General Purchasing Terms for Elektron Berlin GmbH
I. Conclusion of the Contract, Written Form, Secrecy, Amendments, Documentary Evidence of Origin, Import Authorisation
1. We order on the basis of these General Purchasing Terms. Other terms and conditions shall not become part of the contract content, even if we do not contradict them expressly. If we accept a delivery without express contradiction, in no way whatsoever can this be construed as an acceptance of the supplier’s delivery conditions.
2. Offers are to be submitted as binding and free of charge. They shall be in line with our inquiries. Alternatives are also welcome. Deviations from our inquiries must be clearly marked. No remuneration shall be paid for any visits or the development of offers, projects or drafts, or for trial deliveries.
3. If you do not accept our order in writing within 5 calendar days after receipt, we shall be entitled to revoke it. If you accept our order with deviations, you must notify us expressly thereof. An agreement shall come into existence only if we have recognised said deviations in writing. Delivery calls shall become binding if you do not object in writing within 3 calendar days following receipt.
4. Only orders placed in written form shall be legally binding. Orders made verbally or by phone shall require our subsequent written confirmation in order to become legally valid. The same shall apply to any oral collateral agreements and contractual changes. Orders, order confirmations, delivery calls, documents concerning incoming goods and invoices may also be made in electronic form.
5. You shall be obligated to treat our inquiries, any offers arising thereof and the concluded Contract confidentially; and you may not refer to the business relations established with us in any publication such as advertising materials and reference lists until permission is granted by us in writing.
6. The Contracting Parties shall undertake to treat as trade secrets any undisclosed details of a commercial or technical nature which they have become aware of during the processing of the order or as a result of the established business relationship, and not to make them accessible to any third party. Subcontractors shall also be subject to this obligation. Employees instructed by you to process our order must be subject to an equivalent obligation to observe secrecy. They must be informed of ¤¤ 17, 18 of the German Act against Unfair Competition – UWG. If any of the Contracting Parties realises that an unauthorised third party has obtained unlawful possession of an information that is to be treated confidentially or that a document to be treated secretly has been lost, he or she shall notify the other Contracting Party thereof without undue delay. This obligation to secrecy shall also apply after expiry of this Contract. It shall not expire until and insofar as the production know-how contained in the documents and/or the know-how obtained has become publicly known.
7. Changes to delivery items may be demanded by us even after conclusion of the Contract insofar as this can be reasonably expected of you. If changes are made, both Parties to this Contract should take a reasoned approach to the effects resulting thereof, in particular with respect to any additional and/or reduced expenses as well as the delivery dates.
8. Any documentary evidence of origin requested by us must be provided by you without undue delay in duly signed form including all required information. The same shall apply to tax-law-related evidence relating to international and intra-Community deliveries. These documents must be submitted to us no later than 10 calendar days before the date of delivery. Upon acceptance of this order, you shall undertake to enable the customs administration to examine any submitted documentary evidence of origin and suppliersÔ declarations as well as to provide the required information and, if necessary, to furnish any official confirmation (information sheets). In addition, you shall undertake to indemnify us for any damage caused by the fact that the declared origin has not been recognised by the competent authority. You shall notify us immediately of any delivery which, either in part or in whole, is subject to export restrictions imposed by German or any other law.
9. You must inform us of any required official permits and duties to report concerning the import and the use of the delivery items.
II. Prices, Transfer of Title, Public Price Auditing, Scope of Delivery, Over-Deliveries and Under-Deliveries, Shipping, Transfer of Risk, Packaging
1. The agreed prices shall be fixed prices and exclude all and any further demands whatsoever. Prices shall include packaging cost and the cost of transportation up to the shipping address and/or place of use as specified by us as well as the cost of customs formalities and customs. However, if a price has been agreed as a price Òex worksÓ or Òex storeÓ, we pay only the lowest freight charges. If no prices are specified in the order, your list prices less any rebates agreed with us and/or any customary discounts shall apply. Delivery shall include any contractually agreed auxiliary materials and operating supplies as well as any documentation such as drawings, quality and test certificates, service manuals, spare parts catalogues, and other manuals. In the case of technical equipment, the scope of delivery shall include comprehensive system presentations and useful assembly and operating instructions. In the case of software products, the scope of delivery shall include the complete system and user documentation. In the case of any software developed exclusively for us, the obligation of delivery shall not be deemed performed until we have been provided with the source code.
2. Shipping notes, delivery notes, consignment notes, invoices, and any correspondence with us must include our order number. You are responsible for any consequences resulting from a failure to meet these obligations.
