General Terms and Conditions of Purchase
GENERAL TERMS AND CONDITIONS OF PURCHASE FOR GOODS AND SERVICES (GTCP) OF IFA TECHNOLOGY GMBH, A-2012
1. GENERAL, SCOPE OF APPLICATION
1.1 The following General Terms and Conditions of Purchase, as amended, are an integral part of orders placed by IFA Technology GmbH for deliveries and services (uniformly referred to as “services”). They shall apply to companies, legal entities under public law and special funds under public law (contractors).
1.2 By accepting these GPC without objection, the contractor agrees to their exclusive validity for the respective order as well as for any follow-up business, without the need for a new express agreement. If special agreements that deviate from these GPC are made for a specific order, these GPC shall apply subordinately and supplementarily.
1.3 The applicability of any of the contractor's general terms and conditions that deviate from these is hereby also rejected in the event that they are sent to the client in a letter of confirmation or in any other way. The unconditional acceptance of order confirmations and deliveries as well as their payment does not constitute recognition of any of the contractor's deviating conditions.
2. OFFER, COLLATERAL AGREEMENTS, UNAUTHORIZED ADVERTISING
2.1 Oral side agreements and the exclusion, amendment and/or supplement to these GPC require the express written confirmation of the client to be effective.
2.2 The use of orders for reference and/or advertising purposes requires the prior written consent of the client.
3. DRAWINGS, MODELS, TOOLS
The customer retains ownership and/or copyright and/or other property rights to all illustrations, drawings, models, samples, calculations, construction plans and other documents that the customer has provided or paid for in order to execute the order. These documents may only be used for work to complete the order and may not be reproduced and/or made available to third parties without the express written consent of the customer. They are to be returned to the client after completion of the order without request and free of charge. In this respect, the contractor is not authorized to assert a right of retention.
The contractor shall also impose the above obligations on third parties to whom he makes the client's documents accessible.
The contractor is obliged to treat this contract and the information and documents obtained within its framework confidentially and to only make them accessible to third parties to the extent that this is unavoidable for the execution of the contract. The contractor's organs and employees, as well as contractual partners, shall be obliged to maintain confidentiality accordingly.
The contractor shall be liable to the client for all damages arising from a culpable infringement by him or by a third party to whom he has made the information or documents accessible.
4. RESPONSIBILITY FOR TECHNICAL INFORMATION
The client's approval of drawings, calculations and other documents does not affect the contractor's sole responsibility with regard to the subject matter of the contract. This also applies to suggestions, recommendations and other contributions on the part of the client.
5. INSPECTIONS
After timely prior notification, the client or his employees and/or third parties named by him have access at all times to the production stages of the contractor and/or his subcontractors in order to check, among other things, the production status, the use of suitable material, the deployment of the necessary skilled personnel and the professional execution of the ordered service. Such inspections shall be carried out without any legal effect with regard to a possible acceptance; an inspection shall neither replace an acceptance nor shall it in any way limit the sole responsibility of the contractor with regard to his services; in particular, no objection of contributory negligence on the part of the client can be derived from it.
6. SPARE PARTS
The supplier warrants that spare and replacement parts will be available for each order for a period of at least 10 years after the end of the warranty period.
7. TRANSPORT OF DANGEROUS GOODS, LABELING OF HAZARDOUS MATERIALS, PACKAGING
7.1 It is the responsibility of the contractor to check, before accepting the order, whether the items and/or their components mentioned in the order are classified as dangerous goods (e.g. paints, adhesives, chemicals or inflammable, oxidizing, explosive, combustible, toxic, radioactive, caustic goods or goods with a tendency to self-heating). In such cases, the contractor shall inform the client immediately and comprehensively. At the latest with his written order confirmation, he shall send the client the legally required binding declarations for their dispatch, correctly completed and with a legally binding signature.
7.2 When packaging, labeling and declaring dangerous goods, the contractor is obliged to observe the respective national and international regulations, in particular
- sea freight: dangerous goods ordinance - Sea IMDG Code
- air freight: UNICAO IATA RAR US-Do!
- rail: EVO/RID and dangerous goods ordinance - rail
- road: ADR and dangerous goods ordinance - road
- general: dangerous goods ordinance,
Any deviating and/or additional national regulations of the respective country of destination must also be observed if the country of destination has been named in the order.
7.3 The contractor warrants that it will assume all damages that arise as a consequence of incorrect information in the binding declarations or because existing regulations for the handling (packaging, shipping, storage, etc.) of dangerous goods were not observed.
7.4 The contractor will take back packaging material for the client free of charge.
8. EXPORT LICENSE
The contractor is obliged to inform the client in writing at the latest when confirming the order as to whether and to what extent state export licenses are required for the order as a whole or in part, or whether similar legal or official requirements must be met, or whether US export restrictions apply.
