Purchase Conditions Import
1. Placing of Orders
1.1 Â Â Purchases will be initiated by formal purchase orders of the Purchaser. Such purchase orders shall be exclusively governed by the following terms and conditions of purchase, General terms and conditions of the Supplier which are inconsistent therewith shall be without effect in respect of the Purchaser.
1.2 Purchase orders which are made orally need to be confirmed in writing in order to become effective. The Supplier shall confirm purchase orders within eight working days by undersigned copy of the purchase order (order confirmation).
Purchase orders transmitted via electronical data communication shall be confirmed immediately, latest within two workings days.
Purchase orders are only binding if they indicate the department of the Purchaser that initiated the order and the authorising persons. Purchase orders can be revoked until the Purchaser receives an order confirmation. Order confirmations have to be made in writing. The same shall apply to order modifications.
2. Object of Purchase
2.1 The specification of the goods purchased shall be exclusively taken from the purchase order. Any variance in the order confirmation needs to be expressly reconfirmed by the Purchaser.
2.2 The Supplier shall deliver the goods with such accessories and provide such instruction material reasonably required for their ordinary use. The Supplier shall add a bill of delivery to the goods. Each sending or position has to be marked with the Purchaser’s material number.
2.3 The Supplier shall procure for each of the goods ordered a certificate of origin whether requested by the Purchaser or not. Certificates of origin shall comply with EU preferential treaties. The Supplier shall also be responsible for compliance of the goods with regulatory requirements applying in the country of destination.
3. Delivery, Carriage, Acceptance
3.1 Delivery shall be effected Cost Insurance Freight (CIF) Rosenfeld, Germany, Incoterms 2010 (ICC), unless the purchase order states another delivery address or another delivery term.
3.2 The Supplier shall procure the export and import licenses and any other official approvals or consents, and shall perform any customs clearance require for the export and import of the goods and, where applicable, for their transit through a third country.
3.3 The Supplier is not allowed to delay delivery until payment of the purchase price or until satisfaction of any other claim against the Purchase, unless such claims have been approved by the Purchase or awarded by final judgment rendered by a court of competent jurisdiction.
3.4 Delivery shall be effected within the delivery time stated in the purchase order unless the Purchaser expressly agrees otherwise. If the delivery time is expressly fixed, failure to effect delivery on such time shall constitute a fundamental breach of contract. In other cases late delivery shall constitute a fundamental breach if it is not effected within 1 week after delivery had become due.
Where according to the purchase order delivery is subject to being requested by the Purchaser the delivery shall be effected within 1 week after communication of the request. Unless provided otherwise in the purchase order the Purchaser may request delivery within 6 months from the time since the Supplier had to be ready for delivery. Failure to request delivery within such period of time does not amount to a fundamental breach.
The Supplier shall inform the Purchaser immediately about possible delay in delivery. The Purchaser’s rights due to the a.m. regulations remain unaffected.
3.5 The Supplier has to compensate for damages due to incorrect marking of sending or position.
Late payments due to incorrect marking of material do not cause the Purchaser’s delay. Purchaser shall maintain entitled to take a cash discount.
It is not possible to receive products and bar stock without valid material certificate.
3.6 Part delivery is subject to prior approval by the Purchaser.
3.7 The risk of damages to or loss of the goods shall not pass until the Purchaser takes over the goods, unless the Purchaser commits a fundamental breach of contract by failing to take over the goods within a reasonable additional period to be fixed by the Supplier in writing after the time of delivery has elapsed.
3.8 The Purchaser is allowed to return packaging material for the goods at the expense and risk of the Supplier.
4. Price, Payment Conditions
4.1 The purchase price shall be determined in accordance with the purchase order and shall be understood Cost Insurance Freight (CIF) Rosenfeld, Germany, Incoterms 2010 (ICC), unless provided otherwise. The purchase price shall be inclusive of all costs of delivery and packaging unless the agreed delivery term indicates otherwise. A reasonable price shall apply if the purchase order does not indicate the price or if an agreement on the price is not reached for other reasons.
