Terms and Conditions for Purchase - TCP
HydroService Zylinderbau GmbH (Version: June 2014)
1. In addition to the individual contract agreements, only these terms and conditions for purchase are applicable to the entire business transactions with suppliers or other contractors (jointly referred to as "Suppliers" in the following). They are applicable in case of continuous business relationships until the applicability of our new terms and conditions for purchase. Other general terms and conditions do not become part of the contract either by order confirmation on the part of the supplier or by unconditional acceptance of supplies or services or by payment of the same.
2. The execution of our order is deemed to be acceptance and acknowledgement our terms and conditions for purchase.
3. For sales or supplies made by us, our current terms and conditions for sale, supply and payment shall be applicable.
The offer must expressly indicate any deviations from the enquiry. The supplier is bound by his offer for at least one month and he should prepare a sample of the product to be supplied. The offer and sample must be submitted free of charge. The prices must be furnished in Euro including packing and insurance.
III. Ordering, Order Execution and Withdrawal from the Contract
1. Our order(s) must be accepted immediately after their receipt and confirmed in writing with binding delivery period and prices. On-demand calls for supply are binding if they are not contested within one week of their receipt. Orders based on the master agreement only authorise the procurement of the required amount of primary material. The production of parts for on-demand orders is permissible only after receipt of the on-demand request. In case of amendments to the drawing or shape by the supplier, he shall bear the risk of non-acceptance of the goods as well as other loss and defects caused by the same.
2. Deviations in quantity and quality with respect to the text and contents of our order and subsequent amendments to the contract are deemed to have been agreed only if we have expressly confirmed the same in writing.
3. Drawings, tools, samples, models, brands and packaging or similar as well as the finished products or semi-finished products that are handed over by us or produced on our behalf remain or become our property and should be supplied to third parties only with our written consent to this effect. Subject to any agreements to the contrary in specific cases, these items must be returned to us promptly and free of charge with the completion of the order without being specifically asked to do so.
4. Transferring the order to third parties without our consent is prohibited and entitles us to withdraw from the contract or to enforce claims for compensation.
5. If the creditworthiness or delivery capability of the supplier deteriorates to an extent that the fulfilment of the contract gets endangered or the supplier discontinues his deliveries either partially or completely, or if insolvency proceedings are initiated on his assets, we are entitled to withdraw from the contract that may also be exercised partially.
IV. Delivery Schedules and Lead Times, Delay
1. Delivery schedules and lead times given in the orders and on-demand calls for supply are binding. What is decisive for the compliance with the lead times and schedules is the receipt of the delivery in our works. Partial deliveries are permissible only based on mutual agreement with us. The supplier must inform us immediately in case of difficulties in making deliveries conforming to the specified quality in accordance with the schedule, and he must obtain our decision for adherence to the order. He shall be liable for notifications that have not been made of have been delayed.
2. We are entitled to make claims as per the law in case of delay in delivery. Any time period set by us for performance or supplementary performance is then unnecessary, if our own deadlines require this, since we have to reckon with the fulfilment of the contract being rejected by our customer or if a fixed deadline has been agreed to with the supplier.
3. Any exclusion or limitation of liability on the part of the supplier is ruled out.
4. In case of withdrawing from the contract, we are entitled to retain partial deliveries against credit.
5. If we cannot accept the goods on account of Force Majeure conditions or based on other, unforeseen circumstances beyond our control, which affect the acceptance of the goods by us in time, the time period of acceptance gets extended reasonably, as a result of which there is no delay in the acceptance.
6. War, civil war, export or trade restrictions on account of a change in political conditions as well as strikes, lock-out, operational interruptions, operational restrictions and similar events, which make performance of the contract by us impossible or unreasonable, are deemed to be Force Majeure conditions. After appropriate notification to this effect, the suppliers are obliged to act in good faith towards their existing obligations and to adapt them to the changed situation and circumstances.
7. In other cases of culpable delay in acceptance, the claim for compensation is restricted to maximum 50 % of the value of the delivery whose acceptance has been delayed.
