General Terms and Conditions of Purchasing and Orders
The General Terms and Conditions of Purchasing and Order (hereinafter referred to as "GTC") set forth below shall be exclusively applicable to all legal relations with any contracting party (in particular suppliers and subcontractors). Also the VOB (German Construction Tendering and Contract Regulation) applies here if the contract is a special-order contract. Agreements deviating thereof are only valid if we confirm them in writing. Neither the fact that we do not expressly object to an agreement nor the acceptance of services or the payment thereof shall be deemed to be an acknowledgement. The applicability of the general conditions of our contractual partner is specifically ruled out, even if they do not differ from our GTC. The first conclusion of contract leads to the integration of the GTC and shall apply to all contracts in the future without the need of a new agreement.
2. Contract Conclusion, Contractual Object
2.1. The offer by the contracting party shall be issued to us free of charge. The definitive quality of the delivery items owed by the contractor shall be the information in conjunction with our order specifications.
2.2. We are entitled to withdraw the order at any time, if the contracting party does not accept our order within two weeks following its receipt. Delivery call-offs become binding at the latest if the supplier does not reject them within two weeks days of receiving them.
2.3. Individual orders and contracts require a written order statement. The contract takes effect with our binding order respectively our order confirmation.
2.4. The delivery/performance dates marked on our orders/contracts shall be binding. The contracting party must immediately inform us in written form stating reasons and the expected date of delivery/performance if it is foreseeable that it will not be able to respect the agreed delivery date. In the event of a breach of the disclosure obligation the contracting party can not appeal to non-responsibility for the delay.
2.5. In the event of a longer term prevention of the delivery, suspension of payments or the initiation of insolvency proceedings, the rejection of the initiation of such a proceeding due to lack of assets or the initiation of a comparable proceeding against one of the parties, the other party is entitled to withdraw from the Agreement in regard to the yet unfulfilled portion. If the supplier/subcontractor is affected by one of the aforementioned events he shall support us to the best of his abilities to supply the contractual object respectively the contractually agreed service by third parties.
2.6. Involvement of third parties (such as subcontractors, subsupplier, etc.) requires our prior written consent. This does not apply for material procurement. It has to be ensured, by appropriate means (such as contractual agreements with the third party engaged by the contracting partner) that the resulting obligations of the legal relationship between us and the contracting party have to be respected/fulfilled by third parties engaged by the contracting party.
3. Prices, Payment Conditions
3.1. The prices listed in our order/our contract are binding. Unless otherwise expressly provided, the amounts stated are shown exclusive of the statutory value-added tax. Pricing information contain all ancillary costs (such as customs duty, packaging, transportation, insurance, etc.), if not explicitly stated differently.
3.2. We choose to pay the invoices of our contracting party within 14 days after receiving the invoice with 3% discount or within 30 days netto. We shall have the choice to make the payment via bank transfer or check. Whereas the timeliness of the payment is determined by the date at which we have given instructions to our bank to carry out the transfer. There is no responsibility on our part in case of a payment transaction delay between the involved banks. Any payments are effected under reserve of invoice verification.
3.3. In the event that an invoice is received before complete delivery, the payment deadline shall be calculated from the day of the actual delivery. Without a reminder of payment no default of payment shall be applied, provided that a specific payment deadline was not agreed upon. Default interest amount annually 5% above base interest rate.
4. Assignment and Offsetting/Retention Rights
4.1. The contracting party is only entitled to assign its claims against us or assign a corresponding entitlement to collect by third parties with our prior written consent. Section 354a of the German Commercial Code (HGB) shall not be affected by this stipulation.
4.2. Contracting parties shall only be allowed to perform a set-off or exercise a right of retention against us, if these rights result from the same contractual relation and are unquestioned and legally assessed or accepted by us.
5. Place of Performance, Risk Assumption, Default of Acceptance
5.1. Unless agreed otherwise the place of performance is defined in our order sheets/contracts. In case no place of performance was specified our registered office in 08496 Neumark, Neue Reichenbacher Straße 10a is the place of performance. The respective place of performance is also the place of fulfillment (debt to be discharged at creditor´s domicile).
5.2. The contracting party vouches unconditionally for the procurementof of the contractual object and the supplies and services required for his delivery - even through no fault of his own. The risk of accidental loss and the accidental deterioration of the goods shall pass onto us upon handover at the place of performance.
5.3. Approval and acceptance of contracted work is deemed completed after a documented acceptance report in written form has been signed by us. Contracting parties have to request an inspection in writing early enough, before the execution of services can not be verified later due to continuation of service delivery or rather further processing. The acceptance can not be assumed by non-response to a corresponding written request by the contracting party neither by payment for the services nor the actual commencement of the use.
5.4. Delay of acceptance is excluded when the performance of the contracting party was not offered in written form. This is not applicable, if a specific or definable calendar date has been agreed for an act or omission on our part.