9. PRICES, FORMAT OF INVOICES, TERMS OF PAYMENT, DEFAULT
9.1 The agreed contract prices are binding. They are exclusive of the statutory value added tax.
9.2 Unless otherwise expressly agreed in writing, the prices are FCA (named place) in accordance with INCOTERMS 2010.
9.3 Payment shall be made within 14 days of complete and proper fulfillment of the contract and receipt of the invoice with a 3% discount or within 45 days net.
9.4 If advance payments have been agreed, the payment period shall be determined in accordance with Section 9.3, starting from the date of receipt of the invoice. Any agreed advance payments shall not release the contractor from his obligation to claim all services in a specified final invoice.
9.5 Default shall only occur after the due date and only on the basis of an explicit reminder.
9.6 The client shall not be in default of payment if it has made a bona fide error regarding the existence of an objection to the contractor's claims for remuneration or an asserted right of retention.
9.7 If the Client's default in payment is due to simple negligence, default interest shall be limited to 3 (three) percentage points above the base interest rate (Section 247 BGB), unless the Contractor proves that it has incurred higher damages as a result of the default.
9.8 Payments made by the client do not under any circumstances constitute an acknowledgement of professional and flawless performance in the sense of acceptance.
10. OFFSET, RIGHT OF RETENTION
10.1 The client is entitled to rights of set-off and retention to the extent permitted by law.
10.2 Any disputes regarding the amount of remuneration to be paid to the contractor do not entitle the contractor to cease performance, even temporarily, in part or in full.
11. DELIVERY TIME, DELAYED DELIVERY
11.1 The delivery time stated in the order is binding. Early deliveries and/or partial deliveries require the express written consent of the client.
11.2 The contractor is obliged to inform the client immediately in writing if circumstances arise or become apparent that indicate that the delivery time cannot be met.
11.3 If the Contractor is in default of performance, the Client shall be entitled to demand 0.2% of the total contract price for each full calendar week of the missed deadline, but not more than 5% of the total contract price, as a contractual penalty in addition to performance. The assertion of further claims for damages due to delay as well as the assertion of claims for damages in lieu of performance and the right to withdraw from the contract in accordance with the statutory provisions shall remain unaffected. The right of the client to demand the contractual penalty shall remain in force until the final settlement/payment, even if the client has not reserved this right when accepting the performance.
11.4 In addition, and without prejudice to its other rights, the client may, after the expiry of a reasonable period of grace set by it or, if the service is no longer of interest to it due to the delay or in the event of imminent danger or to avoid further damage or in the event of urgency, without having set a period of grace, have the service not yet provided by the contractor carried out by a third party at the expense of the contractor.
In any case of substitute performance by the client, the contractor shall, at his own expense, provide the client with all the information required for this purpose and hand over any documents in his possession. He shall also, to the extent necessary for the substitute performance, obtain the corresponding rights of use for any of his own or third-party industrial property rights in the documents and shall immediately indemnify the client against claims arising from these third-party rights. By concluding this contract, the contractor declares his consent to the use of his property rights in the event of substitute performance by the client or third parties commissioned by him. The claim for payment of the contractual penalty that has already arisen up to the point at which the order is placed with the third party must be fulfilled in any case.
12. ASSIGNMENT OF CLAIMS
Claims against the client may only be assigned with the client's prior written consent. This does not apply to assignments within the scope of an extended reservation of title; § 354a HGB (German Commercial Code) remains unaffected.
13. TRANSFER OF RISK
The contractor bears the risk in accordance with the delivery conditions agreed with him in each case in accordance with Section 9.2.
14. DOCUMENTS
The contractor is obliged to state the client's order number and the contractually agreed designations on all shipping documents and/or delivery notes, otherwise any consequences, e.g. further delays or additional costs, shall be borne by the contractor alone.
15. WARRANTY, COMPLAINT, RECOURSE
15.1 The contractor warrants that its services comply with the recognized rules and the latest state of the art, as well as the standards, regulations and norms (including safety, occupational safety and accident prevention regulations) existing in the country of the contractor and in the country of destination, the agreed properties, have the guaranteed properties and are otherwise free of material defects and defects of title.
15.2 The client is obliged to inspect the service for any defects without delay, in accordance with the circumstances and the climatic and other requirements at the respective place of use, and to notify the contractor of any defects immediately upon their discovery.
15.3 The client is entitled to the statutory warranty claims without restriction, including the rights arising from § 478 BGB (recourse of the entrepreneur).
In any case, the client may, at his discretion, demand that the contractor rectify the defect or provide a replacement. The contractor shall bear all expenses necessary for the purpose of rectifying the defect or providing a replacement.
