General Conditions of Purchase (as at 06/03/2018)

1 Scope

1.1 These General Conditions of Purchase (GCPs) apply for all orders for materials, goods, products and services, processing of the same and any enquiries on our part in respect of quotes and tenders.

1.2 These GCPs only apply where the Supplier or Contractor is an entrepreneur in the meaning intended in Article 310 German Civil code (BGB).

1.3 Unless agreed otherwise, the most recent version of these GCPs provided in written form shall apply as a Framework Agreement, including for future similar transactions, without it being necessary to refer to them explicitly.

1.4 These Conditions of Purchase shall apply exclusively. We do not accept any opposing conditions or conditions which deviate from these GCPs; in order for them to be valid we must explicitly agree to them in writing. This requirement of explicit agreement in writing shall also apply even where we accept delivery or the provision of services in full knowledge of the Supplier or Contractor’s General Terms and Conditions, so that acknowledgement thereof cannot be based purely on this knowledge.

1.5 Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of overriding individual agreements.

2 Delivery period and delayed delivery

2.1 The delivery period stipulated by us in the order is binding.

2.2 The Supplier hereby undertakes to inform us immediately in writing if he becomes aware that it is likely that the agreed delivery period cannot be complied with.

2.3 Where the supplier is in default, we shall be entitled to all statutory claims.

3 Delivery, packaging, documents, transfer of risk

3.1 Delivery is to the place stipulated in the order and, within Germany, is free to the door, otherwise with all duty paid in accordance with the Incoterms DDP (ICC version dated 2010). Where the place of destination is not specified and nothing else has been agreed, the delivery shall be made to our headquarters in Wuppertal (Germany). The place of destination is also the place of performance for the delivery and any supplementary performance.

3.2 The Supplier is responsible for obtaining any permits required for the import or export of the goods.

3.3 Where the Supplier provides statements on the originating status of the goods sold, he hereby undertakes to enable the customs authorities to verify the proofs of origin and will provide all the information required and any confirmation necessary.

3.4 The Supplier shall bear the costs of packaging unless agreed otherwise in writing. The Supplier shall comply with the requirements of the applicable Packing Ordinance. At our request, the Supplier shall take back all packaging at its own expense.

3.5 The Supplier undertakes to quote our order number on all shipping documents and delivery notes.

3.6 Irrespective of the type of shipping, the risk of possible loss or deterioration of the goods only transfers to us upon completion of unloading at the place of destination.

4 Pricing and payment terms

4.1 The prices stipulated in the order are binding. They include all taxes (except VAT), contributions, insurance and all costs incurred by the Supplier in fulfilling the order up to and including delivery of the goods to the place of destination, all packaging and necessary documents.

4.2 The Supplier’s invoice must quote our order number and the date thereof.

4.3 We are entitled to the right to set-off, the right to retention and the right to plead non-performance of the contract within the limits of statutory regulations. We are, in particular, entitled to retain payments due, so long as we are still entitled to make claims against the Supplier arising from incomplete or defective services.

5 Warranty, defect claims, limitation period

5.1 Unless stipulated otherwise, the statutory provisions apply as regards our rights in the event of material defects and defects in title in respect of the goods (including wrong delivery and shortfall in delivery) and in the event of other breaches of duty by the Supplier.

5.2 The Supplier shall provide the goods to us free of defects in quality and title. The Supplier shall guarantee that the goods are suitable for the intended use without limitation and achieve the agreed performance values. Any representations or guarantees in the Supplier’s catalogues, brochures, sales documents or its quality control system are binding on the latter. Any technical specifications provided by the Supplier shall be deemed guarantees to us.

5.3 According to statutory provisions, the Supplier is, in particular, liable for the goods having the contractually-agreed properties upon transfer of risk to us. In any case, product descriptions or specifications which, in particular by means of designation or reference in our order, form the subject of the respective contract or are incorporated into the contract in the same way as these General Terms and Conditions, shall serve as the agreement in relation to the condition. It makes no difference whether the product descriptions or specifications were provided by us, the Supplier or our customer.

5.4 The Supplier hereby undertakes to carry out an outgoing goods inspection, in the course of which the Supplier shall verify that the goods to be delivered to us are free of defects in quality and title and that they conform to the agreed characteristics and standards and the product descriptions and specifications.

5.5 In respect of the commercial duty to inspect and notify defects, the statutory provisions (§§ 377, 381 German Commercial Code) apply, subject to the following conditions: our duty to inspect is limited to defects that are manifestly obvious in our incoming goods inspection upon external examination, including of the shipping documentation (e.g. transport damage), or in our quality control by way of a random sample test procedure. Insofar as acceptance has been agreed, no duty to inspect exists. Furthermore, the extent to which an inspection is feasible in the normal course of business, having regard to the specific instance, is to be taken into account. On the question of what measures can reasonably be expected of us, the costs and time involved in an inspection, the technical means of inspection available to us and the need for suitable technical expertise in carrying out the inspection are to be taken into account accordingly. Our duty to notify defects discovered later remains unaffected.

5.6 Supplementary performance also includes dismantling defective goods and re-installing them insofar as the goods have been incorporated into another item and mounted in another place in accordance with the type and purpose of use; our statutory claims in respect of compensation for corresponding expenses remain unaffected hereby. The costs entailed in testing and supplementary performance shall be borne by the Supplier, even if it is subsequently revealed that there was no defect. Our liability for damages in the event of unjustified requests for rectification of defects remains unaffected; but, in this respect, we shall only be liable if we recognized, or were grossly negligent in failing to recognize, that no defect existed.

5.7 By way of deviation from § 442(1)(2) German Civil Code, we shall also be entitled to claims for defects without restriction even where the defect remained unknown to us upon conclusion of the contract as a result of gross negligence.

5.8 Our statutory rights of recourse pursuant to Articles 445a, 445b and 478 German Civil Codes shall be available to us without limitation.

5.9 By way of deviation from § 438(1) No. 3 German Civil Code, the general limitation period for claims based on defects shall be three years from transfer of risk, or, where acceptance was agreed, from acceptance.

6 Intellectual property rights

6.1 The Supplier hereby guarantees that modification and use of the goods does not infringe any third-party property rights.

6.2 Where a third party makes a claim against us in this respect, the Supplier undertakes to indemnify us from the claim upon our first written request. The Supplier’s indemnity obligation relates to expenses which inevitably arise from and in connection with third-party claims, unless the Supplier can show that he is not responsible for the breach of duty on which the beach of the property rights is based.

7 Applicable law and place of jurisdiction

7.1 For these Conditions of Purchase and the contractual relationship between ourselves and the Supplier, including entering into and performing the relevant contract, the substantive law of the Federal Republic of Germany applies to the exclusion of the international UN sales law (CISG).

7.2 The sole place of jurisdiction, including international jurisdiction, for any disputes arising directly or indirectly in connection with this contract shall be our headquarters in Wuppertal, Germany. However, we are also entitled to initiate claims at the Supplier’s place of jurisdiction.

8 Contractual language

Where Suppliers have been provided with an English translation of these GCPs, in the event of deviations only the German version applies.