General Purchasing Terms and Conditions of Deharde GmbH
§1 Scope of Application
(1) These purchasing terms and conditions apply to all purchase, work, and other performance contracts between Deharde GmbH (hereinafter: "Deharde" or "we") as purchaser / customer and the Supplier (hereinafter "Supplier" or "he") as seller / contractor / performance provider.
(2) Our offers and acceptances are made solely on the basis of these purchasing terms and conditions. By concluding the contract, at the latest on the delivery / performance of the order, the Supplier accepts and acknowledges to be validly bound by these purchasing terms and conditions. Unless otherwise agreed in writing, these purchasing terms and conditions apply exclusively. We do not accept divergent general business terms and conditions of the Supplier even if in the individual case we do not specifically object to them, unless we have expressly and in writing approved their validity. Our purchasing terms and conditions apply exclusively, even if we accept delivery / performance from the Supplier without any reservation despite knowing the Supplier to have contrary or divergent terms and conditions. These purchasing terms and conditions shall also apply to any future transactions with the Supplier, irrespective of whether we refer to them again or not; they remain effective until we replace them by new terms and conditions, in particular by way of sending these to the Supplier.
(3) Specific agreements made in individual cases take precedence over these purchasing terms and conditions. Differing agreements, changes in contract conditions, additions, and ancillary agreements shall be made in writing for evidentiary purposes. Subject to evidence to the contrary, the written agreement or our written confirmation shall be authoritative regarding the existence and the content of differing agreements.
(4) Legally relevant declarations and notices of the Supplier must be in written form. More stringent formal requirements under legal provisions or agreed-upon in individual contracts shall remain unaffected.
(5) References to the validity of provisions of law have clarifying significance only. Legal provisions apply even without corresponding clarification, unless they are directly changed in, or expressly excluded by, these purchasing terms and conditions or elsewhere by agreement between us and the Supplier.
§ 2 Order, conclusion of contract, and confirmation of order
(1) Drafts, offers, cost proposals, the submitting of samples, etc., must be prepared for us at no charge and without any other obligation on our side. This applies even if we do not place an order.
(2) In cases of doubt, our enquiries to the Supplier are merely requests for the submitting of contract offers, unless a legally binding nature of our enquiry as a contractual offer is clearly evident. We have no obligation to uphold contractual offers made by us, i.e. we are entitled to revoke them at any time until declaration of acceptance by the Supplier. Offers made by us expire if they are not accepted by the Supplier in writing within ten days unless stipulated otherwise in the order.
(3) Offers by the Supplier are irrevocably binding unless they are expressly designated non-binding. In case of doubt, the Supplier is bound by his offer for three months, unless a different period is specified.
(4) If we can expect acceptance of our offer, particularly if our order is made in the context of an ongoing business relationship, after consensual preliminary negotiations, or on the basis of price lists or other documentation of the Supplier, the Supplier is obligated to expressly reject our offer in writing within three business days. Otherwise our order shall be deemed accepted by the Supplier.
(5) The Supplier’s offer shall comply with our enquiry / call for tenders. If a statement of acceptance or a letter of confirmation of the Supplier contains deviations from, or additions to, our enquiry / call for tenders / order, this must be clearly pointed out by the Supplier. Such deviations are only valid if confirmed by us in writing.
(6) All letters, order confirmations, shipping documents and invoices must contain the order numbers, order positions, article and commission numbers, inventory numbers and, where related to letters from us, the reference numbers and dates of those.
§ 3 Subsequent contract changes
(1) Subsequent changes that we desire regarding specifications or volumes of orders must be accepted by the Supplier provided they are reasonable for the Supplier and can be performed. If they lead to additional costs or deadline overruns compared to the original order, the Supplier must inform Deharde of these implications without undue delay and before commencing the pertinent work. If the Supplier fails to do so, the changes desired by us are deemed accepted by the Supplier at no change to price and timeline. If the Supplier informs us that the changes desired by us lead to additional costs or deadline overruns, he must present a binding offer of contract change under reasonable conditions within five business days after receipt of the change desire.
(2) The Supplier’s change offer requires explicit acceptance by us. If the Supplier executes the desired changes in the absence of such acceptance, no increased payment shall be owed by us for the execution of the desired changes. If we accept the Supplier’s change offer, the changes shall become part of the contract, provided, however, that such acceptance by Deharde is always subject to subsequent examination of the Supplier’s offer for appropriateness of terms. The acceptance of the Supplier’s change offer does not yet constitute an approval of the appropriateness of the terms, nor does it yet constitute a waiver of any claims for inappropriateness of terms. All claims and rights arising out of violation of the Supplier’s obligation pursuant to paragraph 1 to provide a change offer on reasonable terms and conditions, shall continue to be held by Deharde, notwithstanding unrestricted acceptance by Deharde.
(3) If we do not accept the Supplier’s change offer, performance of the contract is to be continued without change.
(4) During an ongoing change of contract procedure according to the foregoing provisions, the Supplier shall continue to carry out the contract as it is, unless we demand the Supplier in writing to halt or limit performance until a decision on the change will have been made. However, where such temporary continuation means that works or services will be rendered which would become useless as a result of agreement on the change, the Supplier shall point this out in writing to us without undue delay.
