General Terms of Purchase 11/2016

1. Scope

 

The following conditions apply exclusively for the legal relationships between the supplier and us in the area of purchase. Our Terms of Purchase apply in business transactions of Albert Handtmann Armaturenfabrik GmbH & Co. KG (purchaser) with companies, enterprisers, legal persons of public law and legal public assets (supplier) for all orders and namely also for future agreements on the supply of goods within the legal relationships between the purchaser and us without the need for explicit reference to the terms of purchase or a new agreement. Conditions of the supplier and deviating agreements do not apply unless we have expressly agreed to their validity in writing. Our Terms of Purchase also apply if we unconditionally accept the supplier's delivery with knowledge of conditions opposing or deviating from our Terms of Purchase.

 

2. Order, conclusion of contract, right of withdrawal

 

2.1. The individual contract on the deliveries or services and any changes, side agreements, explanations on its termination and notifications must be made in writing if not otherwise specified in these Terms of Purchase. We are bound to the order with the supplier for one week from receipt of the order by the supplier.

2.2. The supplier will ensure that it is aware of all data and circumstances which are relevant for the fulfillment of the contractual duties and the intended use of its deliveries in a timely manner. Quotations are at no cost to us.

2.3. The supplier shall ensure a precise inspection of the local circumstances before submitting a quotation and that it has reviewed the documents and is clear on the implementation of the services and compliance with the technical and other regulations. The supplier shall review any transferred documents, also with regard to the local circumstances, for correctness, feasibility and any work performed in advance by third parties. The supplier must notify us immediately in writing about concerns of any type. provide the reasons, and work to reach an agreement with us on the scope of services to be offered in the quotation. This applies in a similar manner for any concerns arising during the fulfillment of the job.

2.4. We are authorized to withdraw from the contract completely or in part without compensation while maintaining our own claims if the creditworthiness or delivery capacity of the supplier has demonstrably deteriorated in a manner which jeopardizes the fulfillment of the contract, the supplier stops its payments, or if insolvency proceedings are applied for with regard to the supplier's assets. 

 

3. Prices, terms of payment

 

3.1. If not otherwise agreed on, the prices are fixed prices. If not otherwise agreed on in writing, the price shall include all auxiliary costs, packaging and delivery DAP to specified location, Incoterms 2010, duty unpaid.

3.2. The payments shall be made exclusively in Euro. The sales tax to be paid must be indicated separately. It will be paid in the legally prescribed amount.

3.3. If not otherwise agreed on, the payment shall be made at our discretion either within 14 calendar days with 3% discount or within 30 days without discount. A discount deduction is also permitted if the purchaser sets off or withholds payment due to defects; the payment period shall begin following complete remedy of the defect. The payment period begins with the receipt of the contractual service and a proper and auditable invoice containing all essential order data (order number, order item, name of the purchaser, unloading site, supplier number, item number, unit quantity, individual price, and the quantity per delivery. 

The later date in each case shall be deemed the start of the payment period. The invoice must conform to the requirements of the sales-tax law. If these data are missing or if other reasons make a simple audit impossible, the payment period will not begin and no payment shall be due. Incorrect invoices shall be returned to the supplier for correction and the payment periods shall not begin until the invoice is resubmitted.

3.4. The supplier is not authorized to surrender claims against us or have them collected by third parties without our prior written consent. This does not apply for legally established or undisputed claims. The regulation of § 354a HGB shall not be affected by this.

3.5. We are also authorized to set off claims against the supplier with claims due to a company associated with us in terms of § 15 AktG (Stock Corporation Act). We are further authorized to set off our claims against claims held by the supplier against a company associated with us in terms of § 15 AktG (Stock Corporation Act). We are entitled to the rights of offsetting and retention in the legal scope.

 

4. Delivery modalities, delivery deadlines and consequences of delays

 

4.1. The deliveries/services must be made to/at the specified shipping addresses. The delivery/service to/at a destination other than that specified by us does not cause a transfer of risk at the contractor's expense even if this location accepts the delivery/service. The contractor shall reimburse any additional costs to the customer which result from the delivery/service to/at a destination other than that agreed on. The supplier shall be obligated to specify our order number, item number and supplier number on all shipping papers and delivery notes. If this is not done, then delays in processing will be unavoidable and not attributable to us.

4.2. The delivery and performance deadlines indicated in the order are goods receipt deadlines and are binding. The supplier must notify us immediately in writing of any recognizable delays in its performance and other postponements as well as a recognizable incapacity of the supplier to provide the agreed quality. The reason must be indicated along with the expected duration of the delay and the deliverable quality. Such notifications of the supplier, however, shall not cause any unilateral changes to the delivery and performance deadlines or the quality requirements.

