• General delivery and performance conditions

  General delivery and performance conditions ENTEX Rust & Mitschke GmbH (Bochum, April 2011)

  • § 1 – Content of the Contract

  The following regulations are valid for all our performances and deliveries resulting of agreements of our contracts which will be reached in all individual cases.

  • § 2 – Offer

  Documents such as illustrations, drawings, indications of weight and meas-urements, which are belonging to the offer, are only approximately definitive, as far as they are not expressly indicated as binding. Estimates, drawings and other documents are subject to the right of ownership and to the copy-right of the supplier; these documents are not permitted to make plans, which are indicated as confidential by the purchaser, available to third persons without his consent.

  • § 3 – Delivery Time

  1. The delivery time is, in general, not binding. It has to be regarded as binding only, if the obligation is expressly stated in the contract.
  2. The delivery period begins with the dispatch of the confirmation of order, but not before documents, authorizations and releases have been furnished by the customer, not before all other involving dealings of the purchaser, which are necessary and are condition that we will be able to fulfil our ser-vices, executed.
  3. The delivery period begins each time a new when the purchaser demands alterations or supplements of our services after the confirmation of order has been dispatched. If the requested alterations and supplements can not be executed within the new delivery period, this delivery period is not valid for them. The delivery period is extended appropriately by the period of time concerning measures taken during industrial actions, particularly, strikes and lockouts as well as these obstacles, which are beyond supplier’s control, as far as these obstacles have a considerable influence on the completion or the delivery of the ordered product. This is also valid if the described circum-stances occur in the connection with sub-suppliers. The above mentioned circumstances will also not be represented by us if they occur during a delay, which does already exist. In important cases, the supplier will inform his customer about the beginning and the end of obstacles, as soon as possible.
  4. The agreed delivery period will be extended – regardless of our rights concerning the delay of the buyer – by the period of time in which the buyer is in delay regarding his obligations of this or another contract, which have been concluded with us.
  5. If, we, ourselves will be in delay, the purchaser is only allowed to withdraw from the contract if he has granted us a new deadline with the threat of refusal and if this extension has not been met by us.
  6. Instead of the withdrawal from the contract, the purchaser can claim damages according to the Civil Code, § 326, paragraph 1. The liability for compensation includes, in principle, only the direct damage.
  7. If the conditions of the contract reveal that the liability for indirect damage has to be urgently necessary in the interest of the buyer, the right to claim damages is restricted on the extent of the damage that can be foreseen by us at the time of the completion of the contract.
  8. In any case, the extent of the claim is limited on 5 % of the net volume of the delivery.
  9. Claims of compensation concerning § 286, paragraph 1, Civil Code, are excluded. If they are included, owing to a particular agreement, the buyer has the right to claim damages for delay under exclusion of further compensa-tions, in case that the damage has been caused by an act of culpable negli-gence or intentionally by us. The compensation for delay is about 0,5 % for each week of delay, but not more than 5 % of the value of that part of the whole delivery which cannot be used in time or as stipulated in the contract due to the delay.
  10. If claims of damages, referring to No. 8 and No. 9 are asserted, they will be restricted to a total of 5 % of the net delivery volume.
  11. Goods, which have been advised as ready for dispatch to the customer, have to be immediately collected. Otherwise, we are entitled to store the goods at the buyer’s risk and expense and to charge the delivery on his account, at the latest, this will be the case 10 days after the announcement that the delivery has been ready for dispatch. The buyer’s account will be charged with the costs which result from the storage, starting one month after the advice of dispatch, at least, his account will be charged with 0,5 % of the invoice amount per month, if the goods are stored in our work. Nevertheless, we are entitled to use the goods for a different purpose and to deliver them within a period has been fixed without success.
  12. That fulfilment of the contract duties of the buyer is a condition that the delivery period will be observed.
      The buyer is not allowed to reject part of deliveries.
      The delivery period has to be regarded as observed if the goods have left the work until the deadline had passed or the dispatch had been advised.