§ 4 Performance of order, Quality, Quality control and documentation, accompanying documentation
(1) The Supplier must strictly comply with the agreed characteristics of the goods / services to be manufactured / delivered / provided by the Supplier. The Supplier is responsible for the unobjectionable quality of the goods / services which are manufactured / delivered / provided by the Supplier. In particular, the Supplier warrants that its performance shall accord with the current state of the art and shall have neither physical nor legal defects. The Supplier warrants that its goods / services accord with all legal and technical requirements (e.g. product safety laws). The Supplier is obligated to comply (i) with all pertinent quality standards, particularly DIN standards, and (ii) with all generally recognized technical, safety and occupational health care rules and (iii) with all industrial protection rules, labor protection rules, accident insurance and emission protection provisions, and (iv) with all other pertinent laws, rules, guidelines and pamphlets that are issued by the legislator, competent supervisory bodies, professional associations, or technical surveillance associations. Any safeguards required by accident prevention regulations are to be included in the Supplier’s deliveries. Electrical installations must accord with the VDE regulations. Separately agreed-upon quality control agreements, if any, are to be complied with as well.
(2) By the acceptance of our order the Supplier assures us that he has the necessary professional competence and that he will carry out his contractual duties in full compliance with all applicable engineering rules and safety regulations.
(3) Unless Deharde has issued binding pertinent specifications, the Supplier is solely responsible for the flawless manufacture and for the choice of both the appropriate manufacturing / treatment procedures and the appropriate materials.
(4) If Deharde provides parts, materials, data (particularly 3D data or drawings) or tools (hereinafter called: Deharde Contributions), or if Deharde issues instructions pertaining to materials or processing procedures, then the Supplier must inform Deharde immediately – if possible, before starting work – and in writing about any concerns the Supplier may have, in particular (i) regarding the foreseen performance procedure (e.g. with a view to the level of protection against risk of accidents) or (ii) regarding the suitability and quality of Deharde Contributions (e.g. in case of errors or inconsistencies of data provided by Deharde), or (iii) regarding the services of other enterprises. In such cases the Supplier may only carry out the order if Deharde explicitly and in writing adheres to the Deharde specifications / insists on the use of the unchanged Deharde Contributions despite the Supplier’s written advice. In the event of a violation of his foregoing obligations, the Supplier cannot invoke Deharde’s responsibility for Deharde’s Contributions and instructions. In addition, the Supplier must compensate Deharde for all damages resulting from the Supplier’s violation of the aforementioned obligations.
(5) The Supplier is obligated to perform reasonable quality testing of its supplies and services and to maintain an up-to-date state of the art documented quality management system. The Supplier is also obligated to perform materials tests, test runs, and the preparation of null series to a reasonable extent. The results of the quality tests are to be documented in writing. We are entitled at any time to demand access to the quality testing records and to check the compliance of the Supplier’s performance with the respective orders, in particular by way of (i) inspection of the operations at the Supplier’s premises which the Supplier must allow us at any requested time during business hours, and (ii) inspection of the performance documents. We are also entitled to demand from the Supplier, to a reasonable extent, to deliver random production samples, including samples of interim products. The Supplier is neither entitled to claim reimbursement of expenses, nor to raise any other claims against us, on the grounds of our exercising rights pursuant to this paragraph. Our costs for routine checks which are carried out without a concrete indication that the Supplier may have violated its duties will be borne by ourselves. By contrast, the Supplier has to bear our costs for any checks which are carried out based on concrete indications that the Supplier may have violated its duties or which are carried out due to the fact that previous checks lead to the discovery of such violations.
(6) The Supplier may contract subcontractors to perform its obligations only with our prior written approval. Designated subcontractors must be reported to us in a timely manner before the signing of the contract. Even if we approve the use of subcontractor companies, the Supplier remains unrestrictedly responsible and liable to us.
(7) The Supplier must name a qualified employee (contact person) and ensure the latter’s availability in terms of time. The contact person must be able to answer questions relating to the execution of the contract and he must be authorized to either make necessary decisions himself or to prompt such to be made by others.
(8) We are entitled to perform quality audits (product, process and systems audits) to evaluate the effectiveness of the quality control system or to cause such quality audits to be performed by third parties retained by us. The Supplier warrants us the right to audit, insofar as the audits concern the quality management system and the goods / services to be supplied. Subject to advance notice, Deharde, Deharde’s respective customer, if any, and monitoring authorities, e.g. the Aviation Authority, will be granted access to the business premises and manufacturing facilities and will be given access to quality assurance documentation and quality records.
(9) We are entitled at all times to demand reports on the state of the operation and to check whether our orders are being carried out in compliance with the contractual provisions. In particular, we are authorized at any time in the production period to monitor the Supplier’s performance, to object to inappropriate execution and to reject even prior to delivery defective parts and production respectively. Within business hours, we can demand access to the workplaces, workshops, factories and storage facilities in which the contractual items or parts thereof are being manufactured or in which materials designated for the production of the contractual items are being stored. Upon request, design and construction documents must be presented to us. We are also entitled to grant our customer, if any, the same right to monitor the Supplier’s performance without losing our right to do the same. We are, however, not under any duty to monitor the execution of the contract. Monitoring measures taken by us do not affect the Supplier’s obligations. All information which we may gain regarding the Supplier’s production methods and trade secrets will be kept in confidence by us.
(10) The goods supplied must be accompanied by detailed accompanying documents, in German and English (in duplicate), if necessary in digital or easily reproducible form, at no charge. Accompanying documents include in particular drawings and documents that describe in detail the function of the object supplied and documents that describe the erection, servicing, monitoring, repairs, procurement of replacements, and maintenance of the object and document that are necessary for obtaining required permits. The delivery shall not be deemed complete until all accompanying documents have been delivered. We are entitled to use these drawings and documents in order to manufacture replacement parts and to modify the object, including by third parties retained by us.
(11) Where chemical agents and similarly dangerous goods are delivered, the applicable safety data sheets must be provided as well, even in the absence of any specific prior request by us.
(12) The Supplier remains fully responsible for his drawings, plans, calculations, etc. that he uses in connection with his services, even if we have approved their use.
