General Terms and Conditions for Orders

§ 1 General Scope

  1. Our General Terms and Conditions for Orders shallapply to the exclusion of all other terms andconditions; any supplier terms and conditions fororders, contrary to ours, shall not be applicable,unless we have expressly consented to theirapplicability in writing. Our Terms and Conditions forOrders shall apply in place of and prevail over anyterms and conditions contained or referred to in anycommunication from the supplier, regardless ofwhether we have unconditionally accepted servicesor delivery from any supplier in the knowledge thatsuch supplier has terms and conditions contrary toor deviating from ours. Other purported terms andconditions which the supplier seeks to impose orincorporate are expressly rejected by us.
  2. Our General Terms and Conditions for Orders shallalso be applicable to any and all future businesswith suppliers.

§ 2 Orders and Order Confirmations

  1. Provided that nothing to the contrary has beenexpressly agreed in writing by us, we shall be boundby our orders for a two week period commencing asof the date of the order.
  2. Where an order confirmation from the supplierdiffers from our underlying order, then we shall bebound only if we have consented to the saiddifference in writing. Our acceptance of supplierservices and deliveries or payments shall notconstitute consent to any such difference.
  3. Changes or supplements to orders shall be effectiveonly if we agree to the changes or supplements inwriting.

§ 3 Service Times, Default Consequences

  1. The effective time of deliveries of goods or servicesor of subsequent performance, shall be the time ofreceipt at the service point specified by us, savethat the effective time of delivery of goods orservices involving set-up or assembly shall be thetime when completion of those goods and servicehas occurred.
  2. The supplier shall have to immediately notify us andobtain our agreement to any material delays indelivery of goods or services. In said event, serviceand delivery times shall be extended only if suchhas been expressly agreed by us in writing.
  3. Should the contractor be in default, then we shallhave the right for each commenced business day ofdelay to claim a contractual penalty in the amount of 0.2%, but up to a maximum of 5% of the total orderamount. Where this contractual penalty is notclaimed at the time of any delivery, service, orsubsequent performance being accepted, then thecontractual penalty shall still be capable of beingclaimed until final payment has been rendered. Thecontractual penalty shall be credited as minimumdamages towards any other claim for damages.

§ 4 Transfer of Risk, Shipping, Place ofPerformance

  1. For services and goods involving set-up orassembly, risk shall be transferred upon acceptanceby us; for deliveries without set-up and assemblyrisk shall be transferred upon receipt thereof at theservice point specified by us.
  2. Unless otherwise agreed in writing by us, shippingand packaging costs shall be borne by the supplier.For pricing ex Works or warehouse of thecontractor, shipping is to be effected on the mostcost-effective terms and conditions, provided thatwe have not stipulated any certain shipping method.Additional costs incurred because shippingrequirements have not been complied with shall be borne by the contractor.

§ 5 Invoices

Invoices are to list our order numbers for eachindividual item. Maturity of compensation shallrequire a reviewable invoice. Duplicate invoicesmust be identified as such. As long as thisinformation is lacking or incomplete, the invoiceshall not be due for payment.

§ 6 Payments

  1. Unless we otherwise agree in writing, we shallrender payment
    • within thirty (30) days of our receipt of theinvoice, subject to deduction of a 3% discountor
    • within sixty (60) days net without any discount.
  2. We shall be unconditionally entitled to set-off andwithholding rights as contemplated under applicablelaw.
  3. We shall have a right to deduct the above discounteven if we reasonably set off or withhold paymentsbecause of defects in the applicable goods orservices. Payment periods shall commence onlyafter defects have been remedied in their entirety.
  4. We shall be in default only if we have not renderedpayment upon receipt of a warning from the suppliereffected after the final date for payment has fallendue.
  5. In no event shall payments constituteacknowledgement that any services or deliveryhas been rendered in a contractually compliantmanner.

§ 7 Receiving Inspections

  1. We shall inspect deliveries of goods immediatelyafter receipt to check whether they comply with theamount and goods ordered. We shall alsoimmediately inspect whether any externallyidentifiable transport damages or defects exist.
  2. Should we identify any defects during theseinspections or at any later time, we shall report suchto the supplier.
  3. Objections can be raised within two weeks ofdelivery of the goods or services or, insofar as thedefect has been noticed only during the handling orprocessing phase or upon the item being used,within two weeks of its having been identified.
  4. We shall not have any other inspection or reportingobligations vis-à-vis the supplier beyond those setforth above.

