General terms and conditions

Terms of sale, delivery and payment of
Gebr. Kemper GmbH + Co. KG, Olpe

I. Applicable terms, contract conclusions

1.
All orders are exclusively subject to the following terms. Any other terms and conditions are not valid even if we do not waive these explicitly and deliver without expressing reservations. By placing the order and/or accepting the delivery, the purchaser acknowledges acceptance of our terms of sale, delivery and payment.

2.
An order becomes binding following our written confirmation or by commencement of the execution of the order. All agreements made between us and the purchaser concerning carrying out the contract shall be confirmed in writing in this contract. Any changes, amendments or other side agreement require our written confirmation.

II. Quotation, cost estimate, dimensions, weights, quantities

1.
Our quotations as well as any prices and delivery terms quoted in our catalogues, leaflets, correspondence etc. are without commitment unless the order confirmation provides otherwise or we have specified otherwise in writing. Cost estimates are provided without obligation.

2.
Any attached documents including pictures, drawings, weights and dimensions are approximate values as is customary in the industry unless identified as being binding. In particular for fittings we reserve the right to make variations in dimensions and materials. If flow capacities and resistance coefficients of our fittings are quoted in our catalogues, these values are provided only for the purpose of selecting the appropriate product and its size or to give an indication of the capacity of the pump to be installed.

The pressures and temperatures quoted in our tables only apply up to a nominal width of ND 80. Other pressures and temperatures require special designs which lead to price increases.

For special designs, the purchaser shall precisely specify the pressure, the liquid and the temperature.

3.
We reserve the property rights and copyrights to pictures, leaflets, calculations and other documents; these must not be disclosed to third parties. This applies in particular to written documents, which are identified as "confidential" and prior to disclosing these to third parties, the purchaser must seek our explicit written approval.

4.
Deviations of dimensions, weights and quantities, which are within normal commercial tolerances, and applicable DIN standards and which meet foundry requirements are permissible. Dimensions and weights specified in our quotations and order confirmations are not guaranteed.

5.
Invoices are based on the delivery weights and quantities determined by us.

III. Prices, price revision

1.
Our prices are in Euro on an ex works basis plus VAT at current rate, without packaging, freight, customs duty and insurance which are invoiced separately as applicable.

2.
For all orders including make-and-take orders and contracts for delivery in instalments where the contract provides or the purchaser has specified that delivery or partial delivery takes place more than four months after order placement, we are entitled to make an extra charge for any material and wage increases which occur between the dates of contract conclusion and delivery to compensate for such increases.

3.
Prices agreed for re-work orders are subject to the purchaser providing the required re-work material six weeks prior to the delivery date, carriage paid. Otherwise we may source the required material at the purchaser's expense at the price prevailing on the date of purchase.

IV. Delivery, packaging, cost, transfer of rist

1.
Delivery is made at the purchaser's expense and risk. Unless otherwise agreed in writing, delivery is made ex works (Incoterms 2010). This also applies if we have accepted to pay the carriage. Even in the case of carriage paid deliveries, we assume no liability for damage or loss occurring during transport. Unless otherwise agreed, we select the packaging material and the means of transport.

2.
Goods for which readiness of despatch has been notified should be picked up immediately, otherwise we may at our discretion despatch them or store them at the purchaser's risk and for usual forwarding agents' costs. One week after commencement of storage, the goods shall be deemed to have been delivered. If despatch is delayed for reasons which are not attributable to us, the risk shall be transferred to the purchaser on the day of notification of readiness for despatch.

3.
By delivering the goods to the railway terminal, the forwarding agent or the freight carrier, or one week after commencement of storage, however at the latest at the time of leaving the works or the warehouse, the risk shall be transferred to the purchaser, even if we have accepted to make delivery.

V. Terms of payment and consequences of non-compliance, offset

1.
Our outstanding accounts are payable in the manner defined in the agreed terms of payment and the data quoted in the order confirmation, respectively. After the due date, we will charge interest at the rate of 8 percentage points (for private customers: 5 percentage points) p.a. above the applicable base rate.

In the absence of any special agreement or statement in the order confirmation, our outstanding accounts are payable net within 30 days of receipt of our invoice or similar list of accounts receivable free of postage and costs, however at the latest 30 days after the due date and receipt of the consideration. After that, we will charge interest at 8 percentage points (for private customers: 5 percentage points) p.a. above the applicable base rate

2.
For bills and cheques, payment shall be deemed to have been made only after their encashment. Discounts and fees are at the purchaser's charge.