8. If there is a delay in the delivery on the part of the supplier, after issuing a reminder, we are entitled to claim contract penalty of 0.5 % of the net order value for every week of delay or part thereof, but maximum 5 % of the net order value of the delivery and / or to withdraw from the contract. The contract penalty paid shall be offset against the claim for compensation.
V. Transport and Risk Transfer
1. Supplies are basically delivered on free domicile basis or free door delivery.
2. The supplier shall be liable for loss or damage that occur before and during transport including unloading and up to acceptance in our works. The supplier must take out a transit insurance policy of adequate risk cover for the deliveries.
3. The risk is transferred only at the time of delivery to the consignee address or with the acceptance of the goods in our works. Until the time of dispatch, the goods must be kept in safe custody by the supplier at his own cost and risk.
4. For freight shipments, dispatch notification must be sent to us separately on the day of shipment.
VI. Prices, Payment and Assignment
1. The price indicated in the order is deemed to be the maximum price. It may be undershot but it cannot be overshot. The VAT (Value-Added Tax) must be indicated separately. The cost of packing is included in the price. If anything to the contrary has been agreed, the expenses for the packing must be charged at the cost price.
2. Invoices must be issued separately for each order. Payment is made only after receipt of the complete goods free of defects or complete provision of defect-free services and after receipt of the invoice. This applies accordingly when partial deliveries are permissible.
3. The payment for the deliveries is made in accordance with the discount agreement, and we are at least entitled, in case of payment being made within 14 days of receipt of an invoice, to deduct 3 % discount from the invoice amount.
4. Claims of the supplier against us should be assigned to third parties only after our consent in writing to this effect.
VII. Claims for Defects, Investigations for Defects, Time Limitation and Recourse
1. The supplier must transfer the goods such that they are free from any defects. The statutory regulations are applicable provided that nothing to the contrary is specified in the following. The supplier undertakes to take responsibility for all defects and consequential damage from these defects arising from the absence of the product characteristics. In the course of supplementary performance, we are entitled to choose between removal of the defects and supply of goods free from defects by the supplier. This is even without prior request for supplementary performance.
2. The supplier is obliged to bear all expenses necessary, especially the transport, labour, incidental and material costs for the purpose of attending to the defects, supply of replacement goods or confirmation of the loss or damage. If the supplier does not rectify the defects or supply replacement goods within a time period set for this purpose, or if this fails, we are entitled to withdraw from the contract and demand compensation instead of the service.
3. In urgent situations, if there is the risk of delay or to avoid greater loss or damage, we are entitled to rectify the defects on our own or have them attended to by third parties at the cost of the supplier.
4. A claim for defects is considered to be in time according to Article 377 of the HGB (German Commercial Code) if it is made within a period of two weeks calculated from the receipt of the delivery, or, in case of concealed defects, calculated from the time that these have been discovered.
5. In case of a complaint, we reserve the right to charge the costs incurred in connection with the claim for defects to the supplier. The supplier shall bear the costs and risk of returning defective goods supplied.
6. For the product manufactured or supplied by the supplier or for the order executed by him, our claims for compensation are limited in time basically in accordance with the statutory regulations in force for this purpose. In case of defects of title, the supplier shall indemnify us against the claims made by third parties. The period of time limitation with respect to defects of title is 10 years.
7. For parts of the supply or services attended to or repaired within the period of time limitation, the period of time limitation starts afresh with effect from the point in time at which the supplier has fulfilled our claims for supplementary performance completely.
8. If we take back products provided and / or sold by us as a consequence of the defects in the contractual item delivered by the supplier or if on this account the purchase price payable to us gets reduced or if any other claim has been lodged against us, we reserve the right to take recourse.
9. We are entitled to demand reimbursement of the expenses necessarily incurred by us towards our customers, because they have lodged a claim for compensation against us for the purpose of supplementary performance.
10. Regardless of the provisions in clause 6, the time limitation in the case of clause 8 and 9 occurs at the earliest 2 months after the time point in which we have fulfilled the claims made by our customers against us, but latest 5 years after delivery by the supplier.