(13) The Supplier is obligated to check the goods delivered to him by third parties with adequate due care for possible defects. The Supplier shall not employ any sub-suppliers known to him as not altogether reliable.
(14) The Supplier warrants the availability of replacement parts and replacement products for his deliveries and services for a period of ten years after delivery.
(15) If for reasons not within our control a project cannot be carried out, or if we terminate it for such reason, the Supplier shall not have any claim for compensation. However, we are entitled to demand the work results from him. Insofar as we exercise this right, the Supplier shall be entitled to an amount corresponding to the contractually agreed compensation for such work results.
(16) The Supplier undertakes to maintain complete documentation concerning his supplies and services, including the results of the quality control tests, for a period of ten years after delivery, unless a longer period is required by separate agreement or by the provisions of law.
§ 5 Responsibility for Deharde Contributions
(1) The Supplier is aware that Deharde Contributions (§ 4 paragraph 4) provided for the execution of the contract can pose high risks to health if they are not handled with adequate care. The Supplier is obligated to strictly observe all instructions concerning the use of Deharde Contributions. In case of any doubts, the Supplier has to ask Deharde. In case of any violation of these duties by the Supplier Deharde is not liable for any damages suffered by the Supplier or third parties employed by the Supplier as a result of improper handling of Deharde Contributions. In such cases the Supplier has to keep Deharde indemnified against all liability towards third parties.
(2) The Supplier is responsible for the proper storage, securing, insurance, and use of Deharde Contributions.
(3) If Deharde Contributions are damaged, destroyed, or lost at the Supplier’s, the Supplier is liable therefor to the full extent and must compensate Deharde for the resulting damage. For example, if the Supplier produces scrap, the Supplier must reimburse Deharde for the full value of the thus wasted Deharde Contributions, including Deharde’s processing costs incurred.
§ 6 Price, Payment
(1) Unless otherwise agreed, prices are quoted "gross including shipping and insurance", i.e. include the costs of usual packaging, loading and shipping, transport insurance (where such insurance is customary or has been agreed upon), value-added tax and other dues and fees (such as customs duties, stamp duties). The Prices cover all the performances necessary to fill our order, e.g. the costs accruing from the technical processing, test runs, null series, means of production etc.
(2) Unless otherwise agreed, all prices are firm fixed prices in EURO.
(3) For orders that are to be invoiced according to time and material expended, the information concerning time and materials must be signed by us or by an authorized party and must be sent us together with the invoice.
(4) The remuneration will be paid within 30 days, with a deduction of 3 per cent in case of payment within the first 14 days. The periods begin with receipt of a proper invoice or, if the goods arrive after the invoice, with the complete receipt of the goods, including all necessary accompanying documents, in no case, however, before the agreed-upon incoming goods date. Payment does not constitute a confirmation of the proper performance of the contractual obligations by the Supplier.
(5) Invoices must show the order numbers, order positions, and quantities, with individual price and line position price, date of order, article and commission numbers, and inventory numbers. Invoices for partial deliveries may be supplied only for partial deliveries that are exceptionally permissible, and must bear a pertinent notice. Incorrect invoices shall not be paid by Deharde.
(6) Should we be in default, the payment delay interest rate shall be six percentage points above the basic interest rate.
(7) Our rights of offset and withholding for individual claims against the Supplier are unlimited. In addition, we are entitled to offset any claims of the Supplier against us with claims of companies related to Deharde against the Supplier. In addition, we are entitled to offset any claims of the Supplier against companies related to Deharde with claims of Deharde against the Supplier. The Supplier is entitled to offset and/or withhold only if his counterclaim is either undisputed or has been finally legally established.
§ 7 Dates
(1) The delivery dates or deadlines indicated in the order/confirmation of order are binding. The Supplier bears the procurement risk for its services.
(2) The determining factor for compliance with delivery deadlines or delivery periods is proper receipt of the goods or perfect performance of the service including delivery of complete documentation and complete accompanying documents at the receiving locations indicated by us.
(3) As soon as it becomes apparent that a delivery or other service will be delayed the Supplier has to inform us without undue delay stating the reasons for the delay as well as its estimated duration. Such notice does not work to prevent the Supplier from falling into debtor’s delay.
(4) If the Supplier falls in debtor’s delay with his duty to deliver / perform otherwise, we are entitled to a lump sum compensation in the amount of 0.5 per cent of the performance’s value of which the Supplier is in delay for each (fully or partially) elapsed week of delay, but only up to 5 per cent of the total performance’s value of which the Supplier is in delay. The Supplier may prove that substantially less or no damage at all has been caused by the delay. We reserve all our further legal rights in particular (i) the right to establish that the actual damage caused by the delay was higher than the lump sum compensation and (ii) the right to set an adequate grace period and to claim damages in lieu of performance after fruitless expiry of this grace period. In case of a higher loss the lump sum compensation will be credited.
§ 8 Delivery, Transfer of Title, Passing of Risk
(1) All deliveries have to be made to the place of delivery stated in our order or, in the absence of a specific agreement, to our registered office.
(2) For their protection the goods must be packaged and labeled in the proper and customary way. The Supplier is obligated to transport the goods at his own expense to the place of delivery and to take out – at his expense – a transport insurance where commercially obtainable for the goods at issue.
(3) Two delivery tickets must be attached to the delivery. In case of delivery from a foreign customs territory the Supplier must contact us in due time concerning the customs and import procedures. All original documents must be submitted to us not later than seven business days before the arrival of the goods. All additional costs and damages resulting from delayed customs and import procedures shall be borne by the Supplier.
(4) Deliveries of larger or smaller than agreed quantities as well as deliveries in parts are only admissible upon our express written approval.