3.
Bills and cheques are only accepted in lieu of payment; bills require a special agreement. Irrespective of the term of bills or any agreed deferment of payment, our outstanding accounts become due immediately if the purchaser fails to comply with our terms of payment or if we learn of circumstances which cast doubt on his or her creditworthiness. In such a case we are also entitled to make deliveries only against payment in advance, or against guarantees, or to withdraw from the contract after an adequate period of grace and/or to claim compensation.

4.
The purchaser may only set off counterclaims against our accounts receivable, which are uncontested or legally enforceable.

VI. Terms of delivery and liability, obligation to accept blanket orders and make-and-take-orders, returns

1.
The delivery period starts once all design details, in particular technical matters, have been clarified, both parties have agreed on all contractual terms and the purchaser has made any agreed down payment. The delivery date is deemed to have been met if the goods have left the works or the purchaser has been notified of their readiness for despatch at any time before the delivery date.

Unless otherwise agreed or otherwise provided for in the contract, our delivery terms are quoted without commitment.

2.
If our delivery is not made in good time and is not made within a period of grace granted by the purchaser for reasons which are attributable to us, the purchaser may withdraw from the contract with respect to the ordered goods.

3.
Any claims for damages due to late performance or non-performance of the contract is subject to the following: If we are in default due to slight negligence, the purchaser's claim for damages, which must be demonstrated, is limited to a compensation payment for late delivery of 0.5% per complete week of delay, up to a maximum of 5% of the invoice value of that part of the order which is subject to delay.

If the purchaser is entitled to damages instead of the goods, we shall, for sales to private customers (§ 13 BGB, German Civil Code) and in the event of infringement of the principal contract duty, be liable to damages also in the case of slight negligence; any claims shall be limited to compensation for any damage which was foreseeable at the time of contract conclusion. Sales to a corporate customer are subject to the same provision but claims are limited to fifty percent of the order value.

4.
Acts of God or circumstances beyond our control (e.g., breakdown, strike) which impede punctual fulfilment of the order entitle us to be granted an appropriate period of delay for the fulfilment of our obligations or, if fulfilment has become impossible, to withdraw from the contract in whole or in part. The same applies if materials ordered from suppliers, which are needed for execution of the order, are not delivered or not delivered in good time for reasons beyond our control. A withdrawal from the contract requires that we inform the purchaser immediately of the lack of availability and refund any payments made by the purchaser without delay. Any claims for damages are excluded.

5.
Partial deliveries up to 10% are permissible unless the purchaser has waived our right to make partial deliveries in the order.

6.
If despatch is deferred at the purchaser's request, the purchaser will be invoiced for any storage costs starting one month from the date of notification of readiness for despatch; for storage in the supplier's works, at least 0.5% of the total invoice value of the goods concerned will be charged per month. The supplier may, after expiry of an adequate period without delivery taking place dispose otherwise of the delivered goods and may then supply the purchaser with an appropriately extended delay.

7.
Any agreed delivery times and deadlines shall be extended or prolonged notwithstanding our rights in the event of a failure of the purchaser during the time that the purchaser is in default with his or her obligations. If the purchaser fails to make acceptance, unjustifiably or culpably infringes other obligations to co-operate, we may request compensation for damage incurred to us including any extra costs. In this case, the risk of accidental loss or accidental deterioration of the purchased goods shall be transferred to the purchaser at the point in time when he or she is in default of acceptance. In the event of a purchaser's default in acceptance, we may refuse to make further deliveries.

8.
Blanket orders and make-and-take-orders must be called off within 8 months from the date of order confirmation. The delivery period must not exceed 3 months. If orders are not called off within the above stated period, we are entitled, after having granted a reasonable period of grace, to withdraw from the contract and to claim damages for non-performance.

9.
Goods may only be returned by prior agreement. If goods are returned against credit note, a 20% handling fee will be deducted. If goods subject to retention of title are returned, we may request loss-of-use indemnification or compensation for depreciation of goods during the time of possession by the purchaser.