VIII Product Liability and Insurance Cover
For defects in the goods as well as any loss or damage resulting from the same, which occur with us or with third parties, the supplier shall indemnify us against the liability resulting from this. The supplier shall come to an agreement with his insurer regarding this indemnification in the course of his third party liability insurance cover. The supplier shall indemnify us from the responsibility of any product damage against claims lodged by third parties provided that the root cause lies in his domain or organisation. He is obliged to reimburse the expenses for a recall that has been done to prevent personal injuries and which has become necessary as a result of a defect in the product caused by the supplier. The supplier undertakes to maintain a public liability insurance policy and a product liability insurance policy with a liability limit of at least 2 million € lump-sum for personal injuries and damage to property. The scope of this insurance policy must stretch across the forms of cover of the so-called extended product liability insurance including the insurance of personal injuries and damage to property on account of lack of assured product characteristics of the item supplied, the bonding, mixture and processing of the products supplied, their processing and further processing, the costs of installation and disassembly, the production of rejects by machines as well as a clause covering testing and sorting costs. The limit of liability must be at least 2 million € for each instance of loss or damage. The supplier shall submit an appropriate confirmation of the insurance company to this effect on request.
IX. Property Rights and Indemnity
The supplier warrants that the property rights of third parties shall not be infringed upon in connection with his supply. If a claim is lodged by a third party against us on account of violation of property rights, the supplier is obliged to indemnify us against these claims at the first request made by us for this purpose. When using the property rights of third parties on account of licence agreements concluded with the supplier, he must ensure that we are permitted to use the same for the period of the service life of the products supplied in all countries in which such property rights exist. We have the right of joint use of the property rights free of charge covering the products supplied to us. The obligation to indemnify us pertains to all expenses that are borne by us from and in connection with the claims lodged by third parties.
X. Providing Tools and Materials
If the order includes taking over the costs of tools or models, it is agreed that the tools and models are our property. The supplier is obliged to deploy these items only for the manufacture of the goods ordered out by us. The supplier shall not receive any special remuneration for this purpose.
XI. Retention of Title
1. We reserve the right of ownership to items that are provided by us. Processing or transformation is done by the supplier on our behalf. If the goods reserved by us are processed, bonded or mixed with other items not belonging to us, we acquire the co-ownership of the new item in proportion to the value of our own goods to that of the other items at the time of processing, bonding or mixing. If processing, bonding or mixing is done in such a manner that the item of the supplier needs to be considered as the main item, it is agreed that the supplier transfers co-ownership to us proportionately.
2. This provision is also applicable if we refuse acceptance on account of delayed or defective delivery or if we abstain from placing further orders. In such cases, the items provided by us must be made available to us free of charge. If this should not be possible, the supplier is authorised to sell the item only with our prior consent.
XII. Business Secrets
The supplier is obliged to treat all commercial and technical details associated with this contract agreement as business secrets. The supplier is obliged to maintain strict confidentiality of the documentation and information even after the contract agreement has been terminated. Disclosure to third parties should be done only with our consent.
XIII. Place of Jurisdiction, Place of Fulfilment and Miscellaneous
1. All agreements must be made in writing and must be certified by us. This is also applicable to the requirement of the agreement being in writing and to amendments or supplements to contractual agreements.
2. If any specific clauses or other contractual agreements are ineffective or become ineffective, the effectiveness of the remaining contract agreement shall be unaffected by this, unless it is unreasonable for one of the contract parties to abide by the contract agreement. If it is unreasonable for one party to abide by the contract agreement, the parties agree to adopt a clause in accordance with the desired purpose of the contract and equivalent to the clause in question as far as possible.
3. The parties agree that only substantive German law shall be applicable with the exclusion of the UN CISG (Convention on the International Sale of Goods).
4. The place of fulfilment for all services pertaining to the contract agreement is our registered office in Kamen.
5. The Court having jurisdiction is that located at the place of our registered office in D-59174 Kamen. We may also file a suit against the supplier at a Court having jurisdiction at the place of his registered office.