4.3. Partial deliveries shall only be permitted with our explicit consent. If the supplier culpably misses the agreed delivery deadline, then the supplier must pay a contractual penalty to us of 0.5% of the affected merchandise value for each started week that the deadline is passed, but not more than 5% of the affected merchandise value. We can demand a damage flat-rate of 1% of the affected merchandise value for losses caused by delays, whereby the supplier shall have the opportunity to provide evidence of lesser or non-existent loss. A contractual penalty shall be credited to any damage flat-rate or higher delay damage claim; the same shall apply for the damage flat-rate for the enforcement of a concretely calculated delay damage. We reserve the right to assert a damage-compensation claim extending beyond the contractual penalty and the damage flat-rate.

4.4. If the supplier does not meet the agreed deadlines, then we are authorized regardless of further legal regulations and after setting a reasonable grace period to withdraw from the contract, conclude hedging transactions and/or demand compensation for damages due to non-fulfillment. We have a claim to compensation for all additional costs incurred by us due to late deliveries or delayed services.  

4.5. We are authorized without prior notification of the supplier to remedy defects ourselves or have them remedied at the supplier's cost if this is necessary to avert acute danger or to prevent considerable damage due to interruptions in our operating processes. This applies solely if these circumstances make it no longer possible to notify the supplier and to set a deadline for said supplier to provide its own assistance.

4.6. The unconditional acceptance of late deliveries and services and their unconditional payment do not constitute a waiver of the compensation due to delays, to which we are entitled.

4.7. The supplier must clarify the required official permits and registration requirements to us for the import and use of the delivery objects.

4.8. The supplier must provide proof of preference for deliveries from preferred countries (e.g. EUR.1 or declaration of origin on the invoice) with every delivery. The supplier must provide long-term supplier declarations in accordance with the implementation ordinance (EU) 2015/2447 (UZK IA) for deliveries within the European Union and within Germany.

Non-preferential proof of origin, e.g. in the form of origin certificates must be provided on request.

5. Subsuppliers

 

5.1. The supplier or contractor is not authorized to assign the fulfillment of the respective agreement completely or partially to third parties without our prior written consent. The supplier or contractor is required to name its sub-suppliers to us on request.

 

6. Compliance with regulation, evidence

 

6.1. The supplier guarantees compliance with all legal regulations. Primarily in the case of installation and assembly work by the supplier, the supplier shall be responsible for all accident-prevention regulations, the German occupational safety regulations and the like, and our operating regulations or the factory regulations of our final customer. The "Operating ordinance for external companies", which will be provided to the supplier on request, applies for all services on our operating premises. The supplier must follow the factory-security instructions.

6.2. The supplier is required to particularly meet all legal requirements originating from the EU regulations on chemicals protection (REACH) (especially registration, notification and permit duties). The supplier shall provide us in accordance with Art. 3 of Ordinance 1907/2006 EG (REACH regulation) adequate product information for safe use in accordance with Art. 57 of the REACH Regulation. The supplier will notify us immediately if the REACH regulation results in changes in the availability or intended use of materials, components, assemblies or final products or if we are required to take any actions.  The supplier will also pass the duties specified in this article on to its subsuppliers.

6.3. The supplier shall also be obligated to take all required actions to ensure that the parts and/or devices delivered to us meet the requirements of the EU directives on the take-back of used equipment (WEEE) and for material bans and materials requiring declaration (ROHS, GADSL list) and the corresponding national regulations in the EU member states. This particularly applies for equipment labeling, the avoidance of banned materials and the provision of information for disposal companies. The supplier is required to obtain our written consent before making any changes required to the delivered parts and/or devices for meeting the specified legal standards.

 

7. Quality assurance and complaints

 

7.1. If a quality assurance agreement exists between us and the supplier, then the regulations contained therein for defect inspection and defect-reporting duties and the following regulations shall apply if they do not oppose the quality assurance agreement.  

7.2. If no quality assurance agreement has been concluded between us and the supplier, then the supplier shall be obligated to set up, maintain, and implement a quality assurance system suitable for the type and scope and corresponding to the state of the art. The supplier must create records, particularly about its quality tests. The supplier will send us a copy of each applicable certification of its quality assurance system on request. The supplier consents to quality audits by us or by a party appointed by us for evaluating the effectiveness of its quality assurance system.

7.3. To the extent that the commercial inspection and complaint-reporting duty apply, we will check the goods only for identity, quantity and visible transport damage. The supplier shall recognize this. The complaint has been made on time if it is received by the supplier within 14 days, calculated from the receipt of the goods, or in the case of hidden defects, from the date of discovery. For defects reported within the statute of limitations, the deadline shall be no earlier than six months from the remedy of the defect. The supplier shall waive any objection to later complaints (§§ 377, 381 Abs. 2 HGB) for defects which are not obvious.  