  • § 4 – General Impairments of Services

  As far as this contract does not stipulate any regulations concerning impair-ments of services elsewhere, the following has to be observed:

  1. If the customer demands claims of damages, we have to grant these claims only if the damage has been caused intentionally or by an act of culpable negligence. The reliability concerning indirect damage is urgently necessary in the interest of the purchaser, the right to claim damages is restricted on the extent of the damage, which can be foreseen by us at the time of the completion of the contract.
     In any case, the extent of all claims of compensation should not exceed 5 % of the net delivery volume.
  2. If impossibility occurs during the delay of acceptance or through the buyer’s fault, he has the duty to return the service.
  3. Claims of the customer resulting of an unjustified demand, or of culpa in contrahendo, or of other obstacles influencing our service, as well as of unlegal action, are excluded, as far as this contract or legal regulations do not lay down anything else.
     If such claims are asserted, and, as far as we are in a position to make replacements, § 10 will be accordingly valid. By the way, the restrictions of § 3, No. 5 to No. 8 including, as well as the restrictions of § 4, No. 1 have accordingly to be regarded as valid.
  4. As far as it will be legally authorized, the liability concerning third persons, who are engaged in fulfilling the order, is excluded – also if it is due an act of culpable negligence. Nevertheless, if we will accept liability in an individual case, the restrictions of No. 3 will become effective accordingly.

  • § 5 – Extent of the Delivery

  Regarding the extent of the delivery, our written confirmation of order has to be definitive, in case of our offer with a time limit and acceptance of the offer within the period stipulated, provided the confirmation of order will be re-ceived in time. Sub-agreements and alterations are subject to our written confirmation.

  • § 6 – Price and Payment/ Settlement

  1. Without a particular agreement, our prices are quoted ex works, including loading in our plant, but excluding package.
     If not elsewhere in the contract stated, the payment has to be arranged by cash and strictly net in the following procedure:
     1 /3 on receipt of confirmation order,
     1 /3 as soon as the purchaser has been advised that the main parts of his order will be ready for dispatch,
     the last third within 30 days.
  2. As far as there exist no different agreement, invoices have to be paid immediately by cash on receipt without reduction. Drafts and checks can only be used if it has been expressly stipulated in the contract. Settlements by a draft or a check can only be accepted if they really will be cashed in. If pay-ments are not settled in time, we will charge the buyer’s account with inter-ests in the amount of 3 % exceeding the discount rate of the respective regional bank.
  3. Non-compliance of the conditions of payment or of other duties or circum-stances, which will become known to us after completion of the contract, can reduce the buyer’s credit standing. As a consequence of this, the purchaser has to settle all our outstanding accounts, also those, which are relating to other contracts. In this case we would be entitled to execute outstanding deliveries only against payment in advance.
  4. The purchaser is not permitted to hold up payments or to charge claims which have been assessed as not legally valid.
  5. If, during the period of the execution of the order, prices will generally be raised in the frame of legal requirements, or if standard wages or an increase of prices of material will change our calculation basis, the altered prices concerning the outstanding delivery will be effective, as far as this will be legally permitted.

  • § 7 – Transition of Risk and Acceptance

  1. The risk will be transferred to the buyer at the latest at the time of dispatch of parts ordered, also if the latters will be transported by us, or, if we make part deliveries, or, if we effect other services, e. g. the expenses concerning dispatch and installation.
     If requested by the customer, we will take out an insurance at his expense against theft, break, transport, fire and water damage, as well as against other risks which can be insured.
  2. If the dispatch is delayed because of circumstances caused by the cus-tomer, the risk will be transferred to him from the moment where the goods will be ready for dispatch; however, we are obliged to take out the insurances the buyer requests and to charge it on his account.
  3. Goods delivered have to be accepted by the customer, also if they have irrelevant defects, regardless of the rights stated in § 10.

  • § 8 – Deviation from the Services mentioned in the Contract

  Deviations from measurement, weight and quality, alterations referring to construction and form of the construction pattern, as far as the ordered object and its appearance will not substantially be changed are allowed. Details of services, weights and other characteristics are approximately valid.