(5) At our request the Supplier has to take back / pick up the packaging material free of charge.
(6) The passing of risk shall take place only upon unloading at the place of delivery, irrespective of whether the Supplier carries out the shipping himself or by a third party. This applies also in cases where we – as an exception – have undertaken to bear the shipping costs.
(7) Loading or unloading support provided to the delivery persons / the Supplier on a voluntary basis by members of our staff is not part of our obligations and shall be considered performance assistance of these individual members of staff to the transport company / the Supplier. We are not liable for loading / unloading damages.
(8) Title passes to us upon delivery of the goods at the latest. The Supplier does not have a right to retention of title unless expressly agreed otherwise. If our payment is made before delivery, the title passes to us upon payment and a no-cost administration and custody relationship is deemed to exist between us and the Supplier until the delivery.
§ 9 On-call contracts
If we have entered into a contract with the Supplier for on-call deliveries, then we are, unless expressly provided otherwise, entitled to request deliveries if and when needed and in any (partial) quantities. There is no obligation on our side to call forward specific or unvaried quantities or to specific or periodic dates. Unless otherwise agreed, the on-call period is the whole term of the contract. The Supplier is not entitled to request that we call at earlier points of time. An obligation to call forward the complete volume does not exist unless a firm on-call quantity or minimum quantity is agreed upon. Foreseeable quantities are merely non-binding expectations of needs. Unless otherwise agreed, the Supplier is obligated to keep on-call goods immediately available and to make delivery within three business days or on the date specified by us. 4 / 5
§ 10 Documentation, Storage, Confidentiality Obligations
(1) We reserve all our rights, particularly all and any rights of ownership and copyright, regarding all and any documents, illustrations, drawings, parts lists, models, plans, descriptions, calculations, and other embodied information provided by us to the Supplier, be it before or after the conclusion of the contract, (collectively: the "Documentation"). The same applies to verbal information provided by us to the Supplier.
(2) The Supplier is obligated to protect at any time, including after the termination of the contract, the confidentiality of all the Documentation made available to the Supplier as well as the confidentiality of any not yet generally known information that has come to the Supplier’s knowledge in the context of the negotiation, conclusion or implementation of the contract, be it information on operational methods, key figures, other business and working secrets or be it other information of technical, commercial or other nature whatsoever. The confidentiality obligation does not end until, and only to the extent that, the content of the Documentation or confidential information supplied has become generally known. The Supplier must properly store any Documentation, in particular the Supplier must ensure that third parties cannot gain access to it. The Supplier may use the Documentation and all other confidential information solely for the contractually specified purpose. No piece of Documentation may be reproduced, given to third parties, or disclosed in any other manner without our written approval. Upon request any piece of Documentation is to be returned to us immediately. The Supplier must impose corresponding confidentiality obligations on its sub-suppliers.
(3) The Supplier undertakes to pay us a reasonable penalty for each culpable breach of confidentiality obligations pursuant to paragraph 2. The amount shall be determined by us in our reasonable discretion, taking into consideration the scope and severity of the breach. In the event of a dispute about the reasonableness, the Supplier is free to have it verified by the competent national courts. Each breach counts separately, the plea of a continuation link ("Fortsetzungszusammenhang") between breaches is excluded. In the event of permanent breaches every commenced week of breach shall be deemed a separate breach. Claims for damage compensation remain unaffected, but penalty payments count against claims for damage compensation.
§ 11 Retention of Title regarding Deharde Contributions
(1) If we provide the Supplier with Deharde Contributions (e.g. parts, materials or tools) we retain ownership therein. Any processing, rework or alteration by the Supplier is deemed to be made on our behalf as producer. If the Supplier combines, or processes, our property with other objects not owned by us so to form together new products, then we shall automatically acquire co-ownership shares in the new products in relation of the value – at the time of the processing – of on the one hand our property and on the other hand the other processed objects. In respect of cases where the legal rules provide for the Supplier to become the sole owner, the Supplier hereby transfers to us already now a co-ownership share – according to the ratio between on the one hand the value of our property and on the other hand the value of the other (main) object.
(2) The Supplier is obligated to use tools contributed by us solely for the execution of the contract with us. Where maintenance and repair work becomes necessary for these tools, the Supplier will carry out such work without undue delay and at its own expense. All contributed tools must be returned to us without undue delay after the execution of the contract. The Supplier has to make good for any excessive wear of, or other damage to, these objects.
(3) The Supplier is obligated to maintain our property carefully, and in particular to protect it from external influences and third-party access. The Supplier is obligated to insure, at his expense, the objects we own at their reinstatement values against fire, water and theft damage. The Supplier hereby assigns to us any and all claims for damage compensation against the insurer and third parties. We hereby accept the assignment.
(4) The Supplier must report to us immediately any access to, or any breaches of, our property by third parties, particularly seizures, confiscations, damages, and the Supplier must furnish us with all information and documentation necessary for intervention. The Supplier shall be liable for the costs needed for the elimination of the breach, particularly for the costs of a third-party motion to vacate, if such costs cannot be obtained from the enforcing creditor.
§ 12 Inspection on Receipt / Acceptance
(1) The goods supplied shall be inspected by us, within a reasonable period, for transport damages and quality and quantity discrepancies. Our inspection obligation is, however, limited to defects which either come to light even in merely-from-outside inspections of incoming goods and delivery papers, or that become visible in random-sample quality control inspections. In the case of work contracts and in other cases where it has been agreed upon to carry out an acceptance, we are under no inspection obligation. Our complaint to the Supplier shall in any case be deemed to be in due time, if obvious defects are complained about within seven business days from receipt of the goods, respectively if other defects that are however identifiable by appropriate inspection of the goods are complained about within four weeks after receipt of the goods. For compliance with the complaint period, dispatch of the complaint shall be sufficient.
