General Terms of Purchase and External Service of Gino AG Elektrotechnische Fabrik

Transcription

1 General Terms of Purchase and External Service of Gino AG Elektrotechnische Fabrik As of September 2017 (changed 10.2; 10.3 removed) I General 1. General Conditions 1.1 These conditions apply for all products and services which we, GINO AG Elektrotechnische Fabrik (henceforth GINO), purchase from the contractee (in particular purchase, work, and service contracts). They apply exclusively. Conflicting or deviating conditions will not be recognized. We do not recognize conflicting conditions even if we do not explicitly object or if we refer to correspondence from our contract partner referring to such conditions. 1.2 Our conditions also apply to all future transactions with the contractor, even if they are not explicitly mentioned again. 2. Offer, Completeness 2.1 The contractor's offer must always strictly adhere to the enquiry. Deviations must be mentioned explicitly. 2.2 Offers are to be made free of charge and constitute no obligations for us. 2.3 The contractor guarantees that the service offered to fulfil the contractual purpose is complete and expedient. 3. Order 3.1 Orders, agreements, and additions require written confirmation. 3.2 Failure of the contractor to object to our orders or possible additions or changes within five days constitutes a confirmation of the orders or changes. 4. Prices, invoices, packaging, and terms of payment 4.1 The prices listed in the order are binding. 4.2 Pricing is always done without including value added tax. Prices are fixed and include packaging and carriage to the named destination. Packaging will only be reimbursed up explicit agreement. 4.3 The contractor agrees to use only packaging (transport, outer-, and sales packaging) that fulfils the principles and goals of the regulation for avoiding packaging waste in its current form. Generally, the products to be delivered are to be packaged securely and protected against damage during transport. The contractor chooses a method of shipment corresponding to the product's requirements in his own responsibility. He is liable for damage resulting from incomplete and/or improper packaging. Packaging will be disposed of at the expense and risk of the contractor unless otherwise agreed. 4.4 If special requirements for shipment and logistics exist, these will be indicated explicitly in inquiries/orders. 4.5 Unless otherwise agreed, we pay invoices at the beginning of the period of payment defined under 4.6, 14 days 2%/60 days net. 4.6 The period of payment begins after complete delivery free of faults and the receipt of the orderly invoice documents. 4.7 We are legally entitled to set-off rights and rights of retention. September 2017 page 1 of 7

2 5. Time of performance and changes in performance 5.1 The periods of delivery and performance or release dates stipulated in the order are firm and are free place of receipt. 5.2 For prerequisites and for legal consequences of delay, legal requirements apply, and a formal reminder is not necessary. 5.3 The contractor will inform us as soon as he has reason to believe that he will be unable to comply with the delivery date; the message will include reason and expected length of delay; if the contractor violates this obligation, he may not present the problem as a mitigating circumstance. 5.4 The contractor agrees to inform us immediately of any changes in the product or in the production process within the duration of the order. Only after examination and written approval by us or our customer may goods be delivered on request, with special identification. 5.5 If the contractor wants to deliver goods which do not exactly match the specifications in the order (e.g. defective products), he must inform us immediately. These products can only be delivered after examination and written approval by us or our customer upon request, with special identification. 5.6 If the contractor suffers a reasonable delay, we are entitled to exact a contractual penalty of 0.2 % of the order value (net) per workday as minimum damage to a maximum of 5 % of order value. The contractor has the right to prove that due to the delay no or substantially less damage has occurred. We are entitled to reserve the contractual penalty until final payment. 5.7 Further-reaching claims remain intact and we retain rights to them as stipulated by law. 5.8 We are entitled to require changes in performance to a reasonable degree after contract formation. The contractor will inform us within ten days of any changes in delivery times or price caused thereby. 6. Confidentiality, advertising, documents 6.1 Design drawings, plans, paperwork, models, electronic data storage devices, drawings, and similar company documents that are made available to the contractor as a part of an enquiry/a commission remain our property and are always to be treated as confidential. They may not be made available to a third party without our consent. 6.2 The contractor agrees to strict non-disclosure regarding all other information that comes to his attention in the course of his work for us. 6.3 He agrees to impose these requirements on his personnel and his subcontractors as well. 6.4 On demand as well as upon completion of the commission, the documents, transcriptions, and copies are to be delivered to us or destroyed in a verifiable manner. The contractor must submit all records, documents, and files that are relevant to the service, unasked, by the time he completes it. 6.5 Advertising that uses our name as reference and the like are only permissible with our prior consent. 6.6 If the presentation of documentation or the like is agreed upon in the course of the commission, the contractor will submit it as soon as possible, but no later than upon delivery of the products or performance of the service. 6.7 In case of a breach of these obligations, the contractor is liable to us to the full extent stipulated in legal regulations. 7. Place of performance, legal venue, applicable law, language of contract, insurance, and distribution of the burden of proof 7.1 Place of performance for all our responsibilities (particularly for our payments) is the receiving office we have determined; otherwise, our registered office. 7.2 Legal venue is our registered office, as long as the contractor is also a businessman, a legal entity under public law, or special fund under public law. The same applies for those who have no general domestic legal venue or who take up their registered office abroad after formation of the contract. We are entitled to take proceedings against them in other legal venues as well. September 2017 page 2 of 7