  • § 9 – Right of Ownership

  1. The right of ownership of the delivery object is subject to the receipt of all payments due to the contract.
  2. Furthermore, all our payments which have to be settled in connection with the delivery object in future (e. g. repairs replacements, etc.) are subject to its settlement.
  3. Besides, the goods will remain our property until all our outstanding de-mands, resulting of previous contracts with the purchaser, will be settled.
  4. The purchaser is only allowed to make use of the goods in the frame of business properly conducted. In case of a disposal on the part of the buyer, concerning the goods subject to the right of ownership, he has to assign to us the claims arising from the disposal, in order to make the settlement of our payments sure.
  5. We are entitled to take out an insurance at the buyer’s expense against theft, break, fire, water and other damage, as far as the buyer himself haws not done this provable.
  6. The purchaser is not allowed, either to pawn the delivery object or to transfer the ownership as security on a dept. With regard to pawning, as well as confiscation, or other orders effected by third hand, the customer has the duty to inform us about these proceedings immediately.
  7. If the buyer does not act according to the contract, particularly concerning the delay of payment, he is obliged to return to us the goods after we have sent him a reminder. If, in this connection, we will take the goods back, it does not mean our withdrawal from the contract, as long as there will be no contractual and legal conditions, and, as we have not expressly announced our withdrawal. The returning of the goods is merely to secure our claim against the customer. We will keep the goods for the buyer. Our claim for payment will remain. After the payments have completely been effected, the goods will be returned by us to the buyer. The return and storing of the delivery object is carried out at the customer’s expense. If the goods are stored in our work, we will charge his account with, at least, 50 % of the invoice amount per month.
  8. The enforcement of the right of ownership, as well as the pawning of the delivery object by the supplier, are not to be seen as withdrawal from the contract, as far as the law of instalment will not be taken into consideration.

  • § 10 – Liability for Delivery Faults

  We will be liable for deliver faults including the loss of qualities, which have expressly been assured, with exception of following further claims:

  1. According to our estimation, all those parts have to be repaired or delivered free of charge from a new, which cannot be used or will substantially turn out as spoiled in its usefulness within 6 months (if it is a multi-shift-plant, it will be within 3 months) since putting into operation, at the latest, however, 9 months after we have sent an advice of dispatch to the buyer; regarding machines at the most about 1000 running hours due to a circumstance which will happen before the transition of the risk – especially because of a faulty construction, inferior building material or faulty quality. The recognition of such defects has to be announced to us immediately in writing.
  2. The buyer has to inform us about visible defects within 2 weeks after receipt of the goods at the place of destination. If this information is not furnished within the stated period, we will consider the goods to be delivered as free of faults. In this case, claims regarding faults of the delivery are impossible. If the dispatch, the installation or the putting into operation is affected by our own fault, the liability will be expired at the latest 12 months after the risk has been transferred.
  3. Concerning products delivered by another supplier, our liability is restricted to the assignment of the claims of liability, which we have against the sup-plier.
  4. The right of the customer to claim faults will be in lapse, as far as the contract does not include different regulations; in all cases, it will be from the moment the letter of complaint is sent punctually, that means 6 months after refusal of the rebuke by us, at the earliest however , with the expiry of the guarantee period.
  5. We will not grant guarantee concerning damage caused by the following circumstances:
     Unsuitable or improper usage, faulty assembly or putting into operation by the buyer or another person, general wear and tear, faulty or careless handling, unsuitable means of production, material of replacement, faulty construction work, unsuitable building ground, chemical and electro-chemical or electric influence, as far as these faults are not caused by us.
  6. In order to enable us to execute all repairs and substitute deliveries, which will be necessary according to our own estimation, the customer has to spend the required time and to give the opportunity after he has notified us about it; otherwise, we will be released from the liability. Merely in urgent cases, e. g. jeopardizing of the works security, and, in order to provide expressively high defects, about which we have to be informed at once, or, if we are in delay regarding the removal of the defect, the customer is entitled to eliminate it himself or by a third party and to claim compensation for the necessary expenses.
  7. Concerning the costs resulting from the repair or substitute delivery, we will bear the costs – as far as the complaint is justified – of the substitute part including the dispatch, as well as the adequate costs for the removal and installation, furthermore, if the compensation for cost can be demanded according to the situation of the individual case, we will bear the costs of the furnishing of engineers and temporary workers. Apart from that, the customer will bear the costs.
  8. The guarantee period for substitute parts and repairs is about 3 months, but it will exist at least until the original guarantee period for the delivery part has expired. The period regarding the liability of defects will be extended by the time of the work interruption caused by the repairs.
  9. The liability for consequences resulting of alterations or repairs, improperly arranged by the buyer or a third person without our previous approval, will be revoked.
  10. If repairs or the substitute delivery turn out to be a failure, the customer can demand the cancellation of the contract. Moreover, is entitled to cancel his order if we let pass the extended period fruitless by our own fault, which has been appropriately fixed regarding the repair or substitute delivery with reference to a fault accepted by us in the sense of the delivery condition.
  11. Further claims or the customer, especially a claim for damages, which do nor affect the delivery object itself, are excluded, as far as this is legally authorized.
  12. In general, this is also for claims owing to the lack of qualities which have been expressly assured. As an exception, claims of damages can only be granted, if the contract parties have required liability exceeding the above mentioned liability extent and they have agreed it in writing. If a claim for damages is granted due to the lack of an assured quality – as this claim will exist just after the failure of repair – our liability will be restricted to the dam-age extent, which could be foreseen by us at the time of completion of the contract.