3. We shall only take over the quantities and number of units as ordered. Over or under-deliveries are only permitted if agreement has been reached with us beforehand.
4. Shipment shall be effected at your risk. The risk of deterioration, including the risk of accidental loss, shall remain with you until delivery of the products at the agreed shipping address and/or place of use. We shall have no obligation to dispatch delivered goods before receipt of the delivery documents.
5. Should we ask you to postpone delivery, you shall be obligated to carefully store and insure the duly packed and labelled products for no longer than 30 days.
6. Your obligation to take back packaging shall be subject to statutory provisions. Should you retain title to the packaging, you shall take it back at your expense.
III. Invoicing, Payment, Certificates
1. Invoices shall be sent separately to us in due form after the full arrival of the defect-free goods/after full and defect-free performance, along with any and all documents and data related thereto or in connection therewith. The second copy must be marked as a duplicate. Any invoices that have not been duly issued shall not be deemed received until they have been corrected.
2. Payment will be effected according to standard business practice, within 14 calendar days less 3% discount, on the 1st / 10th / 20th of the month after delivery / performance and receipt of invoice.
3. Insofar as certificates of material tests, such as certificates of analysis and/or other documentation, have been agreed upon, these are an essential part of the delivery and shall be submitted to us together with the consignment. However, such certificates shall be received by us no later than 7 calendar days after receipt of invoice. The payment term for invoices shall commence upon receipt of the agreed certificates and/or documentation.
4. If you have rendered us any services, the invoice shall include proof of performance, a time sheet, etc., which has to have been confirmed by our inspector.
5. In case of a defective or incomplete delivery, we shall be entitled to retain the payment pro-rata until the date of proper fulfilment, i.e. without any loss of rebates, cash discounts or similar reductions in price. Insofar as defective deliveries have already been paid for, we shall be entitled to retain other due payments up to the amount of the effected payment.
6. Payments effected by us shall be subject to correction if there are any grounds for subsequent claims.
7. The acceptance of delivery shall not be regarded as acknowledgement of a defect-free condition. The same shall apply to payments.
IV. Delivery Dates, Delay in Delivery, Force Majeure, Early Delivery, Partial Delivery, Provision of Documentation
1. The delivery dates agreed upon shall be binding and must be strictly complied with. The decisive factor for compliance with the date or period of delivery shall be proper receipt of the goods and/or perfect performance of the service as well as submission of the documentation at the place of receipt and/or place of use stated by us respectively successful acceptance of the goods in due time. Should the period of delivery be deemed or confirmed by you to be ÒestimatedÓ, ÒapproximateÓ, Òunder usual reserveÒ or the like, the period between the date specified and the date on which delivery is actually effected, may consist of 8 calendar days at the most. The unconditional acceptance of a delayed delivery shall not constitute a waiver of claims for damages.
2. If it becomes evident to you that an agreed date cannot be complied with, you must notify us thereof in writing without undue delay by indicating the applicable reasons and the duration of the delay. Any extra cost for an expedited shipment necessary to ensure compliance with the delivery date shall be borne by you.
3. In the event of any delay in delivery, we shall be entitled to our statutory rights.
4. You shall be entitled to claim the absence of any required documents and/or materials and samples to be submitted to us only if you have reminded us in writing to submit any such documents and/or materials and samples and if you have not received them within a reasonable period of time.
5. We accept partial deliveries only upon express agreement. These deliveries must be clearly marked as such in the shipping documents and/or invoices. The remaining quantity must also be stated in said documents. Even if we consent to a partial delivery, the agreed dates of the overall delivery/overall performance shall remain unchanged, meaning that delivery/performance is not complete before complete fulfilment of the Contract.
V. Warranty, Time Limits for Lodging Complaints, Remedy of Defects, New Delivery, Withdrawal, Reduction of Purchase Price, Damages, Serial Defects, Right to Remedy Defects Oneself, Faulty Advice, Analysis of Causes
1. We shall give written notice of any evident defects of the delivery without undue delay as soon as they are discovered in the course of a proper business handling, but however no later than 5 working days from the receipt of the delivery. In case of hidden defects the complaint period is 3 calendar days from the date of detection.
