General Terms and Conditions of Purchase
of SFC Energy AG
Revision: August, 16th, 2011
1. Terms and Conditions, Orders, Conclusion of
Contract
1.1. The following terms and conditions apply
exclusively to all our orders from the supplier, including future suppliers,
regardless of whether or not reference is expressly made again to these purchase
conditions even if we accept the deliveries without reservation in knowledge
about the supplier’s deviating conditions. Supplier terms and conditions are
herewith contradicted. Modifications or supplements are only binding if
confirmed by us in writing.
1.2. Details of quantities expressly communicated
to the supplier as being non-binding merely serve the purpose of ordering and
forward planning and as a basis for price negotiations. They are to be
considered as a non-binding projection without any obligation to take delivery,
which may be changed at any time and without us incurring any expenses. Moreover
details of quantities do not become binding until ordered by us in writing.
1.3. The supplier has to confirm each order immediately. Where the supplier
wishes to deviate from a delivery date or the price of the goods given in the
order, he has to point this out clearly. Only then will a contract be concluded
through a counterconfirmation on our part. If the supplier does not accept the
order within five working days of receipt by means of counter-signature, we are
entitled to cancellation of or withdrawal from the contract without being liable
to pay compensation. This also applies to cases where the ordered goods are
delivered without the supplier’s prior confirmation.
1.4. Explanations given
orally and on the telephone by employees of ours who do not have the right of
representation, as well as subsidiary agreements entered into by same, require
our written confirmation to become effective.
2. Scope of Duty of Performance
2.1. The scope of
the supplier’s duty of performance is derived from the documents handed over by
us such as material specifications, drawings and performance descriptions or,
where these are missing, from the details given in the supplier’s proposals and
brochures.
2.2. All deliveries have to comply with the DIN standards
applicable in each case as well as with the other standards which apply in the
trade, or EU standards where no alternative arrangement is expressly agreed or
put down in writing. The standards and regulations listed as „also applicable
documents” in our material specifications form an integral part of our material
specifications.
3. Dispatch, Customs Declaration and Passage of
Risk
3.1. Subject to another deviating written agreement,
delivery has to be effected free house (as per Incoterms 2000 = „DDU
Brunnthal“).
3.2. If the supplier is based abroad, or if he imports goods
into the Federal Republic of Germany, he is responsible for correctly declaring
the goods, which has to comply with the customs regulations and the Foreign
Trade Law of the Federal Republic of Germany. For all goods which are of
Euro-pean Union origin, he has to issue us with a supplier declaration according
to the EU Directive 1207/2001 or whichever regulations replacing same. The
supplier may also provide us with a long-term supplier declaration with a
validity of one year in each case. The supplier entirely dis-charges us from any
claims from third parties on account of an obligation to make a declaration
having been neglected; the supplier must bear any costs arising as a result of
such neglect.
3.3. The supplier is obliged to indicate our order number on
all shipping documents and delivery notes; should he fail to do so, we are not
responsible for any delays in processing.
4. Prices and Terms of Payment
4.1. Prices quoted
in the order are exclusively fixed prices plus the statutory value added tax
applica-ble in each case. Subject to another deviating written agreement, the
prices include packing charges, delivery cost (including postage and packing),
the cost of the transport insurance as well as any customs and freight charges
which may be incurred.
4.2. Invoices can only be processed if they are
submitted in two copies and show the order number given in the order according
to the prescripts therein; the supplier is responsible for all consequences
which arise as a result of this obligation not being fulfilled.
4.3. Subject
to another deviating written agreement, we shall pay the purchase price within
fourteen (14) days of receiving the complete goods and the invoice with 3 % cash
discount all net within sixty (60) days of delivery and receipt of invoice.
Where delivery is effected before the deadline given in the order or
call-forward notice, the above mentioned time limits do not begin until the
de-livery date given in the order or call-forward notice. We reserve the right
to pay the supplier’s in-voice with discountable bills; we shall bear all the
cost of all fees and expenses which arise in the process.
4.4. We are
entitled to the statutory rights of compensation and retention.
5. Assignment
5.1. Claims against us may only be
assigned with our written consent.
6. Terms of Delivery, Default of Delivery, Date Code and Delivery
Quantities
6.1. Agreed terms of delivery are binding. In the
case of premature delivery we are entitled to deduct any additional charges
which are incurred as a result (e.g. warehouse charges) from the purchase
price.
6.2. The supplier must give immediate notification of any delays in
delivery which become recogniz-able.
6.3. In the case of default of delivery
we are entitled, after the expiration of an additional period of time which we
have granted without result, to claim damages on account of nonperformance, to
re-duce the purchase price or to withdraw from the contract without prejudice to
our other statutory claims.
6.4. In the case of default by the supplier we
have the right to claim lump-sum compensation for each working day’s delay since
the default commenced to the amount of 0.1 %, but not more than 5 %, of the
gross payment for the ordered goods. This does not exclude the raising of a
further claim for damage caused by default. The supplier may prove to us a
smaller damage.
