other form or used for any third party without the explicit approval of HANDTMANN. On HANDTMANN S request or, alternatively, at least once a year, the BORROWER shall be obliged to take stock of the means of production, and to confirm to HANDTMANN that it is in possession of the means of production. 2 Ownership and marking of ownership 1. For the manufacturing of the means of production by the BORROWER, it is agreed: In a separate tooling order, the means of production shall be described and defined by type, quantity, price, for which component they are intended, their function etc. This framework contract is a co-applicable contractual basis for each tooling order. This shall be deemed agreed upon even if this framework contract is not explicitly quoted in the purchase order as being co-applicable. In the case of inconsistencies, the order of priority shall be: Tooling Purchase Order, then Framework Tooling Loan Agreement, then Handtmann Conditions of Purchase. 2. Any knowhow or proprietary rights used by the BORROWER in the manufacture of the means of production shall, with regards to their use, be deemed fully paid with the purchase price; and HANDTMANN shall therefore not be in any way restricted with regards to all types of usage of the means of production so manufactured. In particular, HANDTMANN shall not be obliged, without any separate agreement, to take delivery of a specific minimum quantity of the parts and products produced with or on the means of production. 3. HANDTMANN and the BORROWER agree that ownership shall pass on the conclusion of this loan agreement by mutual signing and full receipt of payment of the agreed purchase price of the means of production. The BORROWER holds the means of production in his possession as a loan, HANDTMANN is the indirect possessor and owner. Framework Tooling Loan Agreement Page 1 of 5

2 4. The BORROWER assures that it has sole and unrestricted ownership of the means of production or that, if there exist any reservations of title by pre-suppliers, it is entitled to transfer ownership to HANDTMANN, and that there is no other encumbrance regarding third party rights. 5. The BORROWER is obliged to ensure identification of the ownership of the means of production. For this, the BORROWER must permanently apply the inventory number given to it by HANDTMANN or a customer ownership note on the subject matter itself (engraving by BORROWER or bolted-on/stuck-on inventory label). If HANDTMANN fails to provide this inventory number/customer ownership note in due time before the last payment installment falls due, the BORROWER must request it on his own initiative. 6. In addition, the BORROWER shall be obliged to take photos of the means of production once they are manufactured (on paper, preferably format DIN A4 or electronically) and to send them to the HANDTMANN, EL-SYS Department, Purchasing and Logistics. In the case of production facilities, the clamping and contact points must be marked on these photos by hand. In the case of casting molds, the open and closed conditions must be photographed. For an easier allocation, the part number and the HANDTMANN inventory number/customer ownership note on the means of production must be indicated on the photos by hand, including the date when the photo was taken. 7. If, either according to the tooling quotation, tooling purchase order or order acknowledgment, it is a characteristic of the subject matter to form, hold, clamp etc. castings or auxiliary components that are identified with a drawing number and are intended for production, machining, assembly, testing etc. or if casting molds of any type are a means of production, the comprehensible fact of a fitting or same-contour casting or auxiliary part such as a sand core of the said drawing number shall also be deemed proof of ownership identification that is already at the time of the passing of ownership available in an adequately determinable manner and is hereby contractually stipulated. 8. If, for any reason whatsoever, no inventory number or customer ownership note is applied, or if an inventory label is lost or the subject matter is identified in documents in an ambiguous way, it is agreed that any other documents such as work instructions, tooling inventory documents, tooling numbers of the BORROWER or any other production parts etc. may, if required, be consulted for identification purposes, independent of their date of issue and author. The BORROWER must then make sure to subsequently properly identify ownership, i.e. by applying an inventory number label/customer ownership note. 9. Even if, due to the nature of the means of production, e. g. machining tools such as drills, milling cutter, thread cutters, countersinks, PCD blade carriers etc, tool holders, part holders, prevent the application of an inventory label / customer ownership label, the BORROWER shall apply some other kind of identification of ownership on each individual tool (e.g. engraving, embossed numbers, embossed letters et.). It will not suffice to mark the container in which such means of production are stored with an ownership label identifying HANDTMANN or the customer. Such a labeling of containers can always only be an addition, but does not have the required legal effect with regards to the identification of ownership. 