  • § 11 – Exceptions for Liability/ Unexpectable Events

  1. As far as legally allowed, all other farreaching claims of the customer will be excluded, which will go beyond the claims for cancellation, termination or diminishing, as well as for damages of any kind, especially for such damage, which do not affect the delivery object itself.
  2. In case of unforeseeable events or obstacles in accordance with § 3, No. 3 of delivery conditions, as far as they will considerably change the economic meaning or the content of the service, or, as far as they will substantially have an effect on the business of the supplier, and in case of a non-fulfilment of the execution, which will be later realized, the contract will be appropriately adapted. So far as this will be economically untentable, the supplier has the right to withdraw entirely or partly from the contract.
     Claims for damages of the purchaser due to such a withdrawal do not exist. If we make use of the right of withdrawal, we will inform our customer immedi-ately about it after we have realized the consequences of the events, espe-cially then, if we have first made an agreement with the customer about an extension of the delivery period.

  • § 12 – Alterations and Supplement / Place for Fulfilment / Court of Jurisdiction / General Sales Conditions of the Customer

  1. Alterations and supplements of this contract have to be drawn up in writing.
  2. The place of fulfilment for all duties regarding this contract is Bochum, as far as nothing else has been expressly and in written agreed.
  3. With regard to all disputes emerging of the contract conditions, legal proceedings have to be instituted at the court, which is responsible for the head office of for our subsidiary – if the delivery will be effected by the latter – in this case the customer represents a person with qualifications in business or commerce, or if he is a corporate body of public law. We are also entitled to institute proceedings at the buyer’s head office.
  4. General Sales Conditions of the buyer are not binding for us, also we have not expressly made an objection.
  5. If one or more regulations of this contract become inoperative or invalid, the validity of the contract itself will not be concerned by it.
     The contract parties are obliged to replace the inoperative or invalid regula-tions by such which will come economically and juridically very close to the ideas of the parties at the time of the completion of the contract.
• VDMA

  Conditions for the Delivery of Machinery inside Germany (Frankfurt, 2007)
  VDMA-Conditions_for_the_Delivery_of_Machinery_inside_Germany_Stand_2007.pdf

• Orgalime SE 01

  General conditions for the supply and erection of mechanical, electrical and electronic products (Brussels, September 2001)
  Orgalime_SE_01_-_General_conditions_for_the_supply_and_erection_of_mechanical__electrical_and_electronic_products.pdf

• Terms and Conditions of Purchase of ENTEX Rust & Mitschke GmbH (Purchaser)

  § 1 Scope, Form

  1. The present Terms and Conditions of Purchase apply to all business relationships with our suppliers. The Terms and Conditions of Purchase only apply if the supplier is an undertaking (Sec. 14 of the German Civil Code – BGB), a legal entity under public law or a special public fund.
  2. Unless otherwise agreed, the version of the Terms and Conditions of Purchase valid at the time of the purchaser’s order or last communicated to the supplier in text form will apply as a framework agreement even for similar future contracts without the need to draw attention to their inclusion in each individual instance.
  3. These Terms and Conditions of Purchase apply exclusively. Divergent, conflicting or supplementary terms and conditions of sale and delivery will only become an integral part of the contract to the extent that the purchaser has expressly agreed to their validity in writing. This requirement for agreement will apply in particular if the supplier refers to their terms and conditions of business as part of their order confirmation and the purchaser does not explicitly reject them.
  4. Individual agreements (e.g. umbrella supply contracts, quality assurance agreements) and specifications in the purchaser’s order will take precedence over the Terms and Conditions of Purchase.