3 7.3 With regard to all the claims and rights in this contract, the non-standardised law of the Federal Republic of Germany (BGB, HGB) shall apply. The UN Convention on Contracts for the International Sale of Goods (CISG) shall explicitly not apply. Contract language is German. 7.4 The contractor must carry (liability) insurance sufficient for damage caused by his services, staff, and/or his subcontractors at his own expense, the existence of which must be verified at our request. Furthermore, the contractor must, to the extent reasonable, carry sufficient transport insurance at his own expense. 7.5 The legal or judicial distribution of the burden of proof is not changed by any of the provisions agreed on in these conditions. 8. Contract duration 8.1 The contract duration will be stipulated individually by the parties. 8.2 The right to extraordinary termination for good cause remains unchanged. We have the right to an extraordinary termination or cancellation of the contract in the following cases in particular: Significant deterioration of the contractor's financial situation which he fails to resolve or remove within an appropriate period by providing sufficient securities or by performing concurrently, insolvency or excessive indebtedness of the contractor, a filing for insolvency by the contractor, the opening of insolvency proceedings concerning the assets of the contractor or rejection of insolvency proceedings for lack of assets. 9. Separability clause 9.1 Changes in the contract can only take effect in written form and with our consent. 9.2 If some of these regulations or conditions are completely or partially void or invalid, the other conditions remain unaffected. The contracting partners agree to abide by regulations through which the economic spirit and purpose of the invalid provision can be achieved to a large extent. 9.3 We will use any data provided by the contractor exclusively for business purposes and according to the provisions of the data protection regulations currently in force. September 2017 page 3 of 7

4 II Special section 10. Requirements of the quality management system 10.1 The contractor should, at a minimum, be certified according to the DIN EN ISO Gino reserves the right to be appraised about the level of completion of quality management, and ability to supply, by means of a contractor audit. 11. Acceptance and complaints, inspections, and audits 11.1 Necessary acceptance of designs, initial samples, (special) processes/production methods and/or equipment will be requested individually and must always be formally transmitted by us or our customers. Merely starting up or using products (especially during test runs, etc.) does not constitute acceptance We are not legally required to perform inspections for or accept complaints about non-obvious defects as outlined in 377 HGB. We agree to perform minimum checks on the basis of the delivery note and for transport damage; the contractor agrees to inspect the goods and conclude a quality assurance agreement with us if necessary If there is no quality assurance agreement or if there are obvious defects, our complaints will be considered timely if submitted to the contractor within seven working days (Saturdays excluded) after receipt of goods or after detection in the case of hidden defects. Should the immediate period outlined in 377 HGB be longer than seven working days, this longer period applies We are always entitled to carry out reasonable inspections of the contractor s services, either ourselves or through third parties (GINO AG customers/controlling authorities, etc.). Upon request, the contractor agrees to allow us access to his business premises or places of execution and to all records relevant to the order. He will provide us all reasonable assistance (particularly that of expert personnel). Controls and checks do not constitute any decrease under law and therefore relieve the contractor of none of his contractual obligations. We retain the right, upon request, to audit the contractor ourselves or through third parties in order to establish the state of the quality management system. The contractor agrees to take appropriate measures to remove any deviations identified and to comply with suggestions. 12. Warranty of purchase and service contracts 12.1 The contractor guarantees that deliveries and services are free of flaws that aversely affect their value or usage and that they reflect the current level of technology, the terms stated in the order, other guaranteed properties, the most recent governmental regulations, the relevant legal and safety regulations, and the usual accident-prevention regulations We reserve the right to demand, at our option, reshipment or correction of the flaw (supplementary performance) and a reduction in price or termination of the contract if the supplementary performance fails; if the contractor defaults on his fault correction or if waiting for such correction would be unreasonable for us due to the threat of unusually severe damage, we are entitled to rectify the flaw ourselves or employ third parties to do so at the expense of the contractor. Further claims remain unaffected All costs that arise from warranty obligations, in particular diagnostic expenses, dismantling, installation, travelling, freights, packaging, insurance, customs duties and other public duties, inspections and technical acceptance shall be borne by the contractor Should the deliveries or services be partially defective, we are entitled to make use of the abovementioned rights either for the entire order or parts thereof. September 2017 page 4 of 7