§ 8 Material Contract Qualities of Services and Deliveries, Supplier Informational Obligations

  1. Systems set up or products delivered by thesupplier must be equipped with any securitymechanisms prescribed therefor and comply with allapplicable security requirements. All applicablerules of the art are to be observed, including, butnot limited to, the applicable EU Directives, Germannational law, the Verband der Elektrotechnik Elektronik Informationstechnik e.V. (Association for Electrical, Electronic & Information Technologies) requirements, DIN and EU norms, and similar rulesand regulations, as they may be amended from timeto time. Products, equipment, and systemsdelivered by the supplier are to bear a CE marker inaccordance with applicable EU requirements andGerman law. Relevant compliance declarations areto be furnished upon delivery.
  2. Moreover, the supplier must supply us with any and all necessary assembly instructions, data sheets, installation instructions, processing notices, storage,operational, and maintenance requirements.
  3. The supplier must inform us in a timely manner ofany changes in materials, production methods,supplier parts, and compliance declarations.
  4. It is a material contractual matter for us that delivered items be free and clear of third partyrights. The supplier must therefore inform us of anyexisting third party protection rights, regardless oftheir nature.

§ 9 Defect Liability

  1. If defects occur before or after risk has beentransferred or within the limitation periodscontemplated under this § 9 items 7 and 8 below,then the supplier shall have to, at our discretion andat its expense, remedy the defects or deliver orrender new items free and clear of any defects. Thisshall also be applicable to deliveries whereinspection had been limited to sample checks. Theforegoing shall not affect § 439 para. 3 BGB(Bürgerliches Gesetzbuch, the Civil Code,hereinafter the “BGB”).
  2. Should the supplier not effect subsequentperformance within a reasonable period of time tobe set by us, then we shall have the right to:
    • withdraw in whole or in part from the contractwithout having to render any compensation ordamages; or
    • (i) demand that the price be reduced or, at theexpense of the contractor, effect (or haveeffected by a third party) the subsequentperformance or replacement delivery ourselves,and (ii) demand that damages be rendered inplace of the defective goods or services.
  3. § 281 para. 2, § 323 para. 2, and § 440 BGB shallremain unaffected.
  4. Applicable statutory law including, but not limited to,§ 437 no. 3 and § 637 BGB shall apply to effectingreplacement items or thecompensation/reimbursement of any expendituresrequisite therefor.
  5. This § 9 shall not affect any other available claims,statutory or otherwise.
  6. Material and legal defect claims (Sach- undRechtsmängelansprüche) shall lapse in three years'time, unless longer periods are provided for by law.
  7. Limitation periods shall commence upon risk beingtransferred. Limitation periods for services or goodsrequiring set-up or assembly shall commence uponacceptance thereof by us.
  8. To the extent the supplier renders a new deliverywithin the parameters of its defect remedyobligations, the periods set forth in this § 9 para. 6 and para. 7 shall re-commence, unless suchpertains to the remedy of a minor defect.

§ 10 Passing on of Orders to Third Parties

Passing on of orders or sub-contracting their supplyto third parties is not permissible without our priorwritten consent having been provided and any suchpassing on of orders or subcontracting shall give usthe right to withdraw from the contract in whole or inpart and to demand damages.

§ 11 Providing of Material

  1. Material provided by us shall remain in ourownership and is, at no cost, to be stored, labeled,and managed separately. The use thereof shall bepermissible solely for the purpose of fulfilling thecontracts awarded by us. Should the supplier beresponsible for or have caused any reduction invalue or loss to such material, then it is to rendercompensation in respect of it, even if the supplier isresponsible for or has committed only slightnegligence. This shall also be applicable in theevent we provide the supplier with contract-relatedmaterial at extra cost.
  2. The processing or reconstituting of any materialprovided by us shall be effected for us. We shalltherefore become the direct owner of the new orreconstituted item. To the extent ownership is nottransferred by law, the supplier hereby transfers tous ownership of any new item created by thesupplier having processed or reconstituted anymaterial provided by us, and we, the client, herebyaccept said transfer. The supplier shall store thenew item at no charge for us with the care anddiligence of a prudent businessman.

