Terms & Conditions of Purchase
(Version of June 2015)
Unless otherwise agreed in writing, these General Terms and Conditions of Purchase shall apply exclusively to this and all future purchase orders/contracts with the contractor (the "Contractor"). We shall not be bound by conflicting or additional terms and conditions of the Contractor, even if we have not expressly rejected them or have accepted delivery unconditionally.
2. Purchase Order/Contract; Offer
2.1 Any oral side agreements relating to the purchase order/contract must be made in writing.
2.2 In the event of good cause (eines wichtigen Grundes) affecting any continuing obligation (DauerschuldverhÃ¤ltnis) under the contract or if insolvency proceedings have been commenced in relation to the Contractor’s assets, and the Contractor has not yet performed or not yet fully performed the contract, we shall be entitled to rescind the contract or, in the case of contracts with continuing obligations, terminate the contract without notice.
2.3 Quotes from the Contractor shall be free of charge; cost estimates will be paid only in accordance with a written agreement.
2.4 Requests, offers and similar for energy services, products and facilities that can have a significant impact on energy use, or have, unasked also meaningful information to be made available environmental and energy-related aspects. We will prefer the acquisition of as environmentally-friendly and energy-efficient services, products and facilities while ensuring the necessary technological and financial requirements.
In all correspondence, the Contractor shall indicate the purchase order number, the date of the purchase order/contract and the material name and/or material number specified by us.
4. Quality Management
The Contractor shall maintain a quality management system, for example pursuant to DIN ISO 9001 and/or DIN ISO 14001. We are entitled to review the Contractor’s system by way of audits subject to coordination of the same with the Contractor. We point out to all manufacturers and suppliers that the evaluation of goods and services is also based on their energy-related performance (in particular efficiency factor and energy efficiency class). The use of renewable resources is to be preferred if possible.
5.1 We expect the Contractor to observe the internationally recognized minimum standards of the UN Global Compact and the international Labour standards of the International Labour Organization (ILO).
5.2 The Contractor shall also comply with all anti-corruption laws applicable to the contractual relationship between the Contractor and us. Without prejudice to any other rights or remedies available to us, any breach of the first sentence of this Section 5.2 in connection with this contract is deemed to be a breach of contract which shall entitle us to terminate the contract for cause.
The appointment of subcontractors requires our prior written consent. The Contractor shall subject the subcontractors to the same obligations as those owed to us hereunder and furthermore shall ensure compliance with such obligations by its subcontractors.
7.1 The Contractor shall take note of the shipping address specified in the purchase order/contract. The transportation/shipping shall comply with the tariff, transportation and packaging regulations in respect of the applicable mode of transport, for example, railway, road transportation, shipping, air transportation, etc.
7.2 In addition to the shipping address, the purchase order information (namely, the purchase order number, purchase order date, place of delivery, the name of the recipient (if applicable) and the material name and/or material number specified by us) shall always be included in the transportation documentation.
7.3 If subcontractors are appointed, they shall identify in all correspondence and freight documents the Contractor as their customer as well as the abovementioned purchase order information. Load units from 1 ton onwards shall be labelled with the unit load weight in a clearly visible and indelible manner.
7.4 The Contractor is entitled to provide partial delivery/performance only with our express approval.
8. Information on Hazardous Materials; Product Information
8.1 The goods to be delivered shall be labelled in accordance with the provisions of the Hazardous Materials Ordinance and the EC/EU Directives for Hazardous Materials/Preparations.
8.2 The Contractor shall, prior to delivery and in a timely manner, provide us with all necessary product information especially those with respect to product composition and shelf life/service life, for example, safety data sheets, processing advice, labelling regulations, assembly instructions, workers’ protection measures, etc., including any amendments of the foregoing.
8.3 The Contractor shall ensure that the goods to be delivered shall not contain any gold, tin, tantalum, tungsten or combinations of the abovementioned materials originating from the Democratic Republic of Congo or its neighbouring states. The Contractor shall, upon our request, provide us with information on the origin of the abovementioned materials and/or combinations of the same.