 

8. Guarantee

 

8.1. The supplier ensures that the delivery or service is of the agreed quality, meets its intended purpose, corresponds to our approved specifications, samples, or the like, meets the applicable standards, particularly DIN standards, EC standards, etc. and the requirements of the authorities and professional associations, the state of the art, the German and European safety regulations and – if possible – bears the CE symbol and a declaration of conformity. The same shall apply for the performance data and other properties contained in the supplier's order confirmation.

8.2. We are fully entitled to the legal defect claims; regardless of these, we are generally authorized to demand a remedy of the defect or a replacement delivery from the supplier. In this case, the supplier is required to bear all expenses for the purpose of remedying the defect or providing a substitute delivery. We expressly reserve the right to damage compensation, particularly to damage compensation instead of the service. In compliance with the legal requirements, we are authorized to withdraw from the contract, to reduce the purchase price and to demand compensation for damages and/or reimbursement of futile expenditures. Any costs incurred by us as a result of deficient delivery/performance, such as transport, travel, work, and material costs and contractual penalties must be paid by the supplier.

8.3. Our acceptance and/or payment of the delivered goods also does not represent any waiver of our warranty rights if we were aware of the defect at the time of acceptance of the goods and/or payment.

8.4. The statute of limitations for liability claims for defects starts with the complete delivery/performance of the scope of delivery/service or, when an acceptance is agreed on, with the acceptance.

8.5. Claims to compensation for damage lapse in 36 months; this has no impact on longer legal statutes of limitations. For newly delivered/performed or improved parts, the statute of limitations starts anew if the supplier has not eliminated the defect expressly out of goodwill.  

 

9. Legal minimum wage (MiLoG), German Posted Workers Act (AEntG), Ban on illegal employment, Compliance with anti-corruption and cartel law

 

9.1. The supplier/contractor must ensure that employees hired by it or its subcontractors or personnel service providers for executing the contract concluded with us receive the legal minimum wage in accordance with MiLoG or, if the services to be provided fall under scope of the AEntG, the respectively prescribed minimum wage for the industry. The supplier/contractor must also ensure that mandatory duties will be complied with to pay contributions to social-security providers, trade associations and other institutions such as those joint institutions of the collective bargaining parties mentioned in §8 AEntG. No illegal employment of any kind is permitted.

9.2. The supplier/contractor will verify the fulfillment of the pre-conditions when selecting subcontractors or personnel service providers and commit them to compliance with these conditions in writing. Moreover, said supplier/contractor must obtain written confirmation from these parties that they will demand compliance with the requirements from their own subcontractors or personnel service providers.

9.3. The supplier shall ensure that no actions will be taken or omissions made by the supplier, the persons employed by the supplier or third parties contracted by the supplier which can result in regulatory or criminal penalties, particularly due to corruption or violation of cartel and competition law. It is the supplier's responsibility to take suitable actions for preventing violations. The supplier will particularly commit its own employees or contracted third parties to this accordingly.

9.4. The supplier will notify us immediately about the launching of official investigations due to a violation. We shall also be authorized if a violation by the supplier is indicated to demand written information about the violation and the actions taken to remedy it and prevent it in the future.

9.5. In the case of a violation, we shall be authorized to demand that the supplier stop this violation immediately and reimburse all resulting damages.

9.6. Moreover, the contractor shall be liable to us for all damages incurred due to culpable non-compliance with the duties specified in Art. 9.1, 9.2 or 9.3,

9.7. We are authorized to terminate the agreement with the supplier/contractor without prior notification if claims are justifiably made against us from the liability as guarantor in accordance with MiLoG or AEntG.

10. Transfer of risk and transfer of ownership

 

10.1. If an acceptance must be made, then this is decisive for the transfer of risk.

10.2. The delivered goods shall be transferred to our unlimited ownership no later than with their payment. Further-reaching retention of title, particularly the so-called expanded or extended retention of title is excluded in all forms.

 

11. Right of ownership and duty of secrecy

 

11.1. The supplier will treat all information provided by us such as any drawings, films, documents, knowledge, prototypes, production equipment, models, data carriers, etc., as confidential. Said supplier will not make this information accessible to third parties (including subcontractors) and will not use the information for purposes other than those specified by us without our written consent. This applies accordingly for reproductions. This duty does not apply for information which was already known to the supplier or contractor upon receipt in a justifiable manner without the duty of secrecy or was made known to it without a duty of secrecy, which - without a contractual violation of one of the parties - is generally known or becomes known or for which permission for another use was granted. The supplier must not advertise its business relationship with us without our prior written consent.