VII. Notice of defect, warranty claim, liability

1.
Notwithstanding any other verification and notice obligations applicable to mutual commercial transactions (§ 377 HGB), the purchaser has to check delivered goods for obvious defects and notify us of any complaints resulting from such defects within a period of four weeks following receipt of goods (this also applies to incomplete or incorrect shipments). Defects which only become apparent later must be notified in writing within four weeks of their detection by the purchaser; otherwise the goods shall be deemed to have been accepted notwithstanding the obvious defects and the purchaser may not assert any rights against us. This does not apply in the event of a direct sale to a private customer.

In the event of justified notices of defects, we are obliged to provide free of charge rectification of the delivered goods or replacement at our discretion. When selling to private consumers whether directly, or through our follow-up contractor in the supply chain, the consumer or follow-up contractor is entitled to select either rectification or replacement. If rectification or replacement fails despite two attempts, or if we inappropriately refuse to provide rectification or replacement, or if we delay rectification or replacement in an unacceptable manner, the purchaser may claim a reduction in the sum payable or cancellation of the contract at his or her discretion.

2.
Unless otherwise provided in paragraph VIII (Other liability), claims for damages are subject to the following conditions: For sales to private consumers, whether directly or through follow-up contractors, we shall be liable to pay compensation for damage in the case of an infringement of the principal duty under the contract even in the event of  slight negligence; any claims shall be limited to compensation for any damage which was foreseeable at the time of contract conclusion unless we have fraudulently concealed the defect or have specifically guaranteed the condition of an item. Sales to corporate customers are subject to the same provisions but in such cases claims are limited to fifty percent of the value of the defective items. In this event, the first condition applies if a private consumer purchases the goods and asserts claims resulting from a breach of duty.

3.
If a defect arises from the non-compliance with operating, maintenance or installation instructions, improper or incorrect use, defective or negligent handling by the purchaser, natural wear and tear or intervention in the delivered goods by the purchaser or by third parties, any claim for damage shall be excluded.

VIII. Other liability (disclaimer)

1.
Except for the above claims resulting from delays and defects, no further liability is assumed unless damage is due to gross negligence on our part or intentional or is a grossly negligent breach of duty by our legal representatives or agents, or if damage results in loss of life, injury or impairment of health and is due to gross negligence on our part or intentional or a negligent breach of duty by our legal representatives or agents, or if the damage concerned is such that can usually and typically be insured by us covering third party liability under acceptable conditions.

This applies in particular to claims for damage resulting from faults prior to or at the time of entering into the contract, infringement of secondary obligations and claims resulting from illegal acts.

2.
Claims based on the Product Liability Act (ProdHaftG) or on a guarantee shall remain unaffected.

IX. Limitation of time, terms

1.
Claims resulting from paragraph VII clauses 1 and 2 shall lapse one year after delivery to the purchaser.

2.
This provision shall not apply if longer periods are prescribed by law to cover the following:

  • Intentional, fraudulent or grossly negligent breach of duty by us, our legal representatives or agents;
  • Damage resulting in loss of life, injury or impairment to health which are due to negligence on our part or intentional or negligently breach of duty by our legal representatives or agents;
  • Claims resulting from a guaranteed property of an item;
  • Direct sales to a private consumer;
  • If we are obliged to refund costs which the purchaser has to bear for a private consumer and/or follow-up contractor in the supply chain as a result of the sale of a new item under subsequent performance obligations (§ 478 Abs. 2 BGB);
  • If items delivered by us have been used for a building in compliance with their standard pattern of use and have caused defects to such building, and the contract was not based on part B of the Verdingungsordnung für Bauleistungen (standard building contract terms).

3.
For all cases, the statute of limitation shall commence in line with legal provisions. The legal provisions regarding suspension of expiry ("Ablaufhemmung"), suspension ("Hemmung") and recommencement of limitation periods remain unaffected. Claims based on the Product Liability Act (ProdHaftG) are subject to the legal limitation periods. The legal limitation periods also apply in the event of intentional or grossly negligent breach of duty.

4.
If we are liable pursuant to paragraph VIII because damage is involved which can normally and typically be insured by us covering third party liability under acceptable conditions, the limitation period shall be 1 year.

X. Industrial property rights, dies, models and drawings

1.
If delivery is made according to drawings or other specifications provided by the purchaser, he or she is responsible for its correctness and for non-infringement of third party industrial property rights; he or she shall indemnify us from any and all claims by any owner of industrial property rights.