9.1 The date of delivery/performance specified by us in the purchase order/contract is binding. The Contractor shall inform us without undue delay and in writing in the event it appears that it may not be able to perform its obligations within the agreed time period. In the event of delay, we shall be entitled to our statutory rights.
9.2 The Contractor may claim in its defence that documents or information required from us have not been provided only if it has not received such documents or information within a reasonable period despite having sent us a reminder.
9.3 We may claim any agreed and forfeited contractual penalty at any time up to the time the final payment is due without having to expressly reserve this right pursuant to Section 341, Paragraph 3 of the German Civil Code (BGB).
10. Performance Certificates and Acceptance
Any performance certificates to be provided for under the contract as well as the acceptance of the goods or services shall be free of charge and recorded by both parties in writing.
11. Weight / Volume
Without prejudice to any claim that we may have, in the event of any discrepancy in the weight of the goods, the weight established by us upon the inspection of incoming goods shall prevail unless the Contractor proves that the weight determined by him at the time of passing of the risk in the goods was measured correctly in accordance with a generally accepted method of determination. This clause applies as well to the determination of the volume of the goods.
12. Invoices and Payment
12.1 Invoices shall comply with the applicable statutory requirements. The invoice shall include the purchase order number. Statutory sales tax shall be shown separately on the invoice. Invoices shall be sent separately to the invoice address stated on the purchase order/contract.
12.2 The payment period shall commence upon the later of (i) delivery of the goods at their destination (as set out in the shipping address) or the acceptance of the work or service; and (ii) receipt of invoice at the invoice address stated in the purchase order/contract. Payment shall not constitute acceptance of goods or services.
13. Notification of Defects
We will perform an inspection of the incoming goods only for the purpose of identifying obvious external (transportation) damage and obvious external deviations in terms of identity and quantity. We will send notification of such defects without undue delay after delivery has been made. In all other cases, we will send notification of defects as soon as these have been identified during our normal course of business.
14. Claims for Defects, Liability of Contractor, Statute of Limitations
14.1 The Contractor warrants (gewÃ¤hrleistet) that the goods delivered and the services provided comply with the individually guaranteed characteristics and the contractually agreed quality, are suitable for the contractually required use, that its value or fitness for the contractually required purpose is not adversely affected, that it is state of the art as well as that it complies with the current statutory and regulatory rules and regulations.
14.2 If the delivery of the goods/performance of the service does not comply with Section 14.1 or is defective in any other way, we may at our option demand, in addition to any of our statutory rights, the prompt and free of charge replacement of defective goods or rectification of the defects. In such case, the Contractor shall also compensate us for all costs and expenses incurred directly or indirectly by us in connection with the replacement or rectification. In urgent cases, or if the Contractor is in default of his replacement/rectification obligations, we are entitled to promptly remedy the de2 of 2 fect ourselves or through a third party at the Contractor’s expense. If the Contractor has given a guarantee for the quality or durability of the delivery/ service, notwithstanding the above, we may also assert our rights under the guarantee.
14.3 The Contractor shall be liable for legal defects (RechtsmÃ¤ngel) in accordance with statutory regulations; in particular, it shall ensure that the delivery of the goods/performance of the services or its contractually agreed use does not infringe third-party patents or other intellectual property rights in the agreed country of delivery/performance. If a claim is asserted against us as a result of such infringement, the Contractor shall, at our first written request, release us and hold us harmless from all claims (including all legal costs) that we incur as a result of or in connection with such third-party claims. We may not enter into any agreement with the third party which adversely affects the Contractor without the Contractor’s consent.
14.4 In all other respects, the Contractor’s liability shall be determined by the statutory provisions. Upon our first request, the Contractor shall release us and hold us harmless from third-party claims for compensation if the defect causing the liability claim is caused by and is the responsibility of the Contractor or its suppliers.