(2) Even if we do not make a reservation when receiving goods or other services and even if we sign receipt confirmations or delivery notes, this shall not constitute a waiver of any rights from belated or defective performance. It is understood by the Supplier that we always reserve our right to carry out subsequent quantity and quality testing in line with the foregoing paragraph.
(3) Payments do not constitute any acknowledgement that the delivery or other performance would have been correct and free from defect.
(4) In case of contracts for work or for work and materials, a formal acceptance of the Supplier’s performance must be carried out.
§ 13 Rights in case of Defects
(1) In case of defective performance on the Supplier’s part we are unrestrictedly entitled to exercise all and any right provided by the law. If a return of goods to the Supplier becomes necessary, the risk and costs are to be borne by the Supplier.
(2) Cure ("Nacherfüllung") includes the removal of the defective goods as well as the re-installation, if the goods had been mounted in another object according to their assigned purpose. The costs incurred by the Supplier for inspection and cure (including removal and installation costs) shall be borne by the Supplier, even if it turns out that there was actually no defect. We shall be liable to the Supplier for his damages from unjustified cure requests from our side, but only if we had actually realised that no defect existed or if we had failed to realise it due to gross negligence on our part.
(3) In purchase agreements and in contracts for works and materials, section 637 of the German Civil Code shall apply analogously. That is, after fruitless expiration of a reasonable period we shall be entitled to cure the defect ourselves or to cause the same to be cured by third parties (substitute performance) and to demand reimbursement of our necessary expenditures from the Supplier, unless the Supplier was entitled to reject our demand for cure. Setting the Supplier a cure period is not required in the cases specified in section 637 paragraph 2 of the German Civil Code; for example if the Supplier seriously and definitively refused to cure, or if immediate cure by ourselves or third parties is justified on the basis of special circumstances, or if a cure attempt by the Supplier failed; or if we cannot reasonably be expected to allow for a cure attempt by the Supplier. Further going statutory rights remain unaffected.
(4) The warranty period is 36 months unless the law provides for a longer warranty period. The warranty period begins even in the case of acceptance of partial performances only with the delivery or acceptance of the entire agreed work or other performance. The warranty period is suspended (i) if and as long as the performance is being checked for defects or (ii) if and as long as efforts to remedy such defects are under way. The period begins to run again once either the defect is removed or the Supplier refused to continue his attempts to remove the defect.
(5) If a customer of ours or a third party raises claims against us - on the grounds of product liability, liability for defects or liability for damages on other grounds - with respect to a performance which we had received from the Supplier, then the Supplier has to provide us without undue delay with all the information and documentation required or useful for our legal defense. The Supplier is obligated to indemnify us in full, unless the Supplier proves that he is not responsible for the defect or damage.
§ 14 Third Parties’ Rights, Property Rights
(1) The Supplier warrants that the delivered goods are free of third parties’ rights, in particular free of retentions of title, industrial property rights, liens and other charges. This applies to foreign industrial property rights only insofar as the Supplier when the contract was made knew that the goods would be delivered in the geographical area where such rights are valid.
(2) The Supplier indemnifies us from all obligations that result from the delivered goods being encumbered with third parties’ rights. Additional legal rights remain unaffected.
(3) If partially due to contributions by us know-how which is suitable for registration as patent or industrial design is developed in the course of the preparation or execution of the contract, the Supplier and we will jointly file for registration. The exploitation of such know-how will have to be carried out in fair consideration of the mutual interests.
§ 15 Damages and Rescission
(1) We are entitled to claim compensation for damages and to rescind the contract where the legal rules provide for such rights.
(2) Where we are thus entitled to claim damages in lieu of performance we shall have the right to ask for a lump sum in the amount of 15 per cent of the agreed remuneration. The Supplier may prove that our actual damage is smaller. We reserve the right to assert that our actual damage exceeds the lump sum amount.
§ 16 Product Liability, Insurance
(1) If the Supplier is liable for product damage, the Supplier must hold us harmless from third-party claims to the extent that the cause stems from the Supplier’s management and organizational sphere and the Supplier is itself liable externally. The Supplier must reimburse us for all expenses resulting from or in connection with third-party claims. The Supplier must also refund the costs incurred by us in any recall program. Concerning the objects and scope of recall programs we shall inform the Supplier, to the extent possible and reasonable, and give the Supplier the opportunity to express its opinion. Further going legal rights remain unaffected.
(2) The Supplier further undertakes to maintain at its own expense product liability insurance with a minimum coverage amount of EUR 10 million per personal/material damage. The Supplier also undertakes to maintain a public liability insurance with a coverage of EUR 10 million, which also covers damages on further delivery by us. At our request, the Supplier must produce evidence of the pertinent insurance and must send us a copy of the liability policy. The existence of such insurance does not limit our direct claims against the Supplier.
§ 17 Poaching of Staff
(1) The Supplier undertakes during the term of the contract and for six months after termination of the contract to refrain from poaching any Deharde personnel.
(2) In the event of a violation of this provision against poaching, the Supplier is obligated to pay a contractual penalty of EUR 25,000.00 per individual case.
§ 18 Customer Protection
(1) Regarding any customer of ours with whom we have an actual business relationship or with whom we had one in the preceding 12 months the Supplier agrees to refrain during the whole contract period and an additional twelve-month period from any kind of direct or indirect offering and/or rendering such services as are either part of our customer relation or of our general field of business and which we could perform by ourselves or third parties.