11.2. We reserve the right to ownership and all other rights (e.g. copyright, brand, patent, and similar rights) to the information, drawings, films, models, prototypes, objects, tools, and technical applications provided to us. They may be used solely for carrying out the specific concrete job. The forwarding to third parties, other publication or the use for one's own purposes requires our express prior written consent. Reproductions, with the exception of hard copies according to the "Need To Know principle" to an employee involved with the project may only be made following our prior written consent. The copies become our property when they are made. It is agreed between us and the supplier that the supplier will store the copies for us. The supplier must carefully store the documents, objects provided to it and their copies at its own costs. It must maintain them, secure and label them clearly as belonging to us, and return or destroy them at our request at any time. The supplier shall not be entitled to any right to retention. The complete return or destruction must be ensured in writing.

11.3. Objects or the like which have been completely produced at our costs, e.g. molds, tools, devices, shall be transferred to our ownership no later than with the full payment if not otherwise agreed on. In the case of objects manufactured in part at our own costs, we shall be entitled to compensation when the supplier demands their return for the cost component not yet covered by us if this is demanded by the supplier.  

11.4. Our documents, objects and materials in terms of Art. 1.1. which we have surrendered to the supplier or contractor must be adequately insured at the cost of the supplier. The supplier is liable for their damage or loss while these objects are located with the supplier, its subcontractors or in transit arranged by the supplier. At the same time, the supplier shall now assign all damage claims from this insurance and against third parties to us; we herewith accept this assignment.

 

12. Provision of material

 

12.1. The materials, parts, containers, special packages, tools, measuring equipment or the like (accessories) provided by us remain our property. Processing or restructuring by the supplier will be done for us. In the case of processing, restructuring, or mixing of our conditional goods with other objects not belonging to us, we shall acquire joint ownership of the new item at a ratio of the value of our item to the value of the complete product at the time of processing or mixing.

12.2. If the items are mixed in a way that the supplier's item is deemed the main item, it is then agreed that the supplier will transfer us partial ownership; the supplier shall ensure the sole ownership or joint ownership for us. The supplier shall not be entitled to any right to retention of the accessories.

 

13. Third-party protection rights

 

13.1. The supplier shall be liable for ensuring that no third-party rights (especially patents, utility samples, registered designs, copyrights or other rights) are violated; this does not apply if the violation of the rights cannot be attributed to the supplier. This liability applies to all member states of the European Union, the other contractual states of the Agreement on the European Economic Area, Switzerland and the United States.

13.2. We are not required to carry out investigations as to whether third-party protection rights exist. If we are sued from a third party due to a violation of such rights, for which the supplier is responsible, the supplier shall be required to release us from all third-party claims at our first request; this also includes the averting of threatening claims and actions of third parties. The supplier's liability shall also include such damage, especially consequential damage resulting from supplier bottlenecks and production disturbances and the reasonable costs of any required legal defense.

 

14. Product liability, exemption

 

14.1. If the supplier is responsible for product damage, it shall be required to release us from any third-party compensation claims (due to violation of the legally protected rights to life, limb, health or property) at our first request when the cause is found in said supplier's sphere of power and organization and it is liable itself in the external relationship. 

14.2. In this scope, the supplier shall also be required to reimburse any expenses which result from or are connected with a recall action conducted by us if the claim does not result from §§ 830, 840 ff. BGB in connection with §§ 426, 254 BGB. We will inform the supplier about the scope and content of the recall actions to be implemented – if possible and reasonable – and provide them  with the opportunity for comments.

14.3. The supplier commits to maintaining adequate product liability insurance with sufficient coverage for the duration of the business relationship and contracts, i.e. until the statute of limitations for defects and liability expires, whereby the legal regulations such as the Product Liability Act (ProdHaftG) must be particularly considered. Such an insurance policy is reasonable if the personal injury and material damage including the costs of a recall are insured to a minimum coverage of € 10 M per damage case. This insurance does not represent any limits on liability in favor of the supplier.

14.4. The supplier shall provide evidence to us every year of the existence of insurance coverage of the product liability insurance designated in Art. 14.3 by providing an insurer's certificate.

 

15. Final provisions

 

15.1. The contractual relationship shall be governed solely by German Law without the regulations of private international law. The United Nations Convention on the International Sales of Goods (CISG) does not apply in any way.

15.2. The place of fulfillment for the deliveries and services, if the order does not indicate otherwise, shall be our headquarters in Biberach. The place of fulfillment for payments is always our headquarters in Biberach.

15.3. If the supplier is a merchant, Biberach an der Riss is agreed on as the place of jurisdiction, subject to a different exclusive place of jurisdiction. We shall also be authorized to sue the supplier at their own headquarters or at any other permissible place of jurisdiction.

15.4. If a provision is or becomes ineffective, the validity of the other provisions will not be affected.

15.5. The German version of these General Terms of Purchase is decisive.