6. Retention of Title, Material provided
6.1. The assignment of the contractual object to us shall take place unconditionally and regardless of the payment of the price. If, in contrast a retention of title was agreed for the contractual object it expires not later than upon payment of the agreed price. An extended and expanded retention of is excluded.
6.2. Should we provide materials and the contractual partner started processing, mixing or combining them with others, the corresponding handling will be carried for us. The contracting parties agree that we shall also acquire ownership of the newly produced items according to the proportion of the value of the material provided to the value of the processing and the other constituent parts. The relevant products will be stored for us by the contractual partner until their transfer to us or designated third parties.
6.3. Provided tools and similar utensils may be used solely and exclusively for performance of the agreements concluded with us unless otherwise agreed in individual cases. After completion of the order the contractual partner shall be obliged to hand over said items. The supplier shall not have any rights of retention on whatever basis to the loaned items named under number 6.3.
7.1. The duty to examine and notify of nonconformity according to section 377 HGB (German Commercial Code) is accordingly modified, so that our duty to inspect is limited to defects which are revealed at the incoming goods by an external inspection (e.g. transport damage) as well as an examination of the delivered item and delivery quantity. Apart from that acceptance of the contractual object will be made within the scope of the orderly course of business.
7.2. The obligation to give notice of defects discovered at a later point in time remains unaffected. In all cases, notification of a defect is regarded as being without delay and in time if it is received within 14 calendar days by the supplier.
7.3. We are entitled to withdraw from the agreement or demand compensation instead of the complete service if negligible deviations from the stipulated quality or only impair serviceability of the product exist.
7.4. In the event that subsequent performance is attempted, it shall be deemed to be unsuccessful if the replacement item is not free of defects. Here we have a choice according § 439 BGB (German Civil Code). The statutory period of limitation shall begin again for replaced and repaired parts.
7.5. In the event of a failed attempt at subsequent improvement respectively unreasonableness (e.g. due to particular urgency), no (other) deadline needs to be set by us. The contractual partner will be informed about these circumstances immediately, as far as possible in advance. If we decide to self-execute the removal of defects we shall be able to remedy the defect ourselves and demand an appropriate advance payment for the expenses necessary.
7.6. The contracting partner will be informed immediately and is invited to submit comments in writing about the alleged defects in the event that a claim for damages is lodged against us by third parties. We allow the contractual party to investigate the defect on-site. If the contractual partner does not execute these measures after such a request and if it is not possible to reach an amicable agreement, we will find acceptance for the claim for defects and the obligation to remedy the defect is owed to the third party. Counter evidence in this case shall be incumbent upon the contracting party.
8.1. In principle, the commonly statutory prevailing liability conditions also apply for our contractual partners. Unless a longer period of limitation has been legally set, our contracting party will be liable for any faults of the contractual object occuring within 3 years starting with receipt of delivery respectively acceptance. All claims relating to defects become time barred at the earliest two months after all claims of our clients may have been fulfilled. The term of limitation however will end five years after delivery of the contractual object/performance at the latest.
8.2. In case of third party claims against us regarding product liability the supplier shall release us from such claims if the damages were caused by an error of the item provided by him. In cases of liability depending upon culpability, however, this only applies if the supplier is at fault. It is incumbent on the supplier to prove that he is not responsible, if the cause of the damage lies within the supplier's area of responsibility.
8.3. The supplier shall confirm the existence of a reasonable and adequate product third party insurance policy covered at his own expense during the period covered by the contract, and commits to produce evidence of it on request.
8.4. The above liability limitations shall include claims legal representatives, vicarious agents or agents of the contracting parties. The contracting partner is not released from the obligation to fulfill its contractual duties for us, if delays, dropouts or interferences occur during delivery/performance by his hired third parties.
9. Contractual Penalty
9.1. The contracting party is obliged to pay a contractual penalty of 0.2% of the net order value for each business day exceeding the agreed performance date (see 2.4) but shall in total not exceed a maximum of 5% of the net billing amount. We reserve the right to impose this contractual penalty up until final payment.
9.2. Our acceptance without reservation of any overdue Performance shall not be construed so as to constitute a waiver of our claims for compensation respectively contractual penalty.
9.3. In case the agreed performance date is postponed due to certain circumstances subject to the control of the contracting party, the penalty shall be forfeited in the event of delay of the subsequent performance.
10.1. German law applies to all legal relations between the contracting party and our company, excluding UN sales law. Contract language is German.
10.2. The place of jurisdiction shall be determined on the basis of our registered office in 08496 Neumark. However, we are also entitled to to appeal to another court of jurisdiction.
10.3. The effectiveness of the contract or the other remaining terms shall not be affected in case one of the aforementioned terms and conditions of purchasing and orders might be or becomes inoperative. The invalid clause shall be replaced by a term which, taking into account the intention of both parties in particular with regard to its economic aspects, comes closest to the sense and purpose of the invalid term.