(2) The Supplier undertakes to pay a reasonable penalty for every case of culpable breach of the customer protection agreement. The amount shall be determined at the discretion of Deharde, with due consideration for the scope and severity of the breach. In the event of a dispute, the Supplier is entitled to have the reasonableness of the amount verified by the competent national courts. Each breach counts separately, the plea of a continuation link ("Fortsetzungszusammenhang") between breaches is excluded. In the event of permanent breaches every commenced week of breach shall be deemed a separate breach. Claims for damage compensation remain unaffected, but penalty payments count against claims for damage compensation.
§ 19 Final Provisions
(1) The law of the Federal Republic of Germany applies but to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of jurisdiction for all disputes arising out of this contractual relationship is Varel, but we are also entitled to file actions against the Supplier at its place of general jurisdiction.
(3) Changes in and additions to the contract and ancillary agreements must be made in writing.
(4) Should one or more provisions of the contract be or become invalid, the validity of the other provisions shall not be affected thereby. This rule applies analogously if the contract contains a gap. In such cases the invalid provision(s) shall be replaced with the provision that comes commercially as close as legally possible to the purpose of the invalid provision, respectively the gap shall be filled with the provision that fits best the parties’ common intent.
Status: January 2018
General Terms and Conditions of Sale of Deharde GmbH
(1) All the deliveries and all the other services we render for Customers are subject to these Terms and Conditions. They form an integral part of all offers and acceptances and shall have exclusive effect as far as no divergent rules are individually agreed. General terms and conditions of the Customer which are contrary to or divergent from ours are not accepted even where we - despite knowledge of the Customer’s terms and conditions - perform our delivery or service without expressing reservation. These Terms and Conditions apply only where our Customer is an entrepreneur in the sense of section 310 paragraph 1 BGB (German Civil Code).
(2) These General Terms and Conditions shall also apply to any future transactions with the Customer.
2 Offer and Conclusion of Contract
(1) Our offers are non-binding (so-called „invitatio ad offerendum“) unless they are - explicitly and in writing and with definition of a validity period - given as a binding offer. In the case of a non-binding offer a contract only comes into existence if we declare in writing the acceptance of the Customer’s order or deliver the Goods. If we submit a binding offer we are entitled to revoke it until acceptance by the Customer.
(2) If the order of a Customer constitutes a binding offer he is bound by his offer for a two-week period, unless a different period is expressly stated or agreed upon.
3 Provided records, Non-Disclosure
(1) We reserve our ownership and property rights with respect to all documents made available to the Customer in connection with the contract, e.g. construction documents, estimates and calculations, drawings, plans or other technical documentation. The customer is obligated to keep any documentation which may be disclosed to him confidential, to store it properly and, in particular, to make sure that it is not accessible to any third party. In the absence of a written approval by us such documents must not be reproduced, pledged, made accessible to third parties or made known otherwise. The documents may only be used for the purpose of the contract. Upon our request they have to be returned to us without undue delay.
(2) The Customer is furthermore obligated to keep secret any information having come to his knowledge in connection with the contract regarding our operating procedures and other operating data as well as all other trade and business secrets and any other information which we have an interest to keep confidential. Such information may not be made accessible to any third party without our written consent.
(3) The Customer agrees to pay a lump sum amount (contractual penalty) of €50,000.00 in any case of violation of the non-disclosure obligation.
4 Prices and Payment
(1) Unless otherwise agreed in written form, our prices are quoted “net ex works”, i.e. they do not include costs of packaging, applicable value-added tax, insurance, customs duties and taxes, costs of transportation etc.
(2) Cost estimates are non-binding. Should it become apparent that the actual remuneration will considerably exceed the estimated one, we will notify the Customer without undue delay. The Customer is then entitled to cancel the contract.
(3) We are entitled to reasonable down-payments. Furthermore, we are entitled to demand advance payment or provision of security if the Customer defaults in payment or if circumstances become apparent after the conclusion of the contract which raise doubts as to the Customer’s solvency.
(4) Payment of the remuneration has to be made exclusively to the bank account designated overleaf. The deduction of a cash discount is only admissible if specifically agreed in written form.
(5) The Customer is in debtor's delay if he fails to settle invoice amounts within 14 days upon receipt of the invoice by the Customer. The foregoing does not affect legal provisions putting the Customer in debtor's delay at an even earlier point of time.
(6) In cases of an unforeseeable extraordinary price increase, e.g. due to currency fluctuations and hikes of prices for raw material, we are entitled to pass on the price increase to the Customer. If the price increase exceeds 15 per cent of the initial net price the Customer may reject the increase in price. In such a case we are entitled to rescind the contract.
(7) If the Customer is in debtor's delay our claim bears interest at the average interest rate charged by German banks for open overdraft credits. The Customer may prove that his delay caused substantially less or no damage at all. We reserve the right to claim additional compensation for actual damages beyond the interest defined above. The legal rules on the minimum interest rate remain unaffected.
5 Set-Off and Rights of Retention
The Customer is only entitled to an offset if his counterclaim either has been confirmed by a final judgement or is undisputed. The Customer may only exercise a right of retention insofar as his counterclaim is based on the same contract.
6 Export and Import Permits
(1) Our deliveries and services are designed only for use and location within the delivery country named by the Customer. We point out that an export by the Customer is subject to the export provisions of the Federal Republic of Germany or such other delivery country as the Customer may have named respectively.
(2) The Customer must check export provisions and potential limitations on his own responsibility (e.g. concerning German provisions: at the Federal Office of Economics and Export Control, BAFA, in Eschborn; concerning US provisions: at the US Department of Commerce, OEA, Washington D.C. 20230).
7 Customer’s General Duty and Obligation to Co-operate
(1) The Customer is obliged to provide all kind of cooperation owed by him under the contract or otherwise required from him in good faith. He is in particular obliged to lay all the foundations which are necessary to enable us to execute the contractual services. He is obliged to procure all necessary information, documents and data upon request. The customer is obliged to arrange for a qualified contact person and to ensure the latter's availability in terms of time.