2. The supplier must eliminate, on request, deficiencies in goods/services of which notice is given during the warranty period, also including non-compliance with guaranteed data and standards as per data books and data sheets as well as the absence of warranted properties by repairing or exchanging the defective parts according to our discretion without undue delay and free of charge, also covering all ancillary costs. In particular, you shall bear any expenses resulting from and arising in connection with the discovery and remedy of said defects, even if these expenses are incurred by us, particularly inspection costs, the cost of assembly, disassembly, and reassembly of defective parts, labour and material costs as well as the cost of transportation and any other costs incurred in exchanging defective parts. This shall apply even if expenses increase due to the fact that the delivery item had to be transferred to a place different from the place of performance, however not when disproportionate costs arise. Subsequent performance shall be deemed to have failed after a second fruitless attempt. In this case, we shall be entitled to withdraw from the Contract and to reduce the purchase price. The same shall apply if a reasonable period of time allowed by us for subsequent performance has elapsed without any result. Any agreed time period for subsequent performance shall have the same legal effect as a time limit set by us. Insofar as we are entitled to withdraw from the Contract and if the non-delivery/performance or nonconforming delivery/performance relate to a clearly distinguishable part of delivery/performance, withdrawal from the Contract may be restricted to this part with the remainder of the Contract remaining unaffected thereby. In this case, we shall be obliged to request several proposals only if this does not result or threat to result in considerable time delays or disturbance of the operational, production or business procedures. We will invoice services rendered for own account at market prices usual with third parties. We shall reserve the right to claim damages in each and every case.
3. If more than 3 % of delivered parts/goods show the same kind of defect (Òserial defectsÓ), we shall be entitled to reject the overall delivery quantity as defective and to assert the statutory and contractually agreed claims for defects.
4. If you fail to comply with your obligations arising from the liability for defects within a reasonable period of time specified by us, we may take the necessary measures either by ourselves or by other third partiesÕ services at your expense and risk. Services rendered by ourselves shall be invoiced by us at full market price. In urgent cases, in which it is no longer possible to inform you of a defect and imminent damage before serious damage is expected to occur, we are entitled to immediately undertake repairs ourselves or engage a third party to carry these out. In the performance of our obligation to reduce damages and/or within the framework of any agreements concluded on this matter, minor defects may be remedied by ourselves without any prior consultation; your obligations arising from the liability for defects shall not be affected thereby. We may then charge you for the expenditures required. The same shall apply if suddenly there is a danger of extraordinarily high damages or if there exist any other circumstances which, upon weighing our mutual interests, justify our immediate intervention. For the rest, the regulation in ¤ 637 of the German Civil Code – BGB – shall apply to the work or service contract.
VI. Warranty Period, Suspension of Warranty Period, New Commencement
1. Unless otherwise expressly agreed, the warranty period for material defects shall be 3 years. This shall apply to multiple- as well as single-shift operation. The warranty period shall start upon delivery of the delivery item to us or to a third party named by us at the place of receipt or use specified by us. In case of devices, machinery, plants, and services, the warranty period shall start upon the date of acceptance specified in our written statement of acceptance. In case of delay of acceptance that is not your fault, the warranty period shall be 3 years with effect from the date on which you make the delivery item available for acceptance. The warranty period applicable to buildings and construction materials shall be in conformity with the statutory provisions, unless otherwise expressly agreed. With respect to spare parts, the warranty period shall be 3 years with effect from the date of assembly/putting into operation and shall end no later than 5 years after delivery.
2. As long as negotiations are under way with respect to the justification of our claim, the warranty period regarding the plant/plant components involved shall be suspended from the date of notification of the operational disruption until termination of negotiations. If you deliver any replacement parts in recognition of obligation of subsequent performance, the limitation period with respect to the replacement part delivered shall start again upon its assembly/acceptance. For any subsequently improved parts, the limitation period shall commence to run upon termination/acceptance of subsequent improvement and/or assembly/new production of the subsequently improved part. This provision shall not apply in cases where only a minor defect in a delivered part can be remedied by replacement delivery or by subsequent improvement without a considerable amount of time and money being required. Nor does this provision apply in cases where replacement delivery or subsequent improvement was undisputedly effected as a gesture of goodwill or for the purpose of achieving an amicable settlement of a dispute or in the interest of maintaining a continuing relationship with the supplier. If required, acceptance shall be requested from us in writing. However, the limitation period shall in no case end before expiry of the limitation periods for claims based on defects which have been agreed upon for the original delivery and service.
VII. Quality Assurance, Product Liability
1. You shall be obligated to operate an appropriate quality assurance system corresponding to the state of the art in type and scope, and to document this system for us upon request. You shall conclude with us a corresponding quality assurance agreement, if deemed necessary by us.
2. If claims are made against us because of violation of official safety precautions or because of domestic or foreign product liability regulations or laws because of the defectiveness of our product that was caused by a commodity of yours, we shall be entitled to demand from you compensation for this damage. This damage shall also include the costs of a precautionary product recall. We will inform you with respect to content and extent of the implemented revocation measures within the framework of the provided possibilities and give you the opportunity to comment.
