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General Terms and Conditions of Purchase
I. Scope of application
- These Conditions of Purchase shall apply exclusively; if the Supplier’s General Conditions of Purchase conflict with or differ from same, we shall only recognize said General Conditions of Purchase if their validity has been expressly approved by us in writing. Our Conditions of Purchase shall also apply where we accept or pay for products and services of the Supplier (hereinafter: contractual goods) knowing that the Supplier’s conditions conflict with or differ from our Conditions of Purchase. Our Conditions of Purchase shall also apply to all future deliveries and services by the Supplier.
II. Conclusion of Contract
- Agreements, orders and call off deliveries, as well as other modifications and additions, must be made in writing. An order shall be deemed to be accepted unless the Supplier notifies us to the contrary within ten (10) working days of the order date.
III. Prices, Payment
- Unless a separate agreement is reached, prices are fixed and shall be DDP delivery address (INCOTERMS 2000, 6th Revision) including packaging, plus the sales tax applicable in each case.
- Basicly the payment-condition of our agreements are forced. If there are no agreement the payment condition of 30 day with 3% discount and 60 day net are valid. Payment is subject to audit. Default in payment shall arise only after due date and formal reminder. The amount of interest on arrears shall be determined solely on the basis of the statutory interest rate stated in the German Commercial Code (HGB)
- We retain the right to exercise our statutory rights of set off or retention.
V. Place of performance, Delivery, Packaging
- Unless otherwise defined on a case by case basis, delivery is agreed DDP delivery address (INCOTERMS 2000, 6th Revision). The Supplier shall be liable for the material risk until acceptance of the goods by us or our agent at the agreed place for delivery of the goods.
- Partial deliveries are not permitted unless we have expressly agreed to the same.
- Quantities, weights and dimensions shall be based on the values ascertained by us during incoming goods inspection, subject to evidence to the contrary.
- The Supplier undertakes to use environmentally friendly packaging that can be recycled or disposed of at low cost. Packaging must guarantee protection against damage, dirt and damp during transport and storage in order that assembly at our premises or the premises of one of our agent companies is possible at no further cost. Any important information on contents, storage and transport must be visibly affixed to the packaging. Loaned packaging shall be returned carriage not prepaid to the Supplier’s address.
VI. Delivery Dates
- If agreed deadlines are not met, the statutory regulations shall apply. If the Supplier becomes aware that delivery as specified in the contract is or will be impossible owing to problems with production, supply of primary material, compliance with the delivery date or similar circumstances, the Supplier must notify us accordingly without delay.
- The Supplier shall only be entitled to rely on our failure to provide requisite information where despite having sent a written reminder setting a reasonable deadline we have failed to provide him with the same.
- In the event of late delivery or service we shall be entitled to impose liquidated damages of 0.2% of the net value of the goods delivered late per working day, up to a maximum of 5% of the value of the goods.
- Unconditional acceptance of a late delivery or service does not constitute a waiver of the claims to which we are entitled as a result of late delivery or service; this shall apply up until we have remitted the sums owing in full.
VII. Force Majeure
- Force majeure and events beyond our control shall entitle us, without prejudice to our other rights, to withdraw from the contract either fully or in part, where we have no further commercial interest in performance as a result.
VIII. Provision of Material, Confidentiality
- Materials, parts, containers and special packaging provided by us remain our property. These may only be used for the stated or intended purposes. The processing of materials and the assembly of parts is carried out on our behalf. The Supplier agrees that we thus become joint owners of the products produced using his materials and parts, in the same proportion as supplied to third parties.
IX. Quality Assurance, Incoming Goods Inspection
- The Supplier undertakes to maintain a system of quality management which corresponds to the most recent technical standards. The Supplier shall carry out tests during manufacture in accordance with the requirements of his system of quality management unless we deem particular testing necessary at a preliminary stage and submit a testing plan requiring the same. The Supplier shall carry out final testing of the products which shall ensure that only non faulty goods are supplied.
- Acceptance of the goods or service is subject to an examination thereof as to the absence of faults insofar as and as soon as such an examination is feasible in the ordinary and proper course of business. Such examination shall be limited to the type and quantity of the products supplied as well as any external damage thereto. Furthermore any incoming goods inspection is replaced by the quality assurance measures undertaken by the Supplier in accordance with the provisions aforesaid; the Supplier waives the defence of late notification of defects provided for in § 377 of the German Commercial Code (HGB).
X. Defective Goods
- The statutory regulations on material defects and deficiencies in title shall apply without restriction, unless otherwise provided below .
- In urgent cases, especially in order to counter acute risks or prevent major damage, we shall be entitled to rectify defects ourselves or arrange for such to be rectified by third parties, at the Supplier’s expense.
- Claims for material defects and deficiencies in title shall be time barred upon the expiration of the statutory warranty period.
- Any Products repaired or replaced during the warranty period shall benefit from a new full warranty period upon the terms set out aforesaid and such new warranty period shall commence upon complete performance by the Supplier of our warranty claim.
- The Supplier shall be liable for all costs accruing to us as a result of defective delivery of the contractual goods, in particular transport, travel, work, material costs and investigation costs in excess of those normally incurred.
- If products manufactured and/or sold by us are returned to us on account of defects in the Products supplied to us by the Supplier, or if the price of purchase from us is reduced or if other claims are made against us as a result, we reserve the right of recourse against the Supplier, whereby no time limit needs to be set in respect of our defect rights, as would otherwise be required.
- In the event of recourse we shall be entitled to demand compensation from the Supplier for the expenditure accruing to us in relation to our customers on account of the defective service.
- Notwithstanding sub-clause 3 any claim under sub-clauses 6 and 7 aforesaid shall be time barred not earlier than 2 months after the date upon which we have satisfied the claims of our customers against us.
- Where a defect is ascertained within six months of the transfer of risk it shall be assumed that the defect was existent at the time risk passed except where such assumption is incompatible with the defect concerned.
- Where we exercise our right to rescind the contract we shall remain entitled to use the goods and services provided by the Supplier without charge until we have obtained a suitable replacement. The Supplier shall be liable for any cost incurred due to the rescission of the contract and for any required disposal.
XI. Product liability
- In the event that a claim is asserted against us on the basis of product liability, the Supplier shall be required to indemnify us for such claims upon first demand where and insofar as the loss was caused by a defect in the contractual goods delivered by the Supplier and, in cases of liability with fault, if the fault is attributable to the Supplier. If the Supplier is responsible for the cause of the loss, the burden of proof shall rest with the Supplier.
- In such cases the Supplier shall be liable for all costs and expenses, including the costs of any legal prosecution or recall action. For the remainder, the statutory regulations shall apply.
XII. Final provisions
- Should individual provisions of these General Terms and Conditions be wholly or partially ineffective, this shall not affect the validity of the remaining provisions. A provision that comes closest to the commercial intention of the ineffective provision shall then be agreed.
- The place of jurisdiction is the head office of our company; if we file an action we reserve the right to take proceedings against the Supplier in the Supplier’s jurisdiction or alternatively, at our absolute discretion, to settle the dispute by arbitration in the Supplier’s jurisdiction.
- All legal dealings between the Supplier and ourselves shall be governed by the law of the Federal Republic of Germany, excluding the conflict of laws provisions but including the Vienna UN Convention on Contracts for the International Sale of Goods (CISG).
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