14.5 Notwithstanding any Contractor’s intellectual property rights, we or third parties commissioned by us shall have the right to service and repair the> delivered goods.
14.6 The statutory and/or contractually agreed claims and rights relating to defects and defects in title will become statute-barred in accordance with statutory regulations.
14.7 Apart from the suspension of limitation period provided for by law, the limitation period for claims and rights relating to defects shall also be suspended during the period of time from the notification of a defect until the said defect has been remedied. The period of limitation will begin anew for deliveries of goods or performances of services that are redelivered/re-performed in full or in part and for deliveries and performances that have been replaced or rectified.
15.1 The Contractor shall maintain liability insurance on terms customary to the industry but in any event with a minimum coverage of €2 million per occurrence for the duration of the contract, including the guarantee and warranty period. The Contractor shall provide documentation of its insurance coverage upon request; lower levels of coverage may be agreed with us on a case by case basis.
15.2 We shall maintain transportation insurance for all shipments directly delivered to us (for examples, deliveries under sales contracts, contracts for work and materials (Werkverträge), maintenance contracts and customised products, but excluding the delivery of materials for use by the Contractor on our site). We waive insurance coverage for damages pursuant to ADSp Art. 29.1. Any premiums for such indemnity insurance or other selfinsurance will be borne by the Contractor.
All information, including drawings and other materials which we require for assembling, operating, servicing, or repairing the goods or services delivered to us, shall be provided to us by the Contractor in a timely manner, without us having to request for it and without charge. Our rights under Section 434, Paragraph 2, German Civil Code (BGB) remain unaffected.
17. Entering the Plant/Site
When entering our plant site/construction site, the instructions of our personnel shall be complied with. Further, the Contractor shall familiarize itself and comply with the respective site regulations (for example, safety regulations).
Regardless of the legal basis, we, our legal representatives, and our employees will be liable only for gross negligence, intent, or breach of a fundamental obligation essential for the fulfilment of the purpose of the contract (Kardinalpflichten). In the event of slightly negligent breaches of such fundamental obligations, our liability shall be limited to compensation for foreseeable damage that is typical for such a contract. This will not apply if we are mandatorily liable for injury to life, limb, damage to personal property pursuant to the German Product Liability Act or for other reasons.
19. Waste Disposal
To the extent that the Contractor’s delivery of goods/performance of services generates waste as defined under applicable waste management laws, it shall recycle or remove such waste, subject to any written agreement to the contrary, at its own expense and in accordance with such waste management laws. Title to, risk in, and the responsibility for the waste under the waste management laws shall pass to the Contractor upon the generation of waste.
20. Confidentiality and Data Protection
The Contractor undertakes to keep confidential any information, knowledge and materials, for example, technical and other data, personal data, measured values, techniques, business experience, business secrets, know-how, drawings and other documentation (hereinafter known as “INFORMATION”) received from us or disclosed in any other way by us or another company of our group, not to disclose such INFORMATION to third parties and use it for the purpose of executing the respective purchase order/contract only. The Contractor undertakes to return all INFORMATION delivered to him in a tangible form such as documents, samples, specimens, or the like without undue delay upon our request and without retaining any copies or notes. Further, it shall delete its own notes, compilations and evaluations containing INFORMATION without undue delay upon our request and shall confirm this to us in writing. We retain ownership and copyright to all INFORMATION. The Contractor shall comply with all applicable data protection laws and regulations. The Contractor shall inform its employees of the applicable data protection laws and policies and impose confidentiality obligations on them. At our request, the Contractor shall provide us with the relevant statements of compliance.
21. Planning documents
Any drawings or drafts etc. prepared by the Contractor pursuant to our requests shall become our property without us being additionally charged for it, regardless of whether they remain in the possession of the Contractor. Any statements made by the Contractor to the contrary or otherwise not in compliance with the aforesaid, for example, printed on the documents handed over to us, shall not be binding.
22. Advertising Materials
The Contractor may refer to the business relationship existing between us in his informational and advertising materials only with our express prior written consent.