  § 2 Statutory Provisions

  1. Statements and notifications by the supplier of legal relevance with regard to the contract (e.g. the setting of deadlines, reminders, withdrawal) must be submitted in writing. Writing as defined by these Terms and Conditions of Purchase includes written form and text form (e.g. letters, emails). Statutory requirements regarding form and further evidence, in particular in the event of doubts concerning the legitimation of the declaring party, will remain unaffected.
  2. References to the validity of statutory provisions are for the purpose of clarification only. Such statutory provisions therefore apply even without any such clarification unless they are directly modified in these Terms and Conditions of Purchase or explicitly excluded.
  3. Standard commercial terms must be interpreted in accordance with the INCOTERMS of the international chambers of commerce in the version in force when the contract is concluded.
  4. Rights and obligations arising from the order and its execution may only be transferred with the written agreement of the purchaser unless deliveries from subcontractors are customary.

  § 3 Contract Closure

  1. The purchaser’s order will be deemed to be binding at the earliest on its submission or confirmation in writing. The supplier must draw the purchaser’s attention to any obvious errors (e.g. spelling mistakes and miscalculations) and omissions in the order including the documentation accompanying the order for the purpose of correction or completion before accepting the order; otherwise the contract will be deemed not to have been concluded on the terms stated.
  2. If the supplier has doubts about details of the contractual performance, e.g. regarding the lead time, it will contact the purchaser without delay. Deviations from the purchaser’s specifications are only permitted if they are approved by the latter in writing.
  3. If the need arises to change the work ordered from the supplier, the supplier will inform the purchaser without delay and liaise with the purchaser regarding the details. The same applies if the supplier identifies the need for a change for other reasons.

  § 4 Delivery, Lead Time and Delayed Delivery

  1. Delivery will be made to the location specified in the order. If no destination is specified and there is no agreement to the contrary, delivery must be made to the purchaser’s place of business in Bochum. The relevant place of delivery is also the place of fulfilment for the delivery and any supplementary performance.
  2. The lead time specified in the order by the purchaser is binding; the purchaser requires the delivery for its own scheduled performance. Each delivery date is a fixed date transaction unless explicitly otherwise provided for.
  3. The lead time starts with the date of the order letter or on which the contract is concluded. In the event of verbal, telephone and email orders, their timing will be definitive. The purchaser is entitled to reject early deliveries and performance as well as partial deliveries and partial performance from the supplier or to put goods into storage at the supplier’s expense and risk. This will not give rise to any payment obligation on the part of the purchaser. Any such obligation will only arise at the time of delivery provided for in the contract.
  4. If it is likely that the agreed lead time cannot be met or can only be partially respected, the supplier is obliged to immediately inform the purchaser in writing, stating the reasons for and the probable duration of the delay. If the supplier fails to do so, it will not be able to invoke the impediment vis-à-vis the purchaser and will be liable to the purchaser for all resulting damages.
  5. If the supplier fails to provide its performance at all or not within the agreed lead time or it is delayed, the purchaser will be entitled to choose between requesting late delivery and compensation for late delivery or compensation for non-fulfilment or withdrawing from the contract.
  6. If the purchaser decides to make a covering purchase elsewhere to meet its needs after failure to meet the delivery date, it will be free to choose a supplier that submits the most attractive offer with regard to the delivery date. The supplier will have no claim for compensation due to additional costs.
  7. If the purchaser decides to extend the lead time, the new lead time will also be deemed to be a fixed, binding date. Regardless of any extension to the delivery date, the purchaser can demand compensation for any damages arising from the failure to meet the original delivery date. Any contractual penalty agreed for late delivery will be unaffected within the bounds of Sec. 340 (2) BGB. If such a penalty is agreed, it can be asserted until the final payment falls due without any requirement to reserve the right to do so in accordance with Sec. 341 (3) BGB.