3 Handover If the BORROWER does not manufacture the means of production, and instead a factual handover by HANDTMANN takes place by means of shipping through a forwarder, personal delivery, collection through the BORROWER, and the like, of already existing means of production, the following is agreed: HANDTMANN will hand the means of production over to the BORROWER in a ready-for-production condition; the cost of transport shall be borne by HANDTMANN, if not otherwise agreed. Sole ownership of the means of production remains with HANDTMANN or our customer. The loan agreement shall become effective upon being signed by both parties to the agreement. Framework Tooling Loan Agreement Page 2 of 5

3 The BORROWER shall be obliged to check for the existence of the HANDTMANN or customer owner identification in the form of an inventory or notice label, and, if such label is missing, to obtain the necessary information from HANDTMANN and mark the means of production. The above explanations of this matter shall apply accordingly. 4 Maintenance/Damage/Modifications 1a. The BORROWER shall keep the means of production in a useable condition, at its own expense, in particular 1b. treat and store the means of production adequately and appropriately and to ensure their being inspected and serviced, 1c. carry out the required repair work immediately, in a adequate and appropriate manner, after the agreed or usual output quantity, at the BORROWER s expense, if such means of production were produced by the BORROWER or, 1d. if the means of production had been handed over by HANDTMANN in a ready-to-operate condition, the BORROWER will immediately inform HANDTMANN of any necessary repair work which will exceed inspection and maintenance, and obtain a decision from HANDTMANN with regards to their repair. HANDTMANN must immediately be informed in writing of any damage to the means of production. 2. The BORROWER shall not modify or supplement in any way the means of production without the consent or request from HANDTMANN, or without clarifying who shall bear the cost thereof. The same applies to any work carried out on the means of production which is meant to adapt them to existing plants/machines of the BORROWER. If any impact on the output quantity or service life of the means of production is to be expected from modifications/supplements or is caused by them, HANDTMANN shall immediately be informed in writing of the modification costs, before such modifications are carried out, if possible as early as in the quotation. Any modifications/additions shall, independent of their payment, pass into the ownership of HANDTMANN. With regards to any modifications/additions not yet paid under this contract, the BORROWER shall have a commercial right of retention according to HGB (German Commercial Code). 5 Replacement 1. HANDTMANN shall bear the cost of replacing the means of production (e. g. bear the cost of follow-up casting molds) if they have become unusable due to normal wear and tear, upon having reached the agreed output - or, failing an agreed output quantity - the usual output quantity. This may take the form of payment of the costs or payment of an agreed amortization share on the supplied parts. In any case, cutting tools are included in the machining price. 2. The BORROWER shall inform HANDTMANN in due time, that is, taking into consideration the usual time of delivery, at what time the borrowed means of production will need to be replaced due to normal wear and tear. 3. The BORROWER bears the cost of replacement or repair of the means of production if it is responsible for the means of production being lost or becoming unserviceable or in need of repair. Such an obligation to bear the costs of replacement will, however, only apply at the ratio of the quantity of subject matter no longer producable owing to loss or unserviceability to the agreed/or - if not agreed -usual output quantity. If no follow-up tooling is necessary to replace the lost or unserviceable subject matter, the cost to be paid shall be agreed separately in each individual case. 4. The BORROWER shall provide insurance for the subject matter at the repurchase value, covering at least the risk of fire and water damage, under the usual conditions, and to keep up the insurance throughout the period of the loan. Framework Tooling Loan Agreement Page 3 of 5