23. Prohibition of Assignment
Assignments by the Contractor, except under Sec. 354 a of the German Commercial Code, are prohibited; any exceptions will become effective only upon our prior written consent.
24. Trade Terms
Insofar as any trade terms have been agreed pursuant to the International Commercial Terms (INCOTERMS), they shall be interpreted and apply in accordance with INCOTERMS 2010.
25. Place of Jurisdiction and Applicable Law
25.1 If the Contractor is a merchant, the exclusive place of jurisdiction shall be the location of our registered office. We are entitled, however, to commence proceedings before any court having jurisdiction over the Contractor’s registered office.
25.2 The contract and the legal relationship between the Contractor and us shall be governed by the substantive laws of the Federal Republic of Germany with the exclusion of its conflict of laws principles. The United Nations Convention on Contracts and the International Sale of Goods (CISG) of April 11, 1980 shall not apply.
IMPORTANT: These "General Conditions of Purchase" have been translated from the German version of these conditions (Allgemeine
Einkaufsbedingungen). This translation is only provided for information purposes. In the event of any conflict or uncertainty in the interpretation of these General Conditions of Purchase Order, the German version shall prevail.
Conditions of Sale & Delivery
1. Scope of Application: Our delivery of goods and services are subject to these Conditions of Sale and additionally the applicable statutory law only. Terms that vary therefrom, including any general conditions of purchaser, shall only be considered binding if they have been confirmed by us in written form. Our delivery of goods, performance of services or acceptance of payments does not constitute acceptance on our part of terms that vary from these Conditions of Sale and the applicable statutory law.
2. Offers, Contracts:
Our offers are made subject to confirmation. A contract is only formed when we give order confirmation in writing or when orders are fulfilled by us.
3.1 For the purposes of these Conditions of Sale, (a) "in writing" means in text form (including email, facsimile, computer-generated letters and telegrams), and (b) "written form" means a hand-signed document. Any amendment or supplement to these Conditions of Sale including this Section 3.1, and any termination or mutually agreed cancellation of a contract shall be made in written form.
3.2 Other statements and notices shall be made in writing.
Unless otherwise agreed in writing, our prices are quoted ex works and do not include the packaging costs. Value added tax shall be payable additionally at the statutory rate in effect on the invoice date.
5. Payment, Set-off:
5.1 Unless agreed otherwise in writing, payment to us by purchaser shall be effected latest 5 days after the delivery or the performance of services.
5.2 Set-off by purchaser is permitted only for claims that are undisputed or have been upheld by final decision of a court of competent jurisdiction.
6. Place of Performance, Shipment:
6.1 The place of delivery or performance shall be our place of production or storage.
6.2 If shipment has been agreed to be included, we shall ship the goods at purchaser's risk. Furthermore, we shall determine the manner of shipment, shipment route and carrier.
7. Partial Delivery and Performance:
Partial delivery and performance shall to a reasonable extent be permitted.
8. Delivery Schedules, Delay:
8.1 If we fail to comply with the agreed schedules of delivery or performance or other contractual obligations on time, purchaser shall grant us in writing an additional delivery or performance period of reasonable length, such period to be at least three (3) weeks.
8.2 If delivery or performance does not take place by the end of the additional delivery or performance period and if purchaser for this reason intends to exercise its option to rescind the contract or claim damages instead of delivery (Schadensersatz statt der Leistung), purchaser shall first grant us in writing a further reasonable period for delivery or performance. Purchaser shall, upon our request, notify us in writing within a reasonable time period, whether purchaser intends, as a result of the delay, to rescind and/or claim damages instead of delivery (Schadensersatz statt der Leistung), or insists on delivery/performance.
9. Transport Insurance:
We are authorized to obtain appropriate transport insurance on behalf and at the expense of purchaser in an amount at least equal to the invoiced value of the goods.
10. Retention of Title:
10.1 The goods sold shall remain our property until all our claims against purchaser arising from our business relationship with purchaser have been satisfied.