  § 5 Contractual Obligations

  1. The supplier will inspect its deliveries and any other performance for mistakes, contradictions, ambiguities and unsuitability of the product ordered for its intended business purpose, without delay and on its own initiative. The supplier must inform the purchaser immediately if any of the a.m. defects apply. If the supplier fails to meet its duty of notification, it cannot invoke any such notification vis-à-vis the purchaser and will also be liable for any resulting damages incurred by the purchaser.
  2. If the presentation and approval of the supplier’s drawings have been agreed, inspection on the purchaser’s premises will be limited to their geometric installation dimensions. More in-depth tests and approvals such as connections to other parts of the equipment and system parts, must be explicitly defined.
  3. Documents of any kind which the purchaser needs in order to use the delivery item for the particular contractual purpose must be provided by the supplier in good time, unsolicited and free of charge. In the case of physical objects, this includes in particular the drawings created for the item, and for orders to create software, it means documentation which enables the purchaser to use it for its intended purpose including maintenance and updates to the software.
  4. The supplier will also document its work in suitable form at the request of the purchaser. Equally, the purchaser has a right to suitable documentation in accordance with MD 2006/42/EC and PED 2014/68/EU for work provided by the supplier without a manufacturing order or order to create software. The supplier has to be certified according to IS0 9001 (quality management) and according to ISO 3834 (quality management for welding companies), as far as (partial) contractual performances for the welding companies are concerned.
  5. If contractors of the supplier are employed on the purchaser’s premises or those of its customer in performance of the order, the supplier must instruct such persons to respect statutory, trade association and company accident prevention regulations and recognised health and safety rules as well as any general and specific company directives – in particular any smoking bans.
  6. Any items or machines lent to the purchaser will be insured by the purchaser against the usual risks. The purchaser will not accept any further liability for the loss of or damage to property unless the purchaser or its employees have acted wilfully or with gross negligence.

  § 6 Transfer of Risk and Delay in Acceptance

  1. The risk of accidental loss or accidental deterioration of the item – including in the case of free delivery – is transferred on the purchaser’s acceptance or only with an offer to accept the goods at their agreed place of delivery in which the delay in acceptance is explained.
  2. If the supplier delivers partial performance for the purchaser, the risk in the partial performance will only be transferred to the purchaser when performance has been completed and accepted.
  3. Any delay in acceptance by the purchaser will be governed by statutory regulations. The supplier must explicitly offer to provide its services to the purchaser even if a certain or definable date has been agreed for an action on the part of the purchaser or its cooperation (e.g. provision of material).

  § 7 Termination

  1. The purchaser may withdraw from the contract for cause until the delivery has been handed over.
  2. Cause applies in particular if the purchaser’s interest in having the supplier provide its service no longer applies due to official actions, if insolvency proceedings are initiated with regard to the supplier’s assets or the conditions for doing so are met or the supplier fails to meet its warranty obligations for defects despite the purchaser giving the supplier a suitable deadline in writing for doing so.
  3. If the supplier is responsible for the grounds for withdrawal, it will only have a claim for payment of the services rendered by the time the declaration of withdrawal is received to the extent that the purchaser is able to use them. The purchaser’s claims for compensation will remain unaffected. In particular, the supplier must reimburse the purchaser for any additional costs incurred in connection with the withdrawal.
  4. If the supplier is not responsible for the good cause, it will only receive payment for services rendered until the declaration of withdrawal is received and reimbursement of expenses incurred in vain. The supplier will have no further claims.

  § 8 Prices and Payment Terms

  1. The price quoted in the order is binding. All prices are to be understood as inclusive of the statutory rate of VAT unless it is shown separately. If the supplier lowers its prices in the period between the order and delivery, the price in force on the delivery date will apply.
  2. In the absence of any special agreement, prices for deliveries within Germany will be “free to factory gate” with duty paid, i.e. DAP in accordance with the Incoterms in the version in force when the contract is concluded, including packaging. If the supplier is responsible for installation or assembly, it will bear all the necessary ancillary costs subject to any written agreement to the contrary. In the case of foreign suppliers or deliveries from abroad, the delivery terms will be DDP, “Delivered Duty Paid” in accordance with the Incoterms in the version in force when the contract is concluded.
  3. The preparation of cost estimates, designs, sample deliveries, etc. by the supplier will only be remunerated in accordance with a separate agreement. Otherwise they will be free of charge for the purchaser.
  4. Premiums for transport and breakage insurance can only be charged to the purchaser if this has been explicitly agreed.
  5. Payments will only become due after defined payment dates have been agreed on presentation of a correct invoice from the supplier to the purchaser. Delivery papers, invoices and correspondence that do not include the order details will not be processed by the purchaser and will be returned.
  6. If no payment date has been agreed or a service has been agreed beyond the payment date, payment will be due on acceptance of such service by the purchaser and presentation of a proper invoice from the supplier to the purchaser. The purchaser will not be in arrears until it is presented with a proper invoice.
  7. Payment deadlines start from the time defined but not before receipt of goods and invoice and not before goods/services have been received in full and/or accepted.
  8. Payments will be made subject to recognition of contractual performance.
  9. In addition, if payment dates unrelated to performance have been agreed, the purchaser can refuse payment if a defect is identified until such defect has been remedied. Further rights of the purchaser resulting from the supplier’s defective performance will remain unaffected.

