General Conditions of Purchase of I.S.T. Molchtechnik GmbH
Section 1 General provisions and scope of effectiveness
(1) Our conditions of purchase apply exclusively. We do not recognise any conditions of the supplier that contradict or differ from our conditions of purchase, unless we have explicitly agreed to their applicability in writing. Our conditions of purchase shall also apply if we carry out the delivery to the supplier without any reservations despite being aware of conditions of the supplier which are contradictory to or differ from our conditions of purchase.
(2) All arrangements which are made between us and the supplier for the purpose of performing this contract must be set out in this contract in writing.
(3) Our conditions of purchase only apply with respect to companies under Article 310.1 of the German Civil Code (BGB).
Section 2 Offer and offer documents
(1) The supplier is obliged to accept our order within two weeks.
(2) We reserve the ownership title and copyrights to any images, drawings, calculations and other documents. They must not be made available to third parties without our explicit written consent, and they must only be used for production on the basis of our order. After the order has been fulfilled they must be returned to us without being requested. They must be kept secret from third parties. In this respect, the provisions of Section 9(5) apply on a supplementary basis.
Section 3 Prices and payment terms
(1) The price specified in the order is binding. In the absence of any written agreement to the contrary, the price includes delivery “carriage paid”, including packaging. The return of the packaging shall require a special arrangement.
(2) Statutory VAT is included in the price.
(3) Unless otherwise agreed in writing, we shall pay the purchase price within 20 days from the date of delivery and the receipt of the invoice, with a 3% discount, or net within 30 days after the receipt of the invoice. Payment shall be subject to verification of the invoice.
(4) We are entitled to setting-off rights and rights of retention to the extent provided for by law.
Section 4 Delivery
(1) Deviations from our orders are permitted only once we have given prior written consent.
(2) The delivery time specified in the order is binding.
(3) The supplier is obliged to inform us immediately in writing of any circumstances which occur or come to its attention as a result of which the specified delivery time cannot be complied with.
(4) In the event of late delivery, we shall have the entitlements provided for by law. In particular, we shall have the right, after the ineffective lapse of a reasonable time limit, to demand compensation instead of the performance and the rescission of the contract. If we demand compensation, the supplier shall have the right to prove to us that it was not responsible for the breach of obligation.
(5) The acceptance of a late delivery or service without reservations does not constitute a waiver of claims for compensation to which we are entitled on that basis.
(6) In principle, partial performances are not permitted, unless we have explicitly agreed to them in writing or they can be reasonably required under the circumstances.
(7) For unit quantities, weights and dimensions, as a rule the values determined by us during the inspection of the goods upon their receipt shall be decisive, subject to other proof.
(8) We have the right to use delivered software, including its documentation, to the extent permitted by law (Article 69a et seq. of the German Copyright Act (UrhG)). We shall also have the right to use them with the agreed performance characteristics and to the extent necessary for utilisation in accordance with the contract. We shall also be permitted to create a back-up copy without an explicit arrangement.
Section 5 Transfer of risk
(1) Unless otherwise agreed in writing, delivery shall be carriage paid.
(2) Unless explicitly agreed otherwise, the supplier shall bear the risk of material damage until the goods are accepted by us or by our employees at the location to which the goods are to be delivered under the order.
Section 6 Inspection for defects and liability for defects
(1) We shall be obliged to inspect the goods within a reasonable time limit for any discrepancies in terms of quality or quantity. Complaints will be deemed to have been submitted in good time if they are received by the supplier within five business days from the receipt of the goods or, with regard to hidden defects, from the date of their discovery.
(2) We shall have the statutory entitlements relating to defects without limitation. In any event, we shall have the right to demand that the supplier eliminate the defect or deliver a new item, according to our choice. We explicitly reserve the right to compensation, particularly the right to receive compensation in place of the performance.
(3) We shall have the right to eliminate the defect ourselves at the supplier’s expense if the supplier delays in doing so.
(4) The time limitation period for claims is 36 months from the transfer of risk, unless the mandatory provisions of Articles 478 and 479 of the German Civil Code apply.
Section 7 Product liability, indemnification and liability insurance cover
(1) If the supplier is responsible for product damage, it will be obliged to indemnify us against claims for compensation of third parties at our first demand to the extent that the cause lies within its sphere of control and organisation and it is liable itself in the external relationship.
(2) In connection with its liability for events of damage in the meaning of paragraph (1), the supplier shall also be obliged to reimburse any expenses under Articles 683 and 670 or Articles 830, 840 and 426 of the German Civil Code which arise from or are related to a recall carried out by us. To the extent it is possible and can be reasonably expected, we shall notify the supplier of the content and scope of the recall measures to be carried out and provide it with the opportunity to express an opinion. Other statutory entitlements shall remain unaffected.
(3) The supplier undertakes to maintain a product liability insurance policy with an insured amount of € 10 million per event of personal injury/damage to property (flat amount). If we are entitled to more far-reaching compensation claims, they shall not be affected.
Section 8 Protective rights
(1) The supplier warrants that in connection with its delivery no third-party rights will be infringed within the Federal Republic of Germany.
(2) If a third-party takes action against us on that account, the supplier shall be obliged to indemnify us against those claims at our first written demand. Without the supplier’s consent we shall not have the right to conclude any agreements with the third party, particularly a settlement.
(3) The supplier’s indemnification obligation relates to all outlays that we have to incur due to or in connection with action being taken against us by a third party.
(4) The time limitation period amounts to 36 months from the transfer of risk.
Section 9 Retention of ownership, provision and confidentiality
(1) If we provide parts to the supplier, we shall retain the ownership title to them. Processing or alteration by the supplier shall be carried out for us. If our goods subject to retention of title are processed with other items that do not belong to us, we shall acquire the co-ownership title to the new item according to the ratio of the value of our goods (purchase price plus VAT) to the other processed items at the time of the processing.
(2) If the item provided by us is inseparably mixed with other items that do not belong to us, we shall acquire a co-ownership title to the new item according to the ratio of the value of our goods subject to retention of title (purchase price plus VAT) to the other mixed items at the time of the mixing. It is agreed that if such mixing occurs in such a manner that the supplier’s item must be deemed the main item, the supplier shall transfer a co-ownership title to us on a pro rata basis. The supplier shall safekeep the solely owned or jointly owned property for us.
(3) If the security rights to which we are entitled under paragraph (1) and/or paragraph (2) exceed the purchase price of all our goods subject to retention of ownership which have not yet been paid for by more than 10%, at the supplier’s request we shall be obliged to release the security rights according to our choice.
(4) The supplier shall keep strictly confidential all images, drawings, calculations and other documents and information that it receives from us. They may only be disclosed to third parties with our explicit consent. The obligation to maintain confidentiality shall also apply after this contract has been completed. It shall expire if and to the extent that the production information contained in the images, drawings, calculations and other documents provided has become generally known.
Section 10 Place of jurisdiction and place of performance
(1) If the supplier is a trader, our registered office shall be the place of jurisdiction. However, we shall also have the right to take legal action against the supplier in the jurisdiction of its domicile.
(2) Unless stated otherwise in the order, our registered office is the place of performance.
Hamburg, October 2011