After notifying the contractor, the client is also entitled to rectify the defect itself at the contractor's expense if a reasonable deadline set for the contractor to rectify the defect has expired without success or if a subsequent performance by the contractor has failed. There is no need to set a deadline if there is a risk of delay or a particular need for urgency. The client may demand advance payment from the contractor for any necessary expenses incurred as a result.
15.4 Insofar as the client is entitled to rectify defects itself in accordance with the above clause 15.3, clause 11 no. 4 shall apply with regard to the contractor's obligations.
All costs incurred in remedying the defect, in particular for dismantling, assembly, travel, freight, packaging, insurance, customs duties and other public charges, testing and technical acceptance, shall be borne by the contractor.
15.5 Unless otherwise agreed in writing, the customer's claims for defects shall become time-barred after 36 months, calculated from the transfer of risk (section 13). If the service is intended for a building and has caused its defectiveness, the limitation period shall be 5 years. Longer statutory limitation periods shall remain unaffected; §§ 438 para. 3, 479 and 634a para. 3 BGB shall also remain unaffected.
15.6 Insofar and as long as the client notifies the contractor of defects in accordance with § 377 HGB, the warranty period shall be extended by the duration of the complete rectification of the defect. If the contractor delivers a new item or new replacement parts under the warranty, the limitation period shall recommence upon the transfer of risk, but shall not exceed five years, or seven years in the case of construction work, from the transfer of risk.
15.7 The provisions of Section 476 BGB shall apply accordingly, whereby the period shall be extended to 18 months.
16. PRODUCT LIABILITY, INDEMNIFICATION, INSURANCE COVER
16.1 If the contractor is responsible for a product defect or the violation of legal/official safety regulations, the contractor shall indemnify the client against any third-party claims for damages upon first written request. In addition, the client is entitled to reimbursement of all expenses incurred by the client, in particular in connection with recall actions initiated by the client as a result. The client shall inform the contractor in advance of the nature and extent of recall actions, insofar as this is possible and reasonable. Further legal claims remain reserved.
16.2 The same shall apply if a subcontractor of the contractor is responsible for a product defect or the violation of stated safety regulations in the context of the service provided by him.
16.3 The contractor is obliged to maintain sufficient insurance against product liability and to provide the client with written proof of this at any time upon request, in particular by means of written confirmation from the contractor's insurer.
17. LIABILITY FOR ENVIRONMENTAL DAMAGE
The contractor warrants that it will assume all damages that arise in connection with its services as a result of a violation of environmental protection regulations (such as emission control laws, waste oil and water management laws, waste disposal laws and/or related ordinances). In this context, the contractor shall indemnify the client against all and any third-party claims for damages upon first written request. In addition, the contractor shall be liable for the damages incurred by the client.
The same shall apply if a subcontractor or sub-subcontractor of the contractor is responsible for such a violation in connection with the service provided by the contractor.
18. FORCE MAJEURE
Only natural disasters and war shall be deemed events of force majeure.
19. PROPRIETARY RIGHTS
The contractor shall be responsible for ensuring that no rights of third parties are violated in connection with the execution of the orders. In the event of any claims by third parties, the contractor shall indemnify the client against all such claims upon first written request. The indemnity obligation shall cover all expenses necessarily incurred by the client as a result of and/or in connection with such claims.
20. SUBCONTRACTING
20.1 The contractor shall require the prior written consent of the client to exercise rights of retention against its subcontractors (subsuppliers, suppliers, planning offices, etc.).
20.2 In order to avoid the exercise of rights of retention by the Contractor's subcontractors, the Client is entitled to make direct payments to the subcontractor, which, insofar as they relate to justified claims by the subcontractor, shall be deemed to be payment in lieu of performance in relation to the Contractor.
20.3 In any case, third parties, in particular subcontractors, used by the contractor to fulfill his obligations under the order or who are otherwise involved by him in connection with his services, are agents of the contractor.
21. PARTIAL INVALIDITY
Should any individual provisions of this contract be invalid, the validity of the remaining provisions hereof shall not be affected. The contracting parties undertake to replace the invalid contractual provisions without delay by means of a supplementary agreement that comes as close as possible to the economic result of the invalid contractual provision.
22. PLACE OF PERFORMANCE
The place of performance for the contractor's services is the agreed place of use; for the client's payments, it is the client's place of business.
23. JURISDICTION, APPLICABLE LAW
23.1 If the contractor is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all types of proceedings is the registered office of the client; the client can also sue the contractor at the contractor's general place of jurisdiction.
23.2 The law of the Federal Republic of Germany, which is decisive for the legal relationships of domestic contractual partners, shall apply without exception; the applicability of the UN Sales Convention is hereby excluded.