§ 12 Tools, Forms, Prototypes, Confidentiality

  1. Tools, forms, prototypes, models, profiles,drawings, print templates, training and instructionmaterials, and the like shall remain in our ownershipand may neither be forwarded to third parties norused for purposes other than the performance ofthe supplier's contract with us without our priorwritten consent. They are to be held secure againstunauthorized review or use. We shall be able todemand at any time that such items be surrenderedto us in the event the supplier breaches saidobligations. The demand for surrender shall notaffect any other claims we are entitled to.
  2. The supplier shall, provided that such information isnot generally or otherwise lawfully known to it, notmake any information accessible to third partieswhich has been provided to the supplier by us.
  3. The supplier must comply with the obligations setforth in this § 12 para. 1 and para. 2 even if theinformation was issued or provided by us to enablethe supplier to provide a quote.
  4. If we have consented to a contract being forwardedor sub-contracted to any third party, then thesupplier shall obligate such third party in writing tocomply with the same obligations as are herespecified mutatis mutandis.
  5. The supplier shall be obligated to (i) hold in strictconfidence any and all confidential informationprovided by the client regardless of whether such isor has been disclosed to the contractor in writing,verbally, or in any other manner including, but notlimited to, such information that is identified asbeing confidential; (ii) use such information solelyfor the purposes of this contract; and (iii) notforward such information to third parties.Notwithstanding any other claims under applicablelaw, this obligation shall terminate by no earlier thanfive years from the ending of the contract.

§ 13 Assignment of Claims

Assignments of claims shall be permissible onlywith our prior written consent.

§ 14 Foreign Trade Legislation

  1. The supplier must comply with any and allrequirements of applicable national customs andforeign trade legislation ("Foreign TradeLegislation"). The supplier must provide us, withoutundue delay and within two weeks of the orderbeing placed, with details of any amendmentsrequired to be made to any and all data andinformation in order to comply with Foreign TradeLegislation for export, import, and re-export: e.g.,export list numbers, statistical goods numbers, orsupplier declarations.
  2. Should the supplier breach its obligations arisingfrom this § 14 para. 1, then it shall be liable for anyand all damages and expenditures caused to us asa result, unless the contractor is not accountable forthe obligation(s) being breached.

§ 15 Separate Notification Obligation for Software, Assembly Parts, and Guidance ElementDeliveries

For deliveries containing software, assembly parts,and guidance elements, the functionality of whichdepends upon software delivered with said items orthe use of which shall have an effect upon softwareor guidance technology used by us, the suppliermust inform us in a timely manner, if it intends toreplace such elements with any other, noncompatiblesoftware version or if it intends toceases production of such assembly parts orguidance elements or to cease trading in them,such that we shall be in a position to order areasonable number of assembly parts and guidanceelements within the parameters of a "last order".This shall apply even if the assembly parts andguidance elements are replaced by successormodels.

§ 16 Contractor Conduct Obligations

  1. The supplier shall be obligated to comply withapplicable law and regulations, as such may beamended from time to time. In particular, it shall,neither actively nor passively, engage in any form ofbribery, violation of basic rights of its employees, orchild labor. It shall also assume responsibility for thehealth and safety of its employees in the workplace, observe environmental protection laws, andrequire of its suppliers that they comply with theserules of conduct to the best of their ability.
  2. Should the supplier culpably breach theseobligations, then we shall, notwithstanding and inaddition to any other claims, have the right towithdraw from or to terminate the contract. Wherethe breach is capable of remedy, said right may beexercised only after a reasonable time period hasexpired without the breach being rectified.

§ 17 Venue, Applicable Law

  1. If the supplier is a merchant (Kaufmann), the venueshall be Berlin, Germany.
  2. German national law shall apply to the exclusion ofthe rules and regulations of private international lawand the UN Convention on Contracts for theInternational Sale of Goods (CISG).

As of: February 2013




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