10.2 If the goods have been processed by purchaser, our retention of title shall extend to the new products. If the goods have been processed, combined or mixed by purchaser with goods of others, we acquire joint title pro rata to that part of the new products representing the invoiced value of our goods in relation to the total value of the other goods which have been processed, combined or mixed.
10.3 In the event our goods are combined or mixed with goods of purchaser or of any third party, purchaser hereby assigns to us its rights with regard to the new products. If purchaser combines or mixes our goods with goods of a third party for payment, purchaser hereby assigns to us its right to payment from such third party.
10.4 Purchaser may, in the ordinary course of its business, resell any goods which are subject to our retention of title or sell the new products. If, upon such sale/resale, purchaser does not receive the full purchase price in advance or upon delivery of such goods or new products, purchaser shall agree with its customer a retention of title arrangement on the same terms as set out herein. Purchaser hereby assigns to us all its claims arising from such sale/resale and its rights arising from the said retention of title arrangement. Upon our request, purchaser shall inform its customer of such assignment of rights and provide us with the information and documents necessary to enforce our rights. Notwithstanding the foregoing, purchaser shall only be entitled to collect payments from claims arising from such sale/resale if purchaser has satisfied its liabilities to us.
10.5 In the event that the security interests granted to us exceed the value of our claims, we shall, upon request of purchaser, release such security interests as we deem appropriate. The exercise of our right of retention of title may only be regarded additionally as a rescission with our prior consent made in writing.
11. Force Majeure:
Conditions of force majeure shall release us from our de- livery and performance obligations. The same release shall apply in cases of shortage of energy or raw material supplies, industrial disputes, governmental decrees, breakdown of transport or of our operations, also where our sub-suppliers or affiliates (as defined in Article15 et seqq. of the German Stock Corporation Act (AktG)) are affected by any of the above.
12. Product Information:
Unless otherwise agreed in writing, the contractual characteristics of our goods shall be exclusively based on our product specifications in their current version. Any information about properties, durability and other data shall be deemed to be guarantees only if they are agreed and indicated by us as such in written form. Written and verbal information about goods, equipment, plant, applications, processes and process instructions is based on research and experience in the field of applied engineering. We provide such information, which is accurate to the best of our knowledge, subject to our right to modify and further develop it and such information shall not be binding. The aforesaid shall not release purchaser of its obligation to verify the suitability of our goods for the use intended by purchaser. This shall also apply to the protection of third parties' intellectual property rights.
All claims, particularly those relating to defects and delivery shortfalls, must be submitted to us in writing without delay, but not later than 10 days from the delivery of goods or, in the case of latent defects, within 5 days from the date such defect(s) is discovered or should have been discovered through reasonable investigation. If purchaser does not notify us of claims within such time period or in the agreed form, our goods or services referred to in such non- compliant notice shall be deemed to be delivered or performed in accordance with the contract. If purchaser, knowing of defects, accepts our goods or services, purchaser shall only be entitled to raise a claim for such defects if purchaser has reserved such rights in writing at the time of delivery.
14. Rights of Purchaser in Case of Defects:
14.1 Purchaser shall have no right to remedies for a defect in our goods or services if the contractually agreed characteristics of the goods and services are only unsubstantially impaired. In the event of justified and rightfully raised defect claims of the delivered goods or services, we reserve the right, solely at our discretion, to either replace or repair the goods or services. We shall always be granted reasonable time to provide such replacement or repair. If our repair or replacement fails to remedy the defects, purchaser shall be entitled to either adjust the purchase price respectively or rescind.
14.2 Furthermore, purchaser may claim pursuant to statutory law damages and refund of its actual out-of-pocket expenses necessary for the purpose of repair or replacement. For the avoidance of doubt, Section 15 shall apply to claims for damages and refund under this Section 14.2.
14.3 Claims by purchaser against us pursuant to statutory law can only be made to the extent purchaser has not agreed with its customers on provisions exceeding the statutory rights in cases of defects.
14.4 In cases where successful claims have been made against purchaser pursuant to the regulations relating to purchase of consumer goods, recovery claims of purchaser by way of recourse demands against us pursuant to such regulations shall remain unaffected.
15.1 We, our legal representatives, employees, and persons employed to per- form our obligations shall only be liable for damages and claims for expenses of purchaser, irrespective of the legal basis therefor, whether based on breach of obligations deriving from the contract and/or tort, (i) in the event of intentional misconduct or gross negligence (grobe FahrlÃ¤ssigkeit) on our part, the part of our legal representatives, employees or persons employed to perform our obligations, or (ii) if the breach of our contractual obligations violates the essence of the con- tract and purchaser relies, and is entitled to rely, on the fulfillment of such obligations (essential obligations). In the event of slight negligence (leichte Fahrlässigkeit) in breach of essential obligations, our liability for damages shall be limited to the foreseeable damage typical for a contract of this nature up to €100,000 or twice the invoiced value of the goods or services in question if this value exceeds €100,000.
15.2 The aforementioned exclusion or limitation of liability shall not apply in cases of damage to life, body or health, or mandatory liability under the Product Liability Act (ProdHaftG) or in other cases of mandatory liability.
16. Time Limits:
Purchaser's right to claim for warranty, damages or expenses shall expire 1 year from the commencement of the time limit stipulated by law, except for defect claims in relation to goods that were used appropriately in construction and have caused the building to be defective where the time limit shall be 4 years. The above time limits shall not apply if we have acted intentionally or in cases of damage to life, body or health, mandatory liability under the Product Liability Act (ProdHaftG) or in other cases of mandatory liability.
17. Compliance with Statutory Regulations, Export and Customs Regulations, Indemnification, Rescission:
17.1 Unless otherwise agreed in written form, purchaser shall be responsible for compliance with statutory and regulatory requirements for the import, transport, storage, use, distribution, and export of the goods. In particular, but not limited to, the purchaser shall not use, sell or otherwise dispose of any of the goods for the development or production of biological, chemical or nuclear weapons; for the unlawful manufacture of drugs; in violation of embargoes; in violation of any legal registration or notification requirement; or without having obtained all relevant approvals required under applicable laws and regulations. The purchaser shall indemnify us against, and hold us harmless from, any claims, damages, costs, expenses, liabilities, loss, claims or proceedings whatsoever arising out of, or in connection with, any breach by purchaser of its obligations set forth above.
17.2 Where a statutory or regulatory approval requirement applies to the export of our goods/services at the time of delivery/performance and such export approval is not granted upon request, we shall be entitled to rescind.
17.3 We are also entitled to rescind in the event a product registration obligation applies and registration at the time of delivery/performance has not been applied for or granted.
17.4 If the purchased goods are subject to customs preferences due to their preferential origin, we reserve the right to automatically generate and issue all declarations regarding the preferential origin of the goods (supplier's declaration, invoice declaration) without signature. We confirm that the declaration of preferential origin will be issued to the purchaser in accordance with our obligations set forth in Art. 5 par. 3 Council Regulation (EC) No. 1207/2001.
18. Place of Jurisdiction:
If purchaser is a merchant, the exclusive place of jurisdiction shall be our commercial domicile. If we institute legal proceedings against purchaser, we shall also have the option to institute legal proceedings at purchaser’s place of jurisdiction (allgemeiner Gerichtsstand).
19. Applicable Law:
The contract and the legal relationship with purchaser shall be governed by the substantive laws of the Federal Republic of Germany and the UN Convention on Contracts for the International Sale of Goods shall not apply.
20. Trade Terms:
If any trade terms have been agreed pursuant to the International Commercial Terms (INCOTERMS), they shall be interpreted and apply in accordance with INCOTERMS 2010.
Should any of these Conditions of Sale be deemed wholly or partly invalid, this shall have no effect on the validity of the remaining terms.