3. In addition, you shall be obligated to take out an adequate insurance against all risks of product liability, including the risk of recall, and to submit the insurance policy to us for inspection upon request.
1. Damage claims asserted by us against you, on whatever legal grounds, shall be excluded in the case of minor negligence. This exclusion of liability shall not apply to the extent that any such damage claims are based on the violation of material contractual duties. In addition, this exclusion shall not apply in cases of damage to life, body, and health.
2. In case of any violation of material contractual duties as a result of minor negligence and in case of gross negligence by any vicarious agent, damage claims shall be limited to compensation for typical damage that could have been anticipated at the time of conclusion of this Contract.
3. Insofar as our liability is excluded or limited, the foregoing shall also apply to any personal liability of our employees, representatives, and vicarious agents.
IX. Technical Documentation, Production Means
1. All documents and records that have been provided to you by us shall remain our property and may not be made available to third parties unless we have expressly consented thereto in writing. Upon completion of the order, all documents and records must be returned to us free of charge. You shall in no case have the right to retain said documents and records. The confidentiality agreement shall only expire if and insofar as the knowledge in the documents provided has become public.
2. Documents provided by us must be checked by you before the start of production/execution with regard to completeness, their internal dimensional coordination and their functional capability for the planned use. All dimensions and details must be checked on site. If corrections should prove necessary, then we shall undertake such corrections without delay and provide you with new documents.
Any lacking drawings and/or documents must be requested from us without delay in writing.
3. The production resources provided by us and such resources produced by you according to our details or documents, such as dies, gauges, stencils, models, samples, tools, moulds, welding templates, EDP programs and suchlike, may only be used by you for the execution of our orders. You may not use these production resources for your own purposes and you may not offer them or make them accessible to third parties. All manner of documents which we require for the planning, use, erection, installation, processing, storage, operation and maintenance (inspection, servicing, repair) of the delivery item must be provided to us by you in due time, in full, without being requested to do so and free of charge.
4. All drawings must be discussed with us before the start of the planning, workshop and/or building site work. They shall be endorsed. The endorsement on drawings, calculations and other technical documents shall not limit or cancel your warranty and guarantee obligations with regard to the delivery item. Unless otherwise expressly agreed, this shall also apply to suggestions and recommendations made by us.
5. After execution of the delivery/performance or 14 calendar days after acceptance, you must send us the drawings, calculations and other technical documents concerning the delivery item which correspond to the actual execution, namely free of charge in the required number in German (written/paper form) and in the customary German Standard (DIN) form and on data carriers. This shall especially include storage, installation and operating instructions as well as documents for the servicing, maintenance and repair of the delivery item. They must correspond to the existing German/European standards and if applicable to our works standards. They must be able to be copied and be in a customary data format. These documents must be updated accordingly without delay as soon as subsequent alterations to the delivery item have been undertaken.
6. You are obliged to transfer title to these documents to us for use which is unlimited in terms of time. This shall not affect the intellectual ownership of these documents. This shall also apply to tools, moulds, plates, etc. which were produced by you for the execution of the purchase order.
7. In the case of installed parts which may be purchased from lists or catalogues, the documents supplied by the manufacturer shall be sufficient in so far as we require them for repairs and/or the acquisition of new parts. These documents must be in German.
8. These stipulations shall apply accordingly to the know-how made accessible to you.
9. If the execution deviates from the production documents which we endorsed, then you shall bear all thus resulting losses suffered by us or third parties. This shall also include costs for subsequent examinations, expert opinions, additional calculations, subsequent treatments, substitute deliveries, etc.
X. Industrial Property Rights, Rights of Use
1. Products which are not part of your standard range and which you have manufactured on the basis of our instructions or according to our drawings or technical specifications may not be offered, sold or supplied to third parties without our prior written agreement.
2. Products from your standard range may not be offered, sold or supplied by you to third parties or otherwise put on the market if our trade name, trademark or logo is still recognisable on the product. The same shall apply if third parties may presume that the product in question was put on the market by us.
3. You shall be responsible that all deliveries are free of third-party industrial property rights and especially that third-party patents, licences or other industrial property rights are not infringed by the delivery and use of the delivery items.
4. The parties hereto mutually agree to immediately notify each other in case of any claims filed against one party for the infringement of contract-relevant property rights.
5. In the case of the culpable infringement of this obligation, you shall indemnify us and our customers against third-party claims arising from any infringements of industrial property rights and shall also bear all costs which we incur in this connection, also costs for any prosecution and product recalls. Your indemnification obligation shall also cover all expenses which we necessarily incur in connection with a claim being made on us by third parties.