(2) All additional costs accruing from a delay in necessary cooperation are to be borne by the Customer.
(3) The Customer is obliged to obtain the necessary permissions. We are entitled to set an adequate time limit for acts of co-operation owed by the Customer. Upon fruitless expiry of such period we are entitled to rescind the contract.
8 Delivery, Delivery Date
(1) Provided that it is reasonably acceptable to the Customer, we are entitled to delivery in parts.
(2) Provided that we have timely concluded a congruent supply contract, our dates of delivery are subject to punctual and correct supply to ourselves.
(3) Our delivery obligation shall be suspended in events of force majeure (being defined as circumstances or incidents which (i) had not been foreseen, (ii) were not caused through any fault of ours, and (iii) could not have been prevented by measures which were to be expected from a diligent businessman in our position; such events including e.g. war, disruptions of operation, disruptions of traffic, strikes, lock-outs, disruptions of shipment, governmental decrees etc.). Where due to the extent of the suspension a party cannot be expected to adhere to the contract, it shall be entitled to rescind the contract.
(4) The delivery periods will automatically be extended by adequate extra periods if the Customer does not co-operate in a timely manner.
(5) The Customer shall notify us in writing if he wishes the Goods to be insured during shipment. The costs of such insurance shall be borne by the Customer.
(6) If the Customer defaults in the acceptance of deliveries or other services or violates his duty to cooperate, we shall be entitled to damages and reimbursement for additional costs. Furthermore, we shall be entitled to set an adequate grace period and – upon fruitless expiry – to charge a storage fee in the amount of 0.5 per cent of the price of the respective goods for each month during which – or during part of which – the default in the acceptance persists, such fees, however, not to exceed a total of 10 per cent. This does not exclude either party’s right to demonstrate and plead that the actual amount of storage costs and other damages is higher or lower. Furthergoing legal rights and claims of ours are reserved. If the afore-mentioned conditions are met the risk of accidental loss or deterioration of the goods shall pass to the Customer at the time he defaults in acceptance of the Goods or falls in debtor's delay regarding cooperation owed by him.
9 Passing of Risk in case of Shipment, Disclaimer of Warranty for Assistance in Loading
(1) The risk of accidental loss or deterioration of the Goods shall pass to the Customer when the Goods are handed over to the carrier for loading; if we provide the shipment ourselves the risk shall pass when loading starts, at the latest, at the Good's leaving the factory/ storage facility. This applies irrespective of whether the shipment is carried out from the place of fulfillment or by whom the shipment costs are to be borne.
(2) If, at the Customer’s request or due to other reasons originating in his sphere, the delivery is made later than at the first possible date of delivery, the risk passes to the Customer upon our notice of readiness for shipment.
(3) Should our employees support the carrier and the Customer respectively in the loading although the loading does not fall within our contractual obligations, then our employees qualify as agents of the carrier or the Customer respectively. In such a case any liability on our part for possible damages occurring in the loading is excluded.
10 Retention of Title
(1) We reserve the right to the title of the Goods delivered until full payment of all claims arising from the contract. This applies as well to all future transactions, even without explicit reference to this provision.
(2) The Customer is obliged to treat all Goods under Retention of Title with due care and to insure them adequately against the usual risks (theft, fire, water damage, etc.). Customer has to carry out necessary maintenance and repair at his own expense and without undue delay.
(3) For the duration of the retention of title, the Customer may not pledge or transfer by way of security any Goods under Retention of Title. The Customer may resell such Goods in the ordinary course of business only and only provided that the Customer is not in default, has not filed for insolvency nor is under a duty to file for insolvency, and only subject to the additional condition that the Customer either receives payment from the purchaser or reserves title to the Goods until receipt of payment from the purchaser. The Customer hereby assigns to us all claims arising from such resale of Goods under Retention of Title. With respect to such Goods under Retention of Title, which we own only jointly with others, the Customer's assignment of the claims from the resale shall be limited to the fraction of our co-ownership share in the respective Goods under Retention of Title. We hereby accept the Customer’s afore-mentioned assignment. We give the Customer the revocable authorization to collect the claims despite their assignment to us for the Customer's own account and on its own behalf. We reserve the right to revoke this authorization and to collect such claims directly from the purchaser, if and when the Customer defaults on its payment obligations or his financial circumstances deteriorate significantly, in particular when he has filed for insolvency or is obligated to do so. In the event of a revocation of the authorization the Customers is obligated to submit to us all information and documentation necessary to enforce the claim and to assist us with the enforcement as well as to inform the third party upon our request of the assignment.
(4) In the event of any breach of contract committed by the Customer we shall be entitled to rescind the agreement and to demand the delivered Goods to be returned.
(5) The Customer shall notify us without undue delay, should any Goods under Retention of Title be affected by an order of attachment, seizure or other judicial order or by impairment or other interference by third parties, and he has to provide us with all information and records necessary for an intervention. The Customer is liable for all costs, which accrue from efforts to remove the interference, such as in particular third party proceedings (Drittwiderspruchsklage), to the extent that compensation for these costs cannot be obtained from the creditor who initiated the interference.
(6) Any processing or alteration of the Goods by the Customer are deemed to be made on our behalf and account for us as producer. In this event the Customer’s expectant right in the Goods survives as expectant right in the processed Goods. If the Customer processes Goods under Retention of Title combining them with other Goods not owned by us so to form new products, then we shall automatically acquire co-ownership shares in the new products (Section 947 sub-section 1 of the German Civil Code (BGB)) - in relation of the invoice values - at the time of the processing - of on the one hand the processed Goods under Retention of Title and on the other hand the other processed Goods.