  § 9 Retention of Title and Ownership

  1. Title to the goods supplied will be transferred to the purchaser on payment. The same applies to moulds, models, tools, etc. which are made by the supplier to carry out the order. Such items will become the purchaser’s property through its payment even if they remain in the supplier’s possession. They must be handed over to the purchaser upon request. The supplier will bear the risk for any property of the supplier introduced into the purchaser’s premises.
  2. The purchaser will be entitled to further process the goods on receipt and/or to resell them.
  3. The purchaser rejects all retention of title provisions that exceed simple retention of title; any such provisions require the purchaser’s consent in writing. If property rights, liens or enforcement measures are asserted against the purchaser, the supplier will be liable for any damages and/or costs incurred as a result.
  4. If the supplier receives drawings or special technical instructions from the purchaser for the manufacture of items, such items including all parts and material used for that purpose will become the property of the purchaser on commencement of any processing, blending or combining (further processing) of items, and will be kept safe by the supplier until they are handed over to the purchaser. The supplier will label all items in its possession that are the property of the purchaser. Such items must not be made available to third parties, nor sold or charged to them without the purchaser’s approval in writing.

  § 10 Defective Delivery/Performance

  1. The purchaser’s rights in the event of material or legal defects and other breaches of obligations by the supplier will be governed by statutory provisions. In the event of defects in the contractual performance, the purchaser can choose between asserting its statutory warranty claims within the statutory warranty period or requesting rectification.
  2. If the purchaser makes a covering purchase due to the failure to supply partial performance on time, the covering purchase will also include assignment of the warranty rights for error-free interaction of the partial service with other services which the supplier has already provided or is still to provide.
  3. In accordance with statutory provisions, the supplier will be liable in particular for ensuring that the item delivered does not contain any defects on the transfer of risk that might impair its value or suitability, that it has the agreed or guaranteed properties and is suitable for its intended use in accordance with the contract. Even if the delivery item constitutes a special design, it must be state of the art and must comply with the Equipment Safety Act as well as statutory, trade association and other relevant safety, accident prevention, environmental protection, health and safety and EU rules and regulations. State of the art is the generally recognised state of technology unless the purchaser specifies a technical standard exceeding that of the state of the art. The state of the art reflects the respective German and European standards. The supplier must carry out appropriate quality assurance meeting the latest state of the art and provide evidence of such to the purchaser on request.
  4. With respect to the purchaser’s duty to inspect and give notice of defects, statutory provisions (Secs. 377, 381 of the German Commercial Code – HGB) apply on the following condition: The purchaser will notify the supplier of defects in the delivery item as soon as it is possible to identify such defects in the normal course of business. The deadline for giving notice of defects will be based on the circumstances of the individual case, but for discernible defects it will normally comprise at least 10 working days after their discovery. In urgent cases, if there is no time to wait for the supplier to remedy the defect or if the supplier fails to meet its warranty obligations in spite of a proper request or deadline for rectification or if rectification ultimately fails, the purchaser may have the defects remedied or removed itself and damaged parts replaced or repaired at the supplier’s expense.
  5. The parts rejected under the warranty will remain at the purchaser’s disposal until their replacement and on replacement they become the property of the supplier.
  6. If the supplier has given a guarantee for the delivery item, the purchaser can also assert its claims under the guarantee. This does not apply to defects or damage to the delivery item due to regular wear and tear or improper handling on the part of the purchaser.

