Terms and Conditions of Purchase

Terms and Conditions of Purchase

1.   Offer

a)   The supplier shall adhere exactly to the request of the purchaser; the supplier shall indicate explicitly possible deviations.

b)   Offers from suppliers are considered to be binding. They must be drawn up completely and thoroughly. 

2.   Order and Confirmation of Order

a)   Only written orders are valid. Requests given in other form only become valid by written order. Every order has to be confirmed immediately by the supplier by using the form attached to the order. Subsequent agreements only become valid if they are confirmed by the purchaser in written form. 

b)   The terms and conditions of the supplier are only accepted, as long as they do not contradict these terms for purchasing or restrict or eliminate legal rights of the purchaser. This also applies if the purchaser does not contradict the other conditions or accepts the consignment without opposition. The execution of the order is regarded as an acceptance of these terms for purchasing by the supplier. 

c)   The supplier shall be responsible to the purchaser for the compliance of the contractual obligations in case of engaging sub-contractors in the same manner as its own breaches of the contract.  

d)   If the supplier has not confirmed the order within 10 days after its receipt in writing, we have the right to revoke the order without any disadvantages for us. 

e)   These terms for purchasing also apply to business transactions with the supplier in the future. 

3.   Delivery time

a)   The delivery date referred to in the order is binding. The arrival and the receipt of the consignment at the destination stated by us are relevant for the adherence of the delivery date. 

b)   If the supplier can assume that delivery within the time limit is completely or partially not possible it is his obligation to immediately communicate the delay in written form by declaring the reasons and the estimated duration of delay. The rights of the purchaser will not be affected thereby. 

c)   If the supplier does not fulfill the obligations in the delivery period agreed upon he is liable in favor of the purchaser according to the law. 

d)   In case of delay in delivery we are entitled to demand a penalty of 1% of the order value for each commenced week, but only up to a maximum of 5 % of the order value. All further statutory rights are reserved. The Purchaser shall declare the reservation of the contractual penalty at the latest upon payment of the invoice which follows the delayed delivery. 

e)   In case of delivery earlier than agreed we reserve our right to return the consignment at supplier’s expenses. In case that an earlier delivery has not been returned, we will store the consignment at supplier’s risk and expenses. In case of earlier delivery the due date for payment  remains as agreed. 

f)   Partial deliveries are only accepted if agreed explicitly in writing. In case of such partial deliveries are agreed, the remaining quantity has to be listed in the delivery receipt. 

g)   The supplier can only refer to the absence of documents to be provided by the purchaser if the supplier has sent a reminder in written form before and has not immediately received the documents afterwards. 

4.   Acceptance

Delivery items which have to be installed in the purchaser’s plant shall be accepted when installation has been carried out according to the contract and a test run has been completed successfully.  

5.   Warranty

a)   The supplier guarantees that the delivery item shows no defects which impact its value, capability or condition agreed upon or guaranteed. 

b)   The obligation of examination and notice of defects starts in all cases -no matter if the consignment devolved to the purchaser’s ownership before or has been delivered to the shipper, freight carrier or other agent– only at the time when the consignment has been received at the receiving centre stated in the order. In case of concealed defects, the statutory period for the notification of defects is extended by two further weeks as of the discovery thereof. 

c)   The supplier is liable according to the applicable law for all defects. Irrespective of the legal rights the purchaser can also request elimination of defects or delivery of goods being free of defects. In case of supplier’s tardiness in elimination of defects or in replacement of a good free of defects the purchaser is allowed – at supplier’s expense – to either remedy deficiencies himself or purchase goods free of defects from another supplier. A defect is also an inadequate design in view of the accepted rules of technology. 

d)   The demounting and return of the rejected goods takes place at supplier’s risk and expense. Replacements shall be delivered and installed at supplier’s risk and expenxes to the designated place of use. For replaced or repaired delivery items a new warranty starts anew if there has been a significant defect that requires an extensive repair or a replacement delivery. 

e)   The permission of charts and calculation by the supplier will not affect his warranty obligation. 

f)   The supplier is responsible for not violating any right of third parties and shall indemnify us from any possible claim of third parties. 

6.   Limitation Period

The warranty claim shall be time-barred three years unless a longer period is stipulated by law. The limitation period begins with the arrival of the good at the receiving centre specified in the order. If the purchaser has indicated a defect to the supplier within the warranty period in written form the warranty claim of the purchaser set forth under No. 5 will then be time-barred one year after dispatch of the notice of defect.  

7.   Accident Prevention

The supplier undertakes to execute the order under observance of all appropriate safety and accident prevention regulations and to also deliver the necessary safety arrangements. Beside the mentioned instructions the special instructions issued by us or our customer have to be considered during an installation. The supplier is obliged to inquire about the existence and content of such instructions before installation. In case that necessary safety devices are not included in the total price of the order this has to be pointed out particularly to the purchaser.  

8.   Trademark Right

Irrespective of regulations no. 5 and 6 the supplier shall be liable for infringing patents, copyrights or trademark rights of third parties  - no matter inland or abroad  - in the connection with the delivery or its utilisation. 