4.2 Following delivery the Supplier shall issue an invoice in accordance with the purchase order and these conditions of purchase. The invoice shall indicate the order number. The Purchaser shall arrange for payment within 30 days from receipt of properly issued invoice, unless provided otherwise on the purchase order. The Purchaser is allowed to take a cash discount of 3 per cent of the purchase price if payment is effected before due data. The Purchaser is allowed to effect payment in EURO currency applying the official exchange rate at his place of business on the day of payment notwithstanding whether the price is expressed in the purchase order in any other currency.
4.3 The Supplier is not allowed to declare the contract avoided for non payment of the purchase price, unless the Purchaser does not perform his obligation to pay the purchase price within an additional period of at least 2 weeks to be fixed by the Supplier in writing after expiry of the payment time and after having demanded payment in writing.
4.4 The Purchaser is entitled fully to the legal rights of offset and retention. The Purchaser has the right to assign all the rights of the purchase contract without the Supplier’s acceptance.
The Supplier shall not be entitled to assign any right without the Purchaser’s prior acceptance.
5. Conformity of the Goods
5.1 The Supplier guarantees and warrents for a period of two years from the date of delivery that the goods conform to
- the agreed specifications, esp. the respective quality agreement,
- the valid legal provisions,
- the technical regulations,
and that they are fit for the purpose as can be derived from the purchase order.
5.2 Non-conformity of the goods to an agreed specification shall constitute a fundamental breach of contract. The same shall apply if the goods do not comply with the regulations existing in the country of destination.
5.3 The Purchaser may require replacement of defective goods instead of repair notwithstanding whether a lack of conformity amounts to a fundamental breach of contract. Other remedies shall remain unaffected thereby. The Purchaser may exercise a right to declare a contract avoided for an indefinite period of time.
5.4 The Purchaser is required to give notice of lack of conformity of the goods only to the extent that such lack of conformity is apparent and the Supplier could not have discovered such despite thorough quality controls. The Purchaser does not otherwise lose the right to rely on a lack of conformity of the goods, whether or not he inspects the good or gives notice of a lack of conformity.
5.5 The Supplier shall indemnify the Purchaser of third party’s claims in case such third party claims against the Purchaser due to defects of material delivered by the Supplier.
In case the Purchaser provides with material for commission processing, the Purchaser shall only be responsible due to legal provisions. Limitation of the Supplier’s liability or of the person obliged to fulfil the contract for work is being contradicted herewith.
6. Impediment to Performance, Insolvency, Bankruptcy
6.1 To the extent that the Purchaser is not liable for a failure to perform any of his obligations because failure was due to an impediment beyond his control the Supplier may not claim damages nor exercise any other remedy.
6.2 If the Supplier stops or suspends payments, or if a petition to commence an insolvency proceeding is filed or equivalent proceedings provided by the laws applying to his business are initiated, the Purchaser may declare the contract avoided in whole or to the extent performance is outstanding without giving prior notice and without preventing him from exercising any other remedy.
7. Deficiency in Proprietorship
7.1 The Supplier guarantees that goods delivered are free from any right or claim of a third party based on industrial property or other intellectual property rights existing in the country of destination. If the country of destination is not declared otherwise in the purchase order it shall be indentified with the delivery address stated therein. The Supplier may not deny liability because the Purchaser knew about the existence of rights or claims of a third party in the country of destination.
7.2 In the event that rights based on industrial property or other intellectual property are claimed against the purchaser or if any other deficiency in proprietorship in the goods becomes apparent, the Purchaser shall not loose remedies available to him if he does not give notice to the Supplier.
8. Reservation of Title
8.1 The Purchaser acknowledges a retention of title by the Supplier until payment of the goods. The Purchaser shall, however, be entitled to dispose of the goods in the ordinary course of his business. The Supplier shall not be entitled to require a return of the goods or to avoid a resale or processing of the goods, unless he has rightfully declared the contract avoided and the Purchaser has obtained knowledge of such declaration.