  § 11 Recourse against Supplier

  1. The purchaser’s claims for expenses and recourse against the supplier within a supply chain under the law (recourse against supplier pursuant to Secs. 478, 445a, 445b or Secs. 445C, 327 (5), 327u BGB) will be available to the purchaser without restriction in addition to its claims for defects. The supplier will indemnify the purchaser from all third-party liability and warranty claims without restriction provided such claims arise due to deliveries by the supplier.
  2. The purchaser will be entitled, in particular, to request exactly similar subsequent performance from the supplier (rectification or replacement) to that owed by the purchaser to its own customer in each individual case; in the case of goods with digital elements or other digital content, this will also apply with regard to the provision of required updates. The purchaser’s statutory right of choice (Sec. 439 (1) BGB) will not be restricted as a result.
  3. Before the purchaser acknowledges or meets a claim for defect asserted by its customer (including reimbursement of expenses in accordance with Secs. 445A (1), 439 (2)(3)(6) sentence 2, 475 (4) BGB), the purchaser will notify the supplier and request a written statement after a brief description of the case.

  § 12 Manufacturer’s Liability

  1. The supplier will indemnify the purchaser against all claims from non-contractual product liability based on the fact that the supplier’s goods or services were defective. The damages to be compensated to the purchaser also comprise further measures such as public warnings. The purchaser will inform the supplier of such measures without delay.
  2. As part of its obligation of indemnification, the supplier must reimburse expenses pursuant to Secs. 683, 670 BGB resulting from or in connection with third-party claims. Further statutory claims remain unaffected.
  3. The supplier undertakes to maintain an appropriate level of up-to-date business and product liability insurance, currently at least a flat rate of EUR 5 million per policy as annual cover for personal injury, property damage and financial losses and to provide evidence of such to the purchaser on request.

  § 13 Property Rights

  1. The supplier warrants that no third-party property rights (e.g. patents, patent applications, registered designs, industrial designs, copyrights) or third-party trade secrets will be breached by using the contractual delivery.
  2. The contractor will indemnify the purchaser against claims by third parties arising from of any infringements of property rights and will also bear all costs incurred by the purchaser in this connection.

  § 14 Statue of Limitations

  1. Statutory limitation periods will apply unless explicitly agreed otherwise.
  2. In the case of notification of defects, the period will be extended to include the period between notification of the defect and its rectification.
  3. If the delivery item is completely reconditioned, the limitation period will begin again, and in the case of a partial rebuild, this will apply to the new parts. The limitation period will not begin again if the supplier discernibly fails to act in recognition of its warranty obligations.

  § 15 Other Provisions

  1. The supplier must keep all experiences, knowledge and material belonging to the purchaser of which it gains knowledge in connection with the order strictly confidential vis-à-vis third parties. Drawings may not be copied or used in any other way without the purchaser’s approval. It is not permitted to produce items on the basis of the purchaser’s drawings outside the order issued, including for the supplier’s own purposes.
  2. Any mention of the purchaser’s company for advertising purposes, in commercial correspondence, customer lists or other publications is only permitted with the prior permission of the purchaser in writing.
  3. In accepting the order, the supplier issues the purchaser with its agreement to the processing of personal data occurring in connection with the business relationship in the computer centres of the purchaser’s group. The data will be processed in accordance with the provisions of the BDSG (Federal Data Protection Act) and the GDPR (General Data Protection Regulation). Notwithstanding the above, the purchaser accepts no liability for breaches of the aforementioned provisions.
  4. The purchaser will be entitled to statutory rights of set-off and retention. The supplier’s receivables from the purchaser may only be assigned to third parties with its consent. The supplier will only have rights of set-off and retention in the case of legally established claims.

  § 16 Final Provisions

  1. These Terms and Conditions of Purchase and the contractual relationships between the purchaser and the supplier are subject to the law of the Federal Republic of Germany excluding the United Nations’ Convention on Contracts for the International Sale of Goods (CISG).
  2. The place of jurisdiction for all disputes arising from the contractual relationship is the purchaser’s place of business in Bochum.
  3. Should a provision of this contract prove to be invalid, illegal or unenforceable, an amended or limited provision will apply to the extent required to make a valid, legal and enforceable provision. If such an amendment or restriction is not possible, the invalidity of one or more of the present provisions will not affect the validity of the contract. Sec. 139 BGB will be dispensed with.
  4. Should a provision of this contract differ in content due to the different language versions, only the provision in the German version shall prevail.

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Bochum, July 01, 2016