General Conditions of Purchase
1.
2.
3.
Scope
a)
The following conditions shall be applicable versus natural persons or legal entities or
incorporated partnerships acting upon conclusion of this Contract in the exercise of their
commercial or independent vocational activity (entrepreneur). Our Conditions of Purchase
shall apply exclusively. Conflicting conditions by the pertinent contracting party or those
deviating from our conditions shall not be acknowledged. This shall also apply if we do not
explicitly object to general terms of business or other contract conditions by the pertinent
contracting party. Our Conditions of Purchase shall also apply for all future business
transactions with the pertinent contracting party. With the execution of our order, our
Conditions of Purchase shall be accepted unconditionally.
b)
Deviations from our conditions shall only apply if they have been laid down in writing in the
pertinent contract and confirmed by us in writing. The same shall apply for the application and
inclusion of terms of delivery by the pertinent contracting party.
Contract Conclusion, Prices and Passing of Risk
a)
Orders, agreements and changes shall only be binding if they have been given or confirmed
by us in writing. Orders shall be confirmed to us in writing within 10 days.
b)
The price specified in our order shall be binding and presents a fixed price. The price shall be
understood (plus the respectively applicable value-added tax) free place of use, including
packaging and freight costs. If a price "ex works" or "ex warehouse" has been agreed upon,
we shall accept only the most economical freight costs. The pertinent contracting party shall
bear all costs incurred until surrender to the carrier. The type of pricing shall leave unaffected
the agreement about the place of performance. We shall reserve the right to acknowledge
multiple deliveries.
c)
If "delivery free works" is agreed, the risk shall pass to us upon delivery and surrender of the
goods to be delivered at the appointed place.
Delivery Dates and Delay, Force Majeure
a)
The delivery dates indicated in our order shall be binding. The time of delivery shall begin
with the date of the legally binding order, unless otherwise agreed upon in writing.
b)
If the contracting party detects that the stipulated dates cannot be kept – irrespective of the
reason – the contracting party shall immediately advise us orally and in writing about the noncompliance with the date. Partial deliveries shall only be allowed with our written approval. A
delivery prematurely made without our consent shall not affect the payment term bound to the
intended delivery date.
c)
In case of delay by the contracting party, we shall be entitled – after unsuccessful expiration
of a grace period set for the contracting party – to withdraw from the contract and demand
damages instead of performance. Further statutory claims shall remain unaffected.
d)
In case of a delivery delay for a reason which the contracting party is responsible for, a
penalty shall be payable to us, notwithstanding the above, and – for lack of a deviating
agreement – it shall amount to 0.5% of the purchase price for every started week of delay, up
to 5% maximum. If a ship is named for shipping of the material and this ship is accepted by
the contracting party, the contracting party shall bear – notwithstanding the above – the costs
for demurrage, freight costs,etc. if the material is, for whatever reason, not shipped or not for
the intended point in time.
e)
Moreover, we shall be entitled to withdraw from the Contract in cases of force majeure, strike
and/or natural disasters, as well as an objectively missing credit worthiness of the contracting
party – if any of the aforementioned cases occurs after contract conclusion, and if our
performance claim is jeopardized in case of the contracting party's objective lack of credit
worthiness.
4.
5.
Warranty
a)
The pertinent contracting party ensures that the delivery is in compliance with the provisions
regarding technical safety, occupational and environmental protection in the relevant laws,
ordinances and provisions by the authorities and trade associations, as well as the special
contractual regulations.
b)
We shall be entitled, without reduction, to the statutory warranty claims.
c)
Warranty claims for defective delivery shall be statute-barred after 24 months as of the
passing of risk.
d)
As far as we are obligated to examine the performance and provide a notification of defect –
in commercial transactions according to § 377 subsection 1 AGB (General Business
Conditions) – examination and notification of defect shall have been done on time if they are
made within two weeks after receipt of the goods at ours. If a defect is concerned which only
shows at a later time, the notification shall be on time within the meaning of § 377 subsection
3 HGB (Commercial Code) if it is made until the expiration of two weeks after the discovery
of the defect.
Rights of Third Parties
The pertinent contracting party shall be responsible that the delivered goods as well as their use will
not breach the rights of third parties, particularly industrial property rights by third parties. In case of
claims lodged by third parties due to the breach of industrial property rights, the contracting party
shall release us from all claims lodged in this respect.
6.
7.
Payment Terms
a)
If nothing else is agreed upon in individual contracts, we shall pay net until the 15th day of the
month following the delivery/performance and receipt of invoice. Payments shall not present
any acknowledgement of the correctness of the invoice and/or the contractual compliance of
the performance. In case of a defective delivery/performance by the pertinent contracting
party, we shall be entitled to retain at least triple that amount which is equivalent to the
defectiveness of the matter.
b)
If nothing else is agreed upon in individual contracts, in case of our delay, an interest rate
shall apply at 5 percentage points p.a. above the corresponding basic interest rate by the
Central European Bank. We shall pay by remittance or check at our option. Payment shall be
considered made on time if we had demonstrably given the remittance order until the
payment date or if we had sent the check. Interest after due date may not be demanded.
c)
Against all receivables which the pertinent contracting party has against us, we shall be
entitled to offset with all receivables which we are entitled to from the pertinent contracting
party.
d)
Only after we have given our prior written consent, the pertinent contracting party may assign
claims which the pertinent contracting party has against us under this Contract. Consent shall
be considered granted from the beginning with regard to assignments which are made due to
an extended reservation of ownership.
Reservation of Ownership
a)
With regard to the contracting party's rights of ownership reservation, the party's conditions
shall apply subject to the provision that ownership in the goods shall pass to us upon payment
of this object and, accordingly, the extended form of the so-called current account reservation
shall not apply.
b)
Based on the reservation of ownership, the contracting party may only demand that the goods
are turned out if the party had withdrawn from the Contract.
8.
Place of Performance, Jurisdictional Venue and Applicable Law; Final Provisions
a)
Place of performance for deliveries and performances shall be the point of use; for payments
our place of registered office.
b)
At its costs and without delay, Seller shall take care that all effective requirements – e.g.
export permits – necessary for the order in the Seller's country shall be available and remain
valid during the order processing. If the contracting party does not meet this obligation, we
shall be entitled to withdraw from the Contract if necessary and demand damages in any
event from the contracting party. The same shall analogously apply in the event that e.g.
necessary permits are not granted – despite the contracting party's endeavours – within a
period of time which is reasonable for us, or if they are reversed or become invalid during the
processing.
c)
Authoritative for the interpretation of commercial clauses shall be the INCOTERMS in their
respectively valid version.
d)
Should individual provisions of these Conditions of Purchase be or become invalid, this shall
not affect either the validity of the Contract or the validity of the remaining provisions.
e)
The jurisdictional venue shall depend on our place of registered office; however, we shall
also be entitled to lodge claims against the pertinent contracting party at its general
jurisdictional venue or at any other legally allowed jurisdictional venue. This shall also apply
for bill and check liabilities.
f)
For any and all performances on our part, German law shall exclusively apply, such as it is
applicable among residents. The application of the U.N. Sales Convention (CISG) shall be
explicitly excluded.
g)
These General Conditions of Purchase shall also apply analogously for contracts of a different
type, especially contracts for services and contracts for work done and materials supplied.