The Customer is obligated to accept performed work upon its completion. Complaints must be notified to us without undue delay and in full. Acceptance of the work is deemed given ten (10) days upon completion unless the Customer states within this period in written form the reasons for the refusal.
12 Warranty for Defects and Notification of Defects
(1) The Customer is obligated to carry out a due inspection of the Goods and to notify defects without undue delay. The provisions on inspection and notification contained in Sections 377 et seq. of the German Commercial Code (HGB) shall apply accordingly to contracts for work services as well as to contracts dealing with the supply of Goods to be produced or manufactured by the supplier. In case of an obvious damage in transit the Customer has to report it immediately to the carrier and to make the letter give a signed acknowledgement. Any defect which can be discovered by due inspection, must be notified to us without undue delay, at the latest five working days upon receipt of the Goods, and any hidden defect must be notified to us immediately after its discovery; failure to notify defects in due time is deemed as acceptance.
(2) The limitation period for claims based on defects is twelve (12) months upon delivery or acceptance respectively. The afore-mentioned provision does not apply where section 438 sub-section 1 no. 2 of the German Civil Code (BGB) - buildings and goods for buildings -, section 479 sub-section 1 of the German Civil Code (BGB) - Recourse claims - and section 634a sub-section 1 of the German Civil Code (BGB) - building defects - mandatorily provide for longer periods. The Customer must obtain our prior approval before returning goods to us.
(3) We are not responsible for defects resulting from defective parts supplied by third parties, unless we have assumed a guarantee in this respect or the defect of the part supplied by the third party can be discovered by due inspection. We are not obligated to carry out quality checks of parts supplied by third parties.
(4) Should a product delivered by us have a defect which defect existed already when the passing of risk took place and provided that this defect is notified to us in due time, we are obliged to remedy the defect, - at our option - either by repair or by replacement of the defective product. The Customer shall always give us the opportunity to remedy the defect within reasonable time. In the event of repair we are entitled to use either new parts or reconditioned parts.
(5) Should the remedy of a defect be impossible, or should it be denied, should it be unreasonable or should it fail, the Customer is – notwithstanding possible rights to compensation for damages – entitled to rescind the contract or decrease the purchase price. The remedy of a defect cannot be considered as failed before at least two attempts have been made. Only after having given us the opportunity to remedy a defect in compliance with the foregoing rules, the Customer is entitled to remedy the defect himself and to demand from us reimbursement of the expenses necessarily accrued thereby according to Section 637 of the German Civil Code. Rights to compensation for damages are subject to the additional requirements stipulated in section 13 of these Terms and Conditions.
(6) Claims for defects do not exist in case of insignificant divergence from the agreed quality, insignificant impairment of usability, regular abrasion and wear as well as damage occurring after the passing of risk due to incorrect or careless use, excessive strain, unsuitable operating materials, defective construction work, improper soil or unusual external circumstances which had not been contemplated in the contract.
(7) The Customer’s claims for reimbursement of the expenses which are necessary to remedy a defect, such as in particular costs of transport, travel, work and materials, are excluded insofar as those expenses are increased due to the fact that the Goods delivered by us were moved to a location other than the Customer’s establishment, unless this transport is part of the use that had been contemplated in the contract.
(8) In case of fraudulent concealment of the defect or where we have given a guarantee for the quality of Goods (Section 444 of the German Civil Code), the Customer's rights are without modification those defined in the law.
13 Right to rescind, Claims for Damages
(1) The right to rescind the contract is granted pursuant to the legal provisions, but subject to the additional provision that a breach of duty - other than a defect - shall only entitle the Customer to rescind the contract, if we are responsible for such breach.
(2) In addition to the other preconditions, liability on our part for compensation of damages shall presuppose malicious intent or at least gross negligence. We shall only be liable for normal negligence ("einfache Fahrlässigkeit") where a key duty has been violated - key duty being defined as duty which is essential for the implementation of the contract so that the Customer can regularly expect its proper observation. All other claims for damages of any kind on any basis are expressly excluded, e.g. liability for default on negotiation and/or conclusion of contract.
(3) Should we become liable for normal negligence pursuant to sub-section 2 above, then our liability shall be restricted to such damages as - based on the circumstances known by us when the contract was concluded - had to be taken into consideration as a typical scenario.
(4) Furthermore, liability for negligent conduct is limited per incident to the amount of the insurance sum of our public liability insurance.
(5) The afore-mentioned exclusions and restrictions of liability apply neither insofar as we have given a guarantee, nor where we are liable under the German Product Liability Act (Produkthaftungsgesetz), nor to damages to life, bodily integrity or health.
(6) The afore-mentioned exclusions and restrictions of liability do also apply to our employees, auxiliary persons ("Erfüllungsgehilfen") and to any third party somehow involved by us in the implementation of the contract.
14 Final Provisions
(1) All agreements between the parties, including these General Terms and Conditions, shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
(2) The place of performance for all obligations arising under any agreements between the parties, including these General Terms and Conditions shall be VAREL. Any disputes arising between the parties shall be exclusively heard and resolved by the courts of competent jurisdiction for VAREL.
(3) Changes of or amendments to this agreement and any supplementary stipulations, including the written form requirement set forth in this clause, must be in writing. There are no verbal side agreements.
(4) Should any provisions of the agreement, including these General Terms and Conditions, be or become invalid, whether in whole or in part, then the validity of the remaining provisions shall remain unaffected thereby. Any invalid provision or invalid part of a provision shall be replaced by such valid provision as most closely approximates the commercial intent and purpose of the original Provision.
Varel, Date: June 2008