6.5. The date of manufacture (date code) of delivered goods
may not be more than six (6) months before the date of the delivery. We shall
set separate time limits for orders in special cases.
6.6. We are not obliged
to accept goods which are older than six (6) months or over-deliveries or short
deliveries or part deliveries which have not been agreed upon.
6.7. Unless
proven otherwise, the values in respect of number of pieces, weights and
measures which we determine during the inspection of incoming shipments are
decisive.
7. Warranty, Complaints and Liability
7.1. The
supplier guarantees that all performance shall correspond to the latest state of
the art, the decisive material specifications and drawings, the agreed technical
data, the relevant legal provisions, the rules and regulations of authorities,
trade associations and professional organiza-tions.
7.2. We are entitled
unreservedly to the statutory warranty claims.
7.3. Should the subsequent
fulfilment on the part of the supplier come to nothing, we may perform the
necessary measures ourselves, or have them performed by a third party, at the
expense and risk of the supplier and without prejudice to the supplier’s
warranty obligations.
7.4. All claims on account of redhibitory defects as
well as other claims arising from the delivery rela-tion are limited to three
years where no longer statutory period of limitation exists. Where the goods
delivered are resold or used for the manufacture of products, the period of
warranty does not commence for us until the point at which the goods put on
order by the supplier for the purpose of resale are handed over or the point at
which the period of warranty for our product containing the goods concerned
commences vis-à-vis our buyer, but no later than 12 months after the goods have
been delivered to us. In the case of the replacement of the subject-matter of
the contract itself, or parts thereof, in the scope of the subsequent fulfilment
the period of warranty re-commences for the full term.
7.5. We shall
immediately notify the supplier in writing of defects in goods delivered,
transport or pack-ing damage, as soon as these are ascertained in the normal
course of business, but recognizable defects not later than 14 working days
after the goods have been delivered, not recognizable de-fects within 7 working
days of their detection. In this respect the supplier waives the objection of
late complaint. Even 14 working days after the goods have been delivered an
investigation is in time if we are prevented from performing same at an earlier
point on account of important reasons for which we were not answerable. In this
respect, too, the supplier waives the objection of late
complaint.
7.6. Should it be necessary to replace a whole series of
contractual goods on account of a series defect, or products which we have
manufactured incorporating the contractual goods, say because an individual
fault analysis is uneconomical, impossible or inequitable, the supplier shall
also replace the cost of that part of the series affected which has no technical
defects.
7.7. Where one of our products has a defect caused by the supplier,
and where we are sued at law by a third party on account of statutory product
liability prescriptions or producer’s liability, the supplier shall discharge us
from all claims by third parties in this respect. The supplier has to bear all
expenses arising from product or producer’s liability, including any recall
expenses.
8. Quality Management
8.1. Where the supplier
possesses a quality management system which is described in a quality management
manual and at least corresponds to the standard as per DIN EN ISO 9000 et sqq.,
the certification according to this standard has to be proven to us either
through the submission of a QM certificate or the fulfilment of the requirements
of an audit to be carried out by us in his busi-ness (also repeatedly). The
supplier has to check and document the goods which are to delivered to us in
accordance with the rules prescribed by his qualified quality management system
and agreed upon with us as well as add the agreed documents to each delivery.
Further, we have to be provided with the nonrecurring results of the final
manufacturing test required in our material specifications in the form of an
unambiguous documentation.
8.2. Where no certificate exists, a first-time
supplier of goods to us has to fill out our „Self-assessment questionnaire for
suppliers“ prior to the shipment of the first delivery and return it to us with
an au-thentic signature. Should our assessment of the supplier’s self-assessment
yield a negative re-sult, we reserve the right to stop delivery.
8.3. The
supplier shall inform us about modifications to his quality management system
and about modifications to the essential characteristics of the goods we have
ordered in such a timely and comprehensive manner that we can assess the
implications of the modifications and react accordingly.
8.4. Wе rеserve the
right to request the supplier to enter into special quality management
agreements where this is deemed necessary because of particularly demanding
technical deliveries, additional customer requirements or modifications to our
quality management system. We shall immediately inform the supplier of any
ascertained quality deviations.
8.5. Before shipping the goods, the supplier
shall perform the quality tests which we demand, for example, in the material
specifications. The results shall be documented and made available to us at our
request.
8.6. The supplier is obliged to take out business and product
liability insurance where the amount insured is commensurate with the scope of
the business relations and corresponds to the specific liability risk, but is at
least EUR 500,000.- per claim. At our request the existence of insurance to
cover such requirements must be demonstrated.
9. Third Party Industrial Property
Rights
9.1. Since we export throughout the world, the supplier
shall guarantee that his deliveries do not violate any third party rights. When
first requested by us in writing to do so, the supplier is obliged to discharge
us entirely from any claims by third parties on account of the infringement of
their industrial property rights in connection with the supplier’s deliveries.