9.   Invoice and Payment

Invoices shall not be attached to the consignment, but have to be sent separately - always provided with order numbers - by post. The purchaser shall pay within 30 days net after receipt of the correct and verifiable invoice and the delivery items. 

The purchaser reserves the right to the payment methods (e.g. money transfer, check). Assignments of receivables of the supplier to third parties can only be made with the purchaser’s written approval. Because of organizational reasons payments of the purchaser always take place without examination of the rendered services of the supplier. Payments are not to be regarded as acknowledgements of any kind and do not imply any declaration that the consignments are contractually accepted. 

10. Assignment documents 

a)   The supplier is obliged to provide the purchaser – upon request – with plans, execution drawings, calculations etc. relating to the delivery item for the purchaser’s access and approval and - after verification - to deliver these in the requested quantity as wished by the purchaser. Upon request the supplier shall deliver to the purchaser also the drawings of the essential spare parts with sufficient information for the purchaser to order replacement parts. The purchaser shall make these documents only accessible to third parties as far as this is necessary for replacements, rectifications, repair or resale of the delivery item. 

b)   Documents, models, forms and tools of the purchaser – even though they have been manufactured by the supplier for account of the purchaser – become or remain the exclusive possession of the purchaser and have to be returned to the purchaser with being so requested in a useable condition together with the outstanding delivery the latest. A right of retention of the supplier of the mentioned items is excluded. The items are not allowed to be made accessible for third parties, to be used by the supplier for the purposes of third parties or own purposes and to be used for commercial purposes. They have to be kept accurately and maintained in order for them to be useable anytime. 

c)   In terms of this provision third parties are also all companies, which sell the products of the purchaser. 

d)   These provisions also apply to products, models and documents, which have been produced in  the cooperation of purchaser and supplier or have been changed at the suggestion or by collaboration of the supplier. 

e)   Supplier and purchaser are liable to one another for all damages which accrue from the infringement of one of the above mentioned obligations. 

11. Dispatch

a)   The delivery item has to be dispatched packed and exempt from charges to the receiving centre appointed by the purchaser. 

b)   Supplier has to declare reference no., order no. and purchase order date as well as the receiving centre on the transport documents (consignment note, dispatch form, bill of lading etc.). The delivery address indicated by the purchaser has to be strictly observed. 

c)   In case of piece goods, express items and postal items as well as collective delivery every item has to be tagged with labels or tickets on which reference no., order no. and purchase order date as well as the receiving centre are to be indicated. In case of compact wagon loads by a single order a label on the wagon is sufficient. 

d)   A delivery note indicating the order no. has to be attached to every consignment. Each order shall be handled separately in the shipping documents. If dispatch takes place by using another means of transport than railway the name of the shipping company (ocean carrier, airline, truckage company), the ship or the vehicle and, if necessary, the the name of the captain or the driver have to be indicated on the dispatch note and invoice.   

e)   If not otherwise expressly agreed, the officially acquired weight is decisive for the case of calculation on a basis of weight or unit price. In this case tools and equipment for setting-up shall not be loaded together with the delivery items, otherwise the supplier has to pay the costs for reloading. The weight indicated in the offer (quotation) has to be kept within a +/- 5% margin. 

f)   Delayed outstanding delivery shall take place carriage free and exempt from charges for the purchaser. Additional freight costs which incurred by using faster means of transport in order to shorten the delay shall entirely paid by the supplier. 

12. Insurances

a)   The transportation insurance is to be contracted by the purchaser. In case of shipping orders to carriers it has to be noted that an indemnity insurance shall not be covered to avoid any additional insurance coverage on account of the purchaser. 

b)   Endorsement for the case of heavy cargo transport:
The SLVS Indemnity- and Heavy Load Insurance have to be contracted by the carrier respectively the crane companies at their expenses. 

13. Package

Packaging material will be- if profitable and not otherwise agreed- sent back carriage free against reduction of 2/3 of the amount calculated for packaging. In case of delivery in boxes the usage of box-protection is necessary.  

14. Employee protection

The Purchaser and the Supplier undertake not to directly or indirectly recruit any employees of the other party who are in an employment or other contractual relationship with the party concerned during the term of their business relationship and for a period of up to two years after its termination.  

15. Scope

Should one or more provisions of this Agreement be or become invalid or void, or should they prove to contain omissions, this shall not affect the validity of the Agreement as a whole. The Parties shall endeavour, in due form, to replace the invalid or void provision with a new provision or to fill the gap with a provision which best enables the economic purpose pursued to be achieved.  Additionally the INCOTERMS apply in their latest version at the purchase order date.

16. Jurisdiction and Law

The place of jurisdiction – also for certificate actions – shall be Darmstadt, Germany. However, the purchaser is entitled to choose the place of jurisdiction at the premise of the supplier. The contractual relationship is governed by the substantivelaws of the Federal Republic of Germany excluding the rules governing the conflict of laws. The application of the Convention for the International Sales of Goods (CISG) is expressly excluded.