2.
Any tools, moulds, models and jigs, which are needed for production of the ordered goods, can be invoiced by us in whole or in part. They remain our property even if we have produced them for an order placed by the purchaser and/or the purchaser has paid them in whole or in part. If such items are produced according to specifications submitted by the purchaser, they are exclusively used for making deliveries to the purchaser as long as he or she complies with his or her acceptance and payment obligations and throughout the period of the business relationship.

3.
The costs of maintenance, modification and use of models and dies including follow-on moulds shall be borne by the purchaser. If such models and moulds are provided by the purchaser, he or she shall be liable for the correct design from a casting perspective and for the suitability of the models and dies for the intended purpose. Except in the event of a written agreement, we are not obliged to check the compliance of dies provided with attached drawings. Any production equipment which is provided by the purchaser may be modified by us if we deem this to be necessary for technical reasons and if the workpiece is not affected thereby. Models, moulds, diecasting equipment and other materials, which are provided by the purchaser, will be stored by us with the required care. In the event of loss of these items, we do not assume any liability including liability for consequential damage unless we, our legal representative or agent are liable due to intentional, fraudulent or grossly negligent breach of duty.

4.
The costs for modifications, maintenance and replacement of production equipment shall be borne by the purchaser.

5.
Any drawings and documents delivered by us to the purchaser must not be disclosed to third parties without our written agreement. We are entitled to request return of such drawings and documents at any time.

XI. Retention of title

1.
We reserve ownership of delivered items (goods subject to retention of title) until all our claims against the customer to arise from the business relationship have been met, including claims arising in future, and also from contracts entered into at the same or a later time. In the case of open accounts, the reserved property and all rights are effective as security for all our outstanding balance claims along with interest and costs.
In the case of seizure or other third-party interventions the customer is required to inform us immediately.

2.
The customer is entitled to process and resell the delivered items in the proper course of business. This entitlement ends as soon as the customer defaults in payment or suspends payments or if insolvency proceedings are applied for with respect to the customer’s assets. The customer is required to only resell goods that are subject to retention of title under retention of title and ensure that the claims arising from their resale are transferred to us in compliance with sections 5 and 6 of this document. The use of goods subject to retention for performing work contracts and contracts for work and materials is also regarded as their resale. The customer is not entitled to dispose over these goods in any other way such as pawning or mortgaging of goods, in particular.

Assignment of claims arising from the resale of our goods subject to retention of title is not permitted except in the case of assignment by way of genuine factoring that is reported to us and where the factoring proceeds exceed the value of our secured claim. Our claim becomes due immediately upon the factoring proceeds being credited.

3.
The processing or machining of goods subject to retention of title does not confer ownership of the new item as per section 950 of the Civil Code BGB on the customer. Any processing and machining as well as restructuring of these goods by the customer is always carried out in our name and on our behalf, but without establishing any obligation on our part. The processed and machined goods are regarded as goods subject to retention of title from this time on.

4.
If goods subject to retention of title are processed, combined or blended with other goods, we shall be entitled to co-ownership of the new item in the same proportion as the ratio between the invoice total of the goods subject to retention and that of the other goods used. If our ownership expires due to combining, blending or processing, the customer herewith transfers the ownership or expectancy rights held with respect to the new stock or article to the extent of the invoice amount of the goods subject to retention of title, and in the case of processing in the proportion of that invoice amount to that of the other goods used, and stores them for us free of charge. Our co-ownership rights are regarded as goods subject to retention of title.

5.
The customer’s claims arising from the resale of goods subject to retention of title are herewith assigned to us. They serve as collateral to the same extent as the goods subject to retention of title.

6.
If the goods subject to retention of title are resold together with other goods, the claims arising from this resale are transferred to us in the same ratio as that of the invoice amount of the goods subject to retention to that of the other goods. In the case of goods being resold that we have co-ownership of pursuant to section 4, the part of the claims transferred to us corresponds to our share in the joint ownership.

7.
In case of a safeguarding event (objective non-solvency, non-payment, suspension of payments, insolvency, etc.) the customer is required to provide us with an exact list of the customer’s claims including names and addresses, to immediately inform the customer‘s clientele of the assignment, and to supply us with all the information required to assert the transferred claims.

8.
If the total value of the collateral provided exceeds the collateralized claims by more than 20 % we shall be required, at the customer’s request, to release collateral of our choice to the extent of the excess in consideration of the customer’s interests.

9.
In the case of bills of payment, cheques, etc., payment only counts as effected once the bill or cheque etc. has been honoured by the customer on a secured basis. We only accept cheques on account of