4 6 Protection of property 1. The BORROWER shall undertake all steps to defend against any intervention from third parties into the ownership of HANDTMANN, the BURROWER shall inform HANDTMANN immediately if a third party intends to claim any one of the means of production. 2. HANDTMANN or the persons commissioned by HANDTMANN shall, at any time during normal business hours, be entitled to verify the proper, adequate and appropriate storage and marking of the means of production by the BORROWER and to satisfy themselves of the proper condition of the means of production. 7 Safety/Accident prevention 1. The BORROWER shall be responsible for the safe erection and operation as well as for keeping the means of production in a safe condition. The BORROWER must ensure that the relevant accident-prevention regulations of the relevant employer s liability insurance are observed. If the BORROWER is unable to remedy any safety deficiencies or unable to adapt the means of production in such a way that they meet the accident-prevention regulations, the BORROWER must inform Handtmann of this in writing. HANDTMANN shall not be held liable for any damage resulting from safety deficiencies of the means of production. The BORROWER shall exempt HANDTMANN from any third party claims for damages. 2. The documents handed over to the BORROWER by HANDTMANN (such as operating instructions, safety proceedings, tool drawing and similar) shall also be returned to HANDTMANN after the termination of this loan agreement. 8 Ownership by end customer HANDTMANN is often obliged to transfer the acquired ownership of the means of production immediately to the end customer (e.g. automobile manufacturer) or to grant them a prospective entitlement. In the case of such circumstances, the BORROWER acknowledges that HANDTMANN may transfer ownership of the tooling/prospective entitlement to the end customer, depending on what circumstances demand. To facilitate handling of the tooling loan relationship, the BORROWER accepts without demanding any further evidence, that HANDTMANN is authorized by the end customer, to continue to effectively make agreements in its own name with the BORROWER on all matters involving the tooling. This HANDTMANN Framework Tooling Loan Agreement shall, with regard to the tooling concerned, be interpreted as a sub-loan agreement authorized by the customer in its own name. 9 Confidentiality The BORROWER shall keep any and all data of the subject matter confidential and may not give access or insight to such data to any third party. If so agreed with the BORROWER, the separate HANDTMANN confidentiality agreement shall apply. 10 Termination of contract 1. After the purchase order or the phase-out of the series has been completed, the BORROWER undertakes to store for HANDTMANN for a period of not less than 15 years the means of production including accessories and documentation, free of charge. They shall be stored in such a way that they could be reinstated at short notice. Upon the expiry of this period the 15 years storage requirement shall expire for the BORROWER upon its request to HANDTMANN and HANDTMANN s written consent. The BORROWER and HANDTMANN shall come to a mutually beneficial agreement on the further disposition of the means of production. Framework Tooling Loan Agreement Page 4 of 5

5 2. HANDTMANN is entitled to terminate this contract with immediate effect if the BORROWER cannot ensure the supplies requested by HANDTMANN in terms of Quality / quantity / deadlines or if the BORROWER s financial situation deteriorates materially or if court bankruptcy proceedings are initiated or opened against its assets. 3. In regards to the surrendering of the subject matter owned by HANDTMANN, the BURROWER undertakes to waive the right of retention at any time, regardless of the reason, even before the termination of this contract. The right of retention on grounds of outstanding payments for modifications/additions shall be exempt. If ownership has not yet passed to HANDTMANN owing to the payment not being complete, surrender must be effected step by step against payment of the outstanding remaining purchase price. 4. If not agreed otherwise, the cost of transport for the return of the means of production shall be borne by HANDTMANN. 11 Modifications/Amendments Any amendments and modifications to this contract shall be valid only if made in writing, and may be agreed only between the BORROWER and the responsible HANDTMANN purchasing department EL-SYS Purchasing and Logistics. 12 Salvatory clause Should any of the conditions or a part of the conditions of this contract be or become ineffective, this shall not affect the validity of the remaining conditions of this contract. 13 Place of jurisdiction The place of jurisdiction shall, at HANDTMANN s discretion, be the registered seat of the BORROWER, the registered seat of HANDTMANN or the place of performance to which the produced parts or products have to be delivered according to the purchase order. German law shall be applicable to all contractual and extra-contractual claims that are mutually asserted. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. >>hier Ort auswählen!!<<, , >>hier Firma auswählen!!<< >>hier Anschrift auswählen!!<< >>hier Ort auswählen!!<< Framework Tooling Loan Agreement Page 5 of 5