1.1 These Standard Terms of Purchase shall govern all our enquiries and orders (whether present or future) and all supply contracts and other arrangements relating to orders (whether present or future) made with the supplier (the “Supplier”). We herewith object to any Seller’s terms even in the event that they have been transmitted to us in any confirmation letter or in any other way or that we accept the Seller’s delivery or services without again objecting to such Supplier’s terms.
1.2 Any verbal ancillary arrangement, divergence from these Standard Terms of Purchase, or modification or exclusion of these Standard Terms of Purchase shall require to observe the written form in order to be valid. This shall extend to apply to any abrogation of this written form clause.
1.3 Where these Standard Terms of Purchase require the written form for any notice or contract, the written form shall be deemed to have been observed if communicated by means of telecommunication and in the case of a contract an exchange of letters.
1.4 The Incoterms as amended at the time of entering the contract shall apply except where these Standard Terns of Purchase contain diverging terms or conditions.
2. ENQUIRIES, OFFERS, ORDERS
2.2 Where the Supplier in the Supplier’s offer diverges from our enquiry or the Supplier’s acceptance or order confirmation diverges from our order, the Supplier shall explicitly draw attention to such fact. Offers shall be made free of charge and shall not be binding on us; no consideration shall be payable for any visit, preparation of plans, drawings or the like unless explicitly agreed in writing.
3. PRICES, PAYMENT
3.1 All agreed prices shall be binding.
3.2 Unless otherwise agreed, payments shall become due and payable two (2) months after receipt of the invoice and goods; in the event of payment within 14 days after receipt of the invoice and goods, we shall be entitled to a cash discount at a rate of 3%, or a cash discount of 2% in the event of payment within 30 days after receipt of the invoice and goods. Where performance owed under any contract includes any documentation, test certificate or similar documents, the above payment periods shall not commence prior to due delivery of such documents to us in accordance with the contract.
3.3 No default interest may be claimed.
3.4 The Supplier is entitled to make any payment by bank transfer or cheque.
4.1 All agreed delivery dates and time limits for deliveries shall be binding.
4.2 If any event occurs which may endanger due delivery at the agreed time, then the Supplier shall notify us thereof immediately stating the reasons. This shall not negate the obligation to make the delivery within the agreed delivery time. The Seller shall bear any additional cost of any delay beyond the agreed delivery time.
4.3 Upon exceeding the agreed delivery time, the Supplier shall be in default irrespective of any reminder from us, except where the delivery is prevented by any event lying outside the Supplier's sphere of responsibilities.
4.4 Our acceptance without reservation of any overdue delivery shall not be construed so as to constitute a waiver of our rights, if any, for exceeding the delivery time.
4.5 The Supplier can invoke the non-receipt of any documents to be provided by us that is necessary for making the delivery or service if the Supplier has not received such documents despite written reminder and extension of a period of grace.
4.6 Except where otherwise agreed, the delivery shall be “free delivery address”; the risk shall remain with the Supplier up to the hand-over of the goods at the destination.
4.7 The Supplier shall be entitled to render any partial performance only with our prior consent. This shall not affect our right to claim partial performance from the Supplier.
5. EXECUTION PAPERS
5.1 The Supplier shall not use, copy or make available to any third party any execution papers provided to the Supplier by us for any purpose outside the contract. This shall apply also to any papers provided by us in the course of any enquiry or otherwise prior to making the relevant contract.
5.2 At our request the Supplier shall submit to us for our approval any plans, execution drawings, technical calculations etc. relating to the item supplied and shall provide a master print after approval, to the extent we require such papers for the usual use or for any repairs. At our request the Supplier shall also deliver to us spare part drawings for the major spare parts including sufficient information for obtaining spare parts.
5.3 Moulds, tools, setting copies etc. invoiced to us shall become our property at payment; they shall be kept in safekeeping by the Supplier on our behalf free of charge and shall be rendered up to us at our request.
6.1 Any defect apparent at a proper inspection of the goods after delivery shall be reported within one month after delivery; any other defect shall be reported by us within one month after their detection.