This discharge obligation applies to all expenses which necessarily arise from,
or in connection with, third party claims for us including legal fees and
charges. Where the supplier so requests, we shall list the countries to which
products containing the delivered goods are supplied.
10. Copyright
10.1. We reserve right of ownership
and copyright in respect of illustrations, specifications, drawings,
calculations and other documents, which are to be used exclusively for the
manufacture of the ordered goods and returned to us unsolicited after the order
has been executed. They may only be passed on to third parties in the event of
subcontract deliveries. The supplier is obliged to commit these third parties to
the obligations of this section in the same way that the supplier is bound
towards us.
11. Place of Discharge, Place of Jurisdiction, Applicable Law,
Miscellaneous
11.1. The supplier may only draw attention to his
business relations with us in his advertising if we have given him our written
consent.
11.2. Sole place of discharge for deliveries and performance is the
address for shipments which we give. Where this is missing, the place of
discharge is our goods receiving department in Brunnthal-Nord.
11.3. Sole
place of discharge for payment commitments is our head office and every place
where we maintain an account with a bank.
11.4. Place of jurisdiction for
all disputes with full merchants, legal persons under public law and persons
without any court of general jurisdiction in the country of residence is Munich.
11.5. The law of the Federal Republic of Germany alone is effective for all
legal relations between the supplier and us excluding the United Nations
Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980
as well as laws of application passed in this context. The latest version of the
Incoterms 2000 applies when interpreting the international goods trade clauses.
12. Supplements for Tools, Material Provided and Workshop
Facilities
12.1. Where the delivery of the goods calls for tooIs
to be manufactured by third parties, the supplier is obliged, before ordering
the tools, to solicit our written approval of the company entrusted with the
design, manufacture, reworking or production of the tools.
12.2. The supplier
shall produce, free of charge for us, at least ten (10) sample parts on the tool
and send these to us for quality inspection and the release of the tool.
12.3. Where we have borne all the production costs for a tool, the supplier
transfers ownership of the tool to us at the point at which he himself acquires
ownership. The same applies to quasi-ownership rights (e.g. rights in course of
acquisition). The supplier shall keep the tools for us as ownership
intermediary. The supplier shall treat the tools with the requisite care and
have the tools properly serviced or replace necessary parts at his own expense.
We have the right to inspect the tools at the supplier’s premises during normal
working hours. Should we demand the tools to be handed over – which we are
entitled to do at any time – the supplier has no right of lien with regard to
the tools.
12.4. Where we have borne part of the production costs for the
tool, the supplier transfers ownership of the tool to us in proportion to the
production costs which we have borne. The transfer of ownership takes place at
the point at which the supplier himself acquires ownership. For his part
ownership the supplier grants us an irrevocable purchase option which may be
exercised any time up to 4 weeks after the last goods which we have ordered and
which have been manufactured with the tool have been delivered to us. When first
requested to do so, the supplier shall sell, deliver and transfer his part
ownership of the tool to us against payment of a purchase price amounting to the
difference between the prorated manufacturing and original cost borne by the
supplier less the claimed depreciation for wear and tear in accordance with the
average useful life. The supplier has no right of lien with regard to the
tools.
12.5. The supplier is liable for the destruction, the loss, the
deterioration or damaging of the tools to the extent that he is answerable for
same. Further, the provisions stated under No. 7 apply analo-gously to the tools
whose ownership has been transferred to us.
12.6. Where we do not bear all
or part of the manufacturing or original cost of tools, the supplier is obliged
to keep the tools in good working order and have the tools properly serviced or
replace necessary parts at his own expense. We have the right to inspect the
tools at the supplier’s prem-ises during normal working hours. For tools which
have been manufactured exclusively as a result of an order placed by us, the
supplier grants us an irrevocable purchase option which may be exercised any
time up to 4 weeks after the last goods which we have ordered and which have
been manufactured with the tool have been delivered to us. The purchase price
corresponds to the original and manufacturing cost less claimed depreciation for
wear and tear. The supplier has no right of lien with regard to the tools.
12.7. If the supplier uses tools both for our orders and for orders placed
by other customers or buyers, the products made with these tools shall not carry
any of our logos, trademarks, brand names or serial numbers. When advertising
his business or his products, the supplier shall not disclose that the products
he has manufactured are similar or identical to those which we
employ.
12.8. Material and workshop facilities which we provide to the
supplier may not be passed on to third parties without our approval. The goods
manufactured with this material or workshop facilities may only be supplied to
us. The same applies to tools whose manufacturing cost we have entirely or
partly borne as per agreement.
12.9. Material and workshop facilities which
we provide to the supplier remain our ownership. Where material and workshop
facilities are not processed, they should be marked with our name and kept
separately by the supplier before and after processing or usage. They may only
be used for the purpose for which they were intended.
12.10. Should the goods
provided by us show any damage which exceeds normal wear and tear, the supplier
is liable for same. It is incumbent on the supplier to prove that he is not
responsible for the damage arising.