5 12.5 In the case of a claim, the warranty is extended by the period between the stating of the claim and its correction. Should the deliverable be partially or fully replaced, or the services re-performed, the warranty for the part in question restarts The contractor will provide a guarantee for the period of 24 months after delivery or acceptance, but not less than the time required by law. The statute of limitations is suspended while we negotiate the warranty claim with the contractor. If the deliverable is repaired or redelivered in the course of supplementary performance, the warranty restarts. 13. Intellectual property, trademark rights 13.1 We are entitled to all user rights, exclusively and at no additional cost, which are related to contractual services by the contract of the contractor, particularly regarding invention and improvement. The same applies to exploitation rights. Potential patents and license rights are to be transferred to us upon request The contractor is responsible for ensuring that the rights of third parties are not violated in connection with his delivery. If third parties make us the target of litigation in this connection, the contractor agrees to indemnify us. The indemnification will follow the initial request. We are not entitled to make any agreement (particularly a settlement) with the third party without the consent of the contractor. This indemnity obligation relates to all expenditures that become necessary because of or in relation to the claims of a third party. The statute of limitations for these claims is ten years and begins with the formation of the contract. 14. Recourse 14.1 If we become the object of product liability or other liability litigation because of a defect in the goods or services delivered by the contractor, the contractor agrees to indemnify us to the extent that he is responsible for the defect and he himself is liable in the external relationship. The release will follow the initial request In this context, the contractor agrees to reimburse any expenses according to 663, 670 BGB or 830, 840, 426 BGB that result from or arise in connection with a recall action. To the extent possible and reasonable, we will inform the contractor immediately about the content and extent of the action. The right to make further claims is reserved If we become the object of other litigation because of a defect in goods delivered by the contractor, we reserve all rights of recourse against the contractor according to 478 BGB; the only exception is when he previously grants us compensation equal to the recourse value. September 2017 page 5 of 7

6 15. Other contractor liabilities (for any contract type) The contractor is liable according to the relevant legal requirements where no other agreement is made for individual cases. 16. Contractee liability 16.1 Claims of the contractor, irrespective of their legal basis (particularly claims arising from the violation of contractual primary and collateral duties, reimbursement of expenses, tortious acts, and other tort liabilities) are excluded. The same applies to contractor claims arising from the violation of precontractual obligations We are liable according to legal regulations as far as we or our vicarious agents or legal representatives violate our obligations deliberately or in gross negligence; the statutory regulations remain valid if we culpably violate a major contract obligation (cardinal obligation); as long as we are not guilty of malice, our remaining liability for damages is limited to damages which are typically foreseeable by the contract. We shall also be liable if, according to legal provisions, we can be charged with causing injury to life, body, or health. The same holds true for the assumption of a guarantee and the pledge of a feature if a defect covered thereby activates our liability In the event of reimbursement of expenses, the above shall apply. A reversal of the burden of proof is not intended. 17. Supply 17.1 To the extent that we or our customer supply parts to the contractor, we reserve the right to ownership. Supplies remain our property and are to be stored separately and clearly identified as our property. They may only be used for the fulfilment of our orders. Decline in value or loss is to be promptly reported in written form, and damages are to be paid The reservation of ownership also refers to products which have been developed by reprocessing or re-formatting our goods, at their full value, and those processes operate to our advantage so that we are considered the manufacturer. If the ownership rights of third parties remain in existence during the processing or conversion with their goods, we shall acquire joint ownership in relation to the objective value of these goods. If our components are mixed or connected with other objects, we shall also acquire co-ownership thereof in the aforementioned proportion. If operation occurs in a manner that results in the contractors item being seen as main item, the contractor agrees to transfer coownership to us on a pro-rata basis. The contractor will store our property with sufficient customary care If the estimated value of our security rights exceeds the value of the secured claims by more than 50%, the excess security rights will become free. The securities released shall be at our discretion. This release rule only takes effect if the contractor has a right to voluntary conveyance. 18. Contractor reservation of title Unless otherwise agreed in individual cases, contractor deliveries will be accomplished without reservation of title. The contractor will, without being asked, report the rights of any third parties to goods he is to deliver. September 2017 page 6 of 7

7 III Supplementary provisions for the employment of contractor personnel and of subcontractors These supplementary provisions are valid during operations or services implemented by the contractor (with his own or other personnel) which should not be legally classified as performance of labour. 19. Personnel of the principal 19.1 The principal guarantees: that he will employ only competent personnel, that the number of the personnel used is adequate to the fulfilment of the contractual purpose The principal keeps us indemnified of all claims of third parties arising from the employment of his personnel. 20. Subcontractors 20.1 The contractor has the right to employ subcontractors subsequent to our approval In doing this, he ensures that all our requirements of him contained in the purchase documents will also be forwarded to the subcontractors, that he only employs subcontractors with staff competent to the task, that these subcontractors are subject to the same contractual requirements as the contractor is to us Even with our approval to commission subcontractors, the contractor is fully liable for them. Subcontractors are vicarious agents of the contractor The contractor indemnifies us of all claims of third parties which can be ascribed to the employment of subcontractors. 21. Plant provisions, public duties The contractor and his staff or his subcontractors are subject to our plant provisions/safety instructions. We will be happy to make these provisions available upon request Any public regulations (e.g. industrial safety instructions) applying to the place of performance are to be observed during the performance of services by the staff or the subcontractors of the contractor. September 2017 page 7 of 7