6. If the use of the delivered item/service rendered as specified in this Contract is affected by industrial property rights of third parties, you shall be obligated, irrespective of any other obligation under this Contract, to obtain from the person(s) authorised to dispose of the industrial property right the permission to use the delivery/service rendered unrestrictedly and as specified in this Contract without any additional cost to us. You are equally entitled to modify the parts of your delivery/service that are subject to the property right in a way that makes the property right no longer applicable while still corresponding to the contractual specifications existing between you and us.
7. Should your efforts made pursuant to sub-clause 10.6 fail, we shall, at your expense and after consultation with you, be entitled to obtain from the authorised person permission to use the delivered item and service rendered for an interim period of no longer than 6 months. Should all efforts described in sections 10.6 or 10.7 be unsuccessful, you will remove the equipment and return our payment plus interest at the normal bank rate of interest. We reserve the right to enforce any further legal claims.
8. With the delivery of a work protected by copyright we shall receive from you a non-exclusive, unrestricted right of use and enjoyment covering all forms of use.
XI. Production Termination, Delivery Capability
1. Should you intend to change or terminate your production, you shall notify us thereof without any delay. In the event of termination of production, you shall ensure deliverability of the materials delivered to us so far for a period of no less than 12 months following your notification.
2. With respect to the delivery of purchased and standard parts as well as of products manufactured by yourself, you shall guarantee deliverability for a period of 5 years.
XII. Partial Invalidity
1. If individual parts of these General Purchasing Terms should be legally ineffective, then this shall not thus affect the effectiveness of the other provisions.
XIII. Assignment of order only after agreement, Prohibition of Assignment, Set-off, Right of Retention, Transfer of Contract, Alteration of the Corporate Structure
1. You are not entitled without our prior written agreement to assign the order or significant parts of the order to third parties. If this agreement is granted, then you shall remain responsible towards us as the joint and several debtor.
2. You are not entitled without our prior written agreement to assign your claims against us Ñ in whole or in part Ñ or to have them collected by a third party. If extended reservation of title is applicable, then agreement shall be regarded to be given. If you assign a claim against us without our agreement to a third party, then the assignment shall nevertheless be effective. We may then effect performance at our option with the effect of discharging the obligation to you or to the third party.
3. You may only effect set-off with undisputed claims or claims which have been recognised by declaratory judgment.
4. You shall only be entitled to rights of retention if they are based on the same contractual relationship.
5. You must notify us of every transfer of the contract by act of law and of every alteration of your corporate structure without delay.
XIV. Data protection
1. We are entitled to store and process for our own purposes all data received in connection with the fulfilment of the Contract in compliance with the provisions of the German Federal Data Protection Act.
XV. Contract language, Correspondence
1. The contract language is German. All correspondence and all other documentation and documents must be undertaken in German. This shall also apply to all other documentation, e.g. to advance payment and warranty guarantees/bonds. If the contracting parties should additionally use another language, then the German wording shall take precedence.
XVI. Cessation of payments, Insolvency
1. If you cease to make payments, if a temporary insolvency administrator is appointed, if insolvency proceedings are instituted in respect of your assets or if there are bill or cheque protests against you, then we shall be entitled to withdraw from the contract or to terminate the contract with immediate effect without period of notice in whole or in part without this thus giving rise to claims against us. If the contract is terminated by us, then the performance rendered up to this time shall only be settled at contract prices in so far as it can be used by us in accordance with the intended purpose. The loss incurred by us shall be taken into account when effecting settlement.
XVII. Place of performance
1. Unless otherwise expressly agreed, place of performance for the delivery/performance obligation is the shipping address or place of use desired by us. For all other obligations of both parties place of performance shall be Berlin-Charlottenburg (Germany). The risk of the accidental loss or of the accidental deterioration shall only pass to us with acceptance or takeover at the place of performance.
XVIII. Place of Jurisdiction
1. For all present and future claims arising from the business relationship with merchants (ÒKaufleuteÓ), including any claims arising from bills of exchange or cheques, the exclusive place of jurisdiction shall be Berlin-Charlottenburg. The same shall apply if you do not have a general place of jurisdiction in Germany, if after termination of the Contract your place of residence or place of ordinary residence has been transferred to a place outside of Germany or if at the time of bringing an action before court your place of residence or place of ordinary residence is unknown. However, we shall reserve the right to assert our claims at any other permitted place of jurisdiction.
XIX. Applicable Law
1. By way of supplementation the law of the Federal Republic of Germany shall be applicable to the exclusion of the United Nations Sales Convention (CISG) of 11.04.1980.