8.2 Any components or tools of the Purchaser provided to the Supplier for the performance on order shall remain the property of the Purchaser. The Supplier shall take any measures necessary to secure the property of the Purchaser – or to procure equivalent security rights in the country of his place of business and in any different country of destination – and he shall provide related evidence whenever requested by the Purchaser. The Purchaser is entitled to require at any time a return of the goods and tools made available to the Supplier once they are not required any more for the performance of an order placed by the Purchaser.
The Purchaser shall retain all property rights and copyrights, including the exclusive usage rights, in all his documents (e.g. offers, specifications, construction designs etc.) as well as in any production tools provided by the Purchaser (e.g. models, samples, tools etc.). These may not be copied, duplicated or provided to third parties without the prior explicit written consent of the Purchaser, nor may they be commercialised or used beyond the business relationship with the Purchaser - in particular with regard to delivery to third parties. They shall be returned immediately either by request or upon non-validation of the Agreement, together with any produced copies, to the Purchaser. Moreover, the documents and articles must be stored in a safe and secure place for at least ten years at the expense of the Supplier.
9. Avoidance of Contract
9.1 The Purchaser may exercise a right to avoid a contract notwithstanding an offer or notice of the Supplier to remedy a failure to perform his obligations, unless the Purchaser has expressly consented to such late performance.
9.2 In the event that the Purchaser has exercised a right to avoid a contract he shall be entitled to recover as damages the difference between the contract price and the market price at the time of the avoidance without prejudice to any right to claim further damages. The Purchaser shall be entitled to interest of 8 per cent points above the official base rate applicable at his place of business in his payment claims resulting from an avoidance of contract without prejudice to any other remedy available to him.
10. Undertaking to Co-operate
10.1 The parties mutually undertake to take whatever means necessary to achieve the purpose of purchase order placed by the Purchaser and to refrain from any adverse activities.
10.2 The Supplier shall check all material which the Supplier has produced and/or delivered independent of the Purchaser’s examination.
The Supplier is obliged to maintain a liability insurance (amount insured: min. 3 Mio. EURO). In case the Purchaser asks for proof of the insurance the Supplier will provide such evidence immediately.
The a.m. liability insurance shall not disburden the Supplier concerning claims exceeding the amount insured.
In case of insolvency of the Supplier, § 110 of the German Insurance Contract Act shall apply.
11. Liability of the Purchaser
Any liability of the Purchaser shall be excluded unless it results from a fundamental breach of contract. Any liability of the Purchaser not resulting from the contractual relationship with the Supplier shall remain unaffected.
12. Miscellaneous
12.1 Communications to the Purchaser shall only be observed if made in writing and in German or English language. Communications may be transmitted by fax or by electronic means. They become effective at the time when they reach the recipient or would have reached him under normal circumstances with the means of transmission used. Communications reaching the Purchaser on Saturday or Sunday or on an official holiday at the place of his business shall become effective on the text following working day. Communications which are not required to reach the recipient shall become effective not later than 3 days after being dispatched.
12.2 If individual terms of a purchaser order placed on the basis of these Purchaser Conditions are invalid or unenforceable this shall be without prejudice to the validity of other terms. In such event the parties shall replace the invalid or unenforceable term by a valid and enforceable term which will meet the purpose of the invalid or unenforceable term as closely as possible.
13. Applicable Law, Jurisdiction
13.1 Any contract resulting from the business relationship between the Supplier and the Purchaser shall be governed by the United Nations Convention on the International Sale of Goods (CISG). Questions concerning matters which are not governed by the Convention, or which can not be settled in conformity with general principles, on which it is based, shall be settled in conformity with the laws applicable at the place of business of the Purchaser which placed the respective purchase order.
13.2 Any disputes arising out of or in connection with purchase orders shall be finally settled by the courts having jurisdiction for the corporate headquarters of the Purchaser.
The Purchaser shall have the right to bring a claim before a court at the Supplier’s principal place of business or at Purchaser’s discretion before any other court being competent according to any national or international law.