6.2 Warranty remedies for any defect known at acceptance of the goods shall not be excluded even if no statement reserving remedies had been made at accepting the goods.
6.3 If any physical defect becomes apparent within six months after the passing of the risk, then it shall be presumed that the item had already been defective at the passing of the risk, except where this presumption is incompatible with the nature of the item or defect.
6.4 If the Supplier allows any reasonable time limit set to the Supplier to elapse without remedying the defect or delivering defect-free goods, then we shall be entitled to remedy the defect, or have it remedied by any third party, at the Supplier’s cost. This shall not affect any statutory warranty remedy including recourse claims.
6.5 Our approval of the Supplier’s plans, execution drawings, technical calculations etc. shall not affect the Supplier’s warranty obligations.
6.6 The limitation period for warranty remedies including recourse claims shall be three years except where the law provides longer limitation periods. This shall not affect the statutory provisions on the suspension of limitation periods for recourse claims.
7. CONTRACTUAL PENALTY
If a contractual penalty has been agreed, then we shall be entitled to claim payment of any payable contractual penalty even where we had not reserved such right at accepting performance; however, such contractual penalty shall be claimed at or before the time of the final payment.
8. INDEMNITY AGAINST MANUFACTURER’S LIABILITY CLAIMS AND PRODUCT LIABILITY CLAIMS, LIABILITY INSURANCE
8.1 The Supplier shall indemnify us against any manufacturer’s liability claims or product liability claims towards any third party to the extent the Supplier is responsible for the product defect that had given rise to such the relevant claim.
8.2 The Supplier shall take out and maintain product liability insurance with reasonable insured amounts for personal injury and property damage for each insured event. At our request the Supplier shall present proof of having taken out such product liability insurance and of the insured amounts.
9. SUPPLIER’S SET-OFF AND RETENTION RIGHTS, NO ASSIGNMENT
9.1 The Supplier shall have a right to set off with any counterclaim only if such counterclaim is either undisputed or has been awarded in a final and unappealable judgement or is pending and ready for judgement. The Supplier shall have a right of retention only with regard to those claims that are undisputed, have been awarded in a final and unappealable judgement or are pending and ready for judgement, and arise under the same contract with us.
9.2 The assignment to any third party of any Supplier’s claim against us shall be excluded; this shall not affect s. 354a German Commercial Code.
10.1 We shall be liable without restriction pursuant to the relevant laws for any damage or loss caused by any intentional or grossly negligent breach by our statutory representatives or our executives. In the event of any intentional or grossly negligent breach by any ordinary agent employed in our performance and in the event of a slightly negligent breach of any material term or condition of the contract that is absolutely necessary for attaining the purpose of the contract and on the strict compliance with which the Supplier must be able to rely, we shall be liable pursuant to the relevant laws limited to such damage or loss the type and scope of which had been foreseeable by us at entering the contract; in the event of payment default, this shall be deemed to include default interest at the statutory rate. As for the rest, the Supplier’s damages claims for any direct or indirect damage or loss (on whatever legal grounds, including damages claims for breach of any pre-contractual duty and tortuous claims) shall be excluded.
10.2 The limitation of liability stated in this clause 10 shall extend to the liability, if any, towards the Supplier of our statutory representatives, executives and our other agents employed in our performance.
11. PLACE OF PERFORMANCE, LEGAL VENUE, GOVERNING LAW
11.1 The place of performance for the delivery of the goods shall be the destination stated by us. The place of payment for our payments shall be the place of that of our establishments that had made the relevant contract.
11.2 If the Supplier is a Commercial Code business entity, a public-law corporation or a public-law special fund, Königsstein shall be the exclusive legal venue for any dispute arising directly or indirectly under the contract; however, we may elect instead to bring any such dispute before any other court that has jurisdiction pursuant to the law.
11.3 The contract shall be governed by the laws of the Federal Republic of Germany subject to the exclusion of the UN Convention on the International Sale of Goods.
We electronically store and process the data of the Supplier to the extent this is necessary for due and proper performance of the contract.