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General Purchasing Terms and Conditions 04/2006
1. Order placement
We purchase and order only under the following purchasing terms and conditions. Through execution of the order the supplier recognises them for the entire business relationship, including subsequent deliveries, even if its own business terms and conditions are different. Absence of comment on contrary terms of the supplier which are notified to us, or on uniform terms, cannot be interpreted as acceptance of these terms. In particular, absence of comment by us on order confirmations with contrary content cannot be construed as agreement. Any variance from our terms and conditions which is contained in an order confirmation will be construed by us as a rejection of our order. If delivery is nevertheless made, this irrefutably constitutes agreement with our purchasing terms and conditions. The supplier’s order confirmation must be received by us within eight days from the order date at the latest. Incidental verbal agreements entered into before and on exchange of the contract are in all cases ineffective in the absence of a written declaration of our agreement. If it transpires in the course of order execution that, for orderly production of the object, additional work is required which is not covered by the contractually agreed order scope, the contractor must obtain a supplementary order before execution.
2. Prices, scope of delivery and/or performance
In the absence of an express agreement to the contrary, the agreed prices are fixed prices and are deemed to be free to our works or the place of receipt designated by us, including packaging and all incidental costs. The railway and express station is Marl. All work required for perfectly smooth production and installation operations are part of the contractor’s scope of performance even if not expressly stated in the contract. If, in the case of installation or assembly, the material required for performance of the contractor’s work is supplied or made available by us, the contractor’s work also includes unloading of the truck and transportation to the installation location from the place of storage of the plant parts.
3. Delivery dates
The dates stated in our order are goods receipt dates and must be met on a binding basis. Part deliveries are permitted only with our written approval.
4. Delivery and passing of risk; compliance with accident-prevention and works regulations
A pro forma delivery note must be enclosed with each delivery. In the case of direct dispatch to our customers you must use a neutral delivery note and send us a dispatch notification signed by the carrier. Even in the case of purchase contracts, the risk passes to us only on acceptance of the delivery at the place of receipt. In the case of installation and assembly work the contractor is responsible for compliance with all accident-prevention regulations of the main trade association and any works regulations of our final customer on the construction site which are notified to the contractor.
5. Invoicing, payment terms
Following delivery, the invoice must be sent to us in duplicate. Under no circumstances may it be included with the consignment. All the order data must be stated in the invoice. Part invoices are possible only if corresponding part deliveries were expressly ordered. In the absence of an agreement to the contrary, payment is due in 14 days with 3% cash discount or 60 days net. The payment period starts to run from the date of invoice receipt but not before receipt of the goods. In the event of complaints about defects we are entitled to defer payment of the invoice in an appropriate amount until complete clarification, and still to deduct cash discount after this period. If part payment is agreed, the supplier must with the payment demand present a bank guarantee for the part amounts to be paid before delivery is made.
6. Warranty
The supplier guarantees that the objects and services to be delivered comply with the specimens approved by us, the relevant norms (DIN, EC norms, etc.) and all safety regulations. This also applies for the performance data and other characteristics contained in the supplier’s order confirmation. To the extent that we provide plans, drawings, material and/or accessories to the supplier, specify technical data or material qualities or give execution instructions, the supplier is obliged to examine these for completeness, correctness and suitability for the intended purpose. If the supplier raises no objections, it has also to this extent an unlimited warranty liability. To the extent that delivery objects are defective or guaranteed characteristics are missing, we are also entitled at our discretion to demand repair in addition to our legal warranty rights. In the event of a replacement delivery (§ 430 of the German Civil Code/BGB) the supplier must reimburse us for the expenses relating to the replacement. In urgent cases, we are entitled to correct defects in the delivery object at the supplier’s expense or obtain a replacement from third parties.
The warranty period is 12 months from acceptance of handover of the GBT plant by our customer but at the longest 18 months from delivery by the supplier, unless longer periods are stipulated by law or agreed in the individual contract. If objects or substantial parts of a plant are delivered anew the warranty periods for these also start anew. The statute of time limitation for all warranty claims is interrupted by our written defect claim. The examination and complaint deadline (§§ 377, 381 (II) of the German Commercial Code/HGB) is 3 weeks from receipt of the goods at the place of receipt or, in the case of hidden defects, 3 weeks from discovery of the defect. If, however, a longer period is appropriate in individual cases, this will apply. These regulations also apply for excess deliveries or delivery shortfalls (§ 378 HGB).
7. Warranty and security retention
Until expiry of the warranty period we are entitled to claim a warranty retention of 10% of the contract price, which at any time after acceptance of handover may be replaced by the contractor through a bank surety or bank guarantee. For the event that the supplier becomes insolvent before our final payment, we are entitled - without prejudice to further rights - to claim for the duration of the warranty duty an additional security retention to secure our warranty claims in the amount of a further 20% of our contract price.
8. Assignment of receivables
Trade receivables may be assigned to third parties only with our written consent. This does not however affect the supplier’s entitlement to grant its suppliers the right of extended retention of title. The contractor must generally fulfil its obligations under contracts with us through its own company. Use of subcontractors is permitted only with our express written approval.
9. Manufacturer’s liability
If claims are pursued against us under domestic or foreign law for manufacturer’s liability, the supplier must reimburse us for the resulting damage (including costs for possible recall actions) to the extent that it is responsible for the faults triggering liability. In this regard the supplier waives the defence of time limitation unless we on our side are able to plead time limitation towards the claimant.
10. Provision of materials by us
Materials provided by us remain our property; they must be stored separately by the supplier and used only for our order. Even without fault, the supplier is liable for damage or loss. All parts provided must be insured by the supplier in our favour against material damage and theft. Processing or reconstruction of the material is carried out on our behalf. We become the owner of the newly created object in all cases. In the case of joint processing of third-party materials we acquire joint ownership.
11. Property rights (exclusive rights)
All objects, specimens, drawings, films, models, tools, technical instructions, etc. which are supplied to the supplier remain our property. Such items must be kept secret by the supplier and surrendered to us without charge on request at any time. They may not be passed on to third parties or used for the supplier’s own purposes. The same applies to objects which are wholly or partly produced at our expense (eg moulds, tools, appliances, etc.). Modifications to these may be made only with our written approval. These parts must also be insured by the supplier. The supplier is liable for their damage or loss. If improvements are made by the supplier in connection with our order, we are entitled to a non-exclusive utilisation right, free of charge, for commercial exploitation of the improvement and any industrial property rights to it.
12. Patent infringement
If we inform the supplier which country its delivery is to be exported to, it is obliged to examine whether the patents existing for this country stand in the way of unrestricted use. The supplier is liable for all claims for compensation of damages as the result of patent infringement.
13. Place of performance, placement of jurisdiction, applicable law
The place of performance is the place to which the goods are to be delivered in accordance with the contract. If our suppliers are full registered traders (Vollkaufleute) within the meaning of the German Commercial Code/HGB, Marl is agreed as the place of jurisdiction. We are also entitled, however, to pursue claims in any other place of jurisdiction. The contractual relationship is governed by the law of the Federal Republic of Germany. The application of international purchasing law is excluded.
14. Amendments, ineffectiveness
Amendments to these purchasing terms and conditions or other contractual agreements must be set down in writing. If individual parts of these purchasing terms and conditions should lapse by force of law or individual contracts, this will not affect the validity of the remaining provisions.