Article 1 Applicability
1. Our Terms of Purchase apply to the exclusion of any other terms. Supplier terms opposed to or deviating from these terms are not accepted. Failure to respond to other terms disclosed to us by any other supplier does not mean that we approve of such other terms. Likewise, failure to respond to opposing order confirmations does not imply that we approve of them. These Terms apply to supplies and services of any kind. Your opposing terms will not apply even if we fail to expressly reject them or accept ordered goods without reservation. Our Terms of Purchase apply only to merchants within the meaning of Section 310 sub-section 1 German Civil Code (BGB).
2. Any deviation in an order confirmation issued upon orders placed by us is deemed to be a rejection of the order. If such an order is delivered, this is final and conclusive proof that our Terms of Purchase are accepted. Our orders, including all changes and amendments, to be effective, must be made in writing. We can cancel any order placed by us free unless it is confirmed to us by you without any change in writing within 10 days.
3. Our Terms of Purchase also apply to all future business with the supplier.
Article 2 Conclusion of contract, contract documents
1. Our orders, including all changes and amendments, in order to be effective, must be made in writing. We can cancel any order placed by us free unless it is confirmed to us by you without any change in writing within 10 days. Confirmed dates are fixed dates. Orders placed orally or by phone are not effective unless confirmed by us in writing, by facsimile or e-mail.
2. All offers submitted by the supplier and technical plans, schedules, etc. prepared by him are free for us.
3. All tools, models, samples, drawings and other materials or documents which we make available to the supplier remain our property and must not be disclosed to any third party unless with our consent.
4. The supplier is obliged to keep all obviously commercial or other information of which he comes to know in the course of our business relations with him in strict secrecy. The supplier shall obtain similar undertakings of secrecy from his suppliers and contractors. This undertaking survives the end of our business relations with that supplier.
5. We can demand changes to the ordered goods or services even after the conclusion of contract provided the supplier can be expected to tolerate that. In this case, the consequences for both contracting parties, particularly any higher or lower cost as well as the dates of delivery and performance shall be considered reasonably.
Article 3 Prices, payments
1. All prices are fixed prices and include packaging for shipment to the agreed destination. Value added tax at the applicable rate is not included in the prices. Payment of the price is in lieu of all principal and ancillary supplies and services which, according to the offer documents and drawings or catalogs of the supplier, are part of the production of the subject of the contract. The payment of the price is also in lieu of all surcharges, taxes and fees, except sales tax and customs duties, if any. Suppliers with registered office in a country member of the European Union providing goods or services to us are required to disclose their VAT identification number. They are further obliged to provide declarations and disclose information required under applicable regulations, tolerate inspections by the customs authority and submit required officials confirmations. Items for which an export license is required shall be identified in the supplier’s order confirmation or invoice. Imported goods shall be delivered duty paid. All required formalities shall be handled by the supplier. We expressly state that the supplier is not permitted without our express written approval to name us as declarant in the customs declaration. If the supplier should name us as declarant to the customs authorities and if as a consequence of this the customs authorities make any claim on us, we can demand compensation of the damage suffered by us from the supplier, in particular, payments of money that we are required to make to the customs authorities. If we are required to cooperate in the import and export of goods delivered from or to foreign customs territories, the supplier shall contact us in this behalf and agree on the details with us in writing as soon as possible. We bear the cost of clearance through customs. The supplier undertakes to inform us in writing at the time of his order confirmation of whether any cost will be incurred in connection with the customs clearance and of the expected amount involved and whether our cooperation will be needed. We can cancel the contract if the cost of the clearance of the goods through customers exceeds a defined level. We can offset cost and withhold payment to the extent permitted by law.
2. All invoices shall be made out in Euro currency. All invoices shall be sent to us in one copy together with all related documents and data after delivery of the goods has been made.
3. On principle, we pay all available and due invoices less 3% discount, depending on the date on which the invoice is received by us, on the 15th or the last day of a month. Invoices are paid without discount on the 15th day or the last day of the next but one month.
4. We can offset payments of the supplier against receivables of our subsidiary or sister companies.
Article 4 Dispatch, packaging, delivery dates, passing of risk
1. The delivery period in the order is binding. Partial shipments require our previous consent. If it can be foreseen that the delivery of a consignment or the provision of a service will be delayed, we shall be informed of this in writing without delay.
2. Shipments shall be advised to us beforehand. The information comprises the type, quantity and weight of the goods shipped. Our order number shall be specified in all dispatch notes, consignment notes, invoices and correspondence.
3. Packaging materials shall only be used as required and shall be accepted back by the supplier free as required by the packaging Ordinance. The place of performance for the return of all packaging material is the place to which the goods are shippd.
4. If, in exceptional cases, the cost of packaging is charged separately to us, we can return the packaging to the supplier freight paid against compensation of two-thirds of the value specified in the invoice.
5. The supplier is obliged to meet agreed delivery periods and delivery dates. At the end of a grace period in which no compliance occurs we can cancel the contract and claim damages. We can also cancel the contract if you are responsible for the delay.
6. In case of delay the supplier is responsible as provided for in the laws. Liquidated damages, if any, agreed for delayed delivery of goods or provision of service is not affected by this provision.
7. If delivery is delayed, we can claim damages at the rate of 0.5 % of the value of the delayed consignment for every week of delay, including fractions thereof, subject however to maximum 5 % of the value of the delayed consignment.
8. Goods delivered early can be returned to the supplier. If we accept the goods, they are warehoused by us until the agreed date of delivery at the supplier’s cost and risk.
9. Force majeure and well as industrial conflict release the supplier and us from the affected duty to deliver. We will endeavour to provide all required information without delay and adapt our obligations to the changed conditions. The supplier is obliged to do likewise.
Article 5 Properietorship, Assignment of Claims
1. Retention of title favour of the supplier or a third party shall be excluded. The supplier shall not assign its claims against us without our consent.
2. Any material we provide to the supplier for processing in accordance with a contract remains our property. Any combining, mixing or processing with other materials shall be done exclusively for us and on our behalf, with the result that we become pro rata joint owners of the new thing. Combination with other goods that are to be regarded as the main things requires our express written consent. The supplier shall be liable towards us for loss of or damage to our property.
3. The supplier may only set off our claims or assert rights of retention with respect to debts due and owing that are undisputed or res judicata.
4. The supplier shall not assign or pledge its claims against us. Any extended or wider retention of title shall be excluded
Article 6 Defect complaints and warranty
The supplier is responsible for his actions as prescribed by law and, for the rest, as set out below:
1. In cases of defective delivery, we are entitled to make good the defective delivery at the supplier’s expense if we have a particular interest in the quick use of the delivered goods in view of the circumstances of the case and the supplier cannot make good the defect for reasons of time. We will inform the supplier in writing (including by fax or e-mail) before starting the rework.
2. Incoming goods are inspected by us only for externally visible defects and externally detectable deviations of identity and quantity. Complaints concerning such obvious defects shall have been made in time if they are received within 10 working days of the delivery. Payments shall not be interpreted as waiver of the right to lodge complaint. Complained goods are only accepted at the cost and risk of the Seller and warehoused by us on the latter’s behalf.
We reserve the right of making more extensive inspections of goods received by us. Defects found in the course such extensive inspection will be notified as soon as they are detected in the ordinary course of business. In such cases, you waive the defence of delayed notification of defect. The supplier assures that his supplies/services comply with the agreed specifications, the latest state of the art and standard business practices and that a thorough function and quality check has been carried out prior to delivery. In case of underperformance, the supplier is also responsible for damage suffered by us in the ordinary course of business prior to processing the goods as a result of undetected defects of the goods delivered. In any such case, the seller shall indemnify us against claims for compensation by third parties. If despite a written warning, the same or essentially the same supplies and services provided by you are again defective or delayed, we can cancel the contract with immediate effect. Our right to cancellation of the contract in that case also covers supplies and services which you are obliged to make to us under this or any other contractual relationship. For the rest, you are obliged to indemnify us against all claims for compensation by third parties on us - for whatever cause - for any defect of quality or title or any other defect of a product delivered by you and pay the cost necessary for the related litigation.
3. The period of warranty is 36 months from the passing of risk. The validity of longer periods or warranty is not affected.
4. The supplier is obliged to indemnify us against product liability claims of any third party to the extent to which the supplier is responsible for the defect that gives rise to the liability.
5. The supplier warrants the availability of spare parts and assemblies for 10 years after the date of delivery.
Article 7 Copyright
1. The supplier is responsible for assuring that his supplies or services do not violate any industrial property right of any third party. He shall afford us the use of the goods delivered or services provided, including repairs, changes or additions, at home and abroad and indemnify us against all claims by third parties.
2. We are entitled to obtain the permission of using the goods or services from the holder of the respective right at the supplier’s cost.
Article 8 Concluding provisions
1. The supplier is not entitled to contract the order or any substantial part of it to any third party without our prior written approval.
2. The supplier should note that we store personal data that is related to our business relations with him and that the data so stored can also be used by our subsidiary companies.
3. The place of performance is the agreed plate of destination.
4. The principal place of business of the buyer is the exclusive legal venue.
5. The laws of the Federal Republic of Germany apply to the exclusion of the UN Convention on Contracts of the International Sale of Goods and without giving effect to the rules of conflict of German Private International Law.
6. If one or several business terms should be or become ineffective, the other provisions are not affected. Both contracting parties undertake to replace the invalid provision by a valid provision that meets the economic intention of the invalid provision as fully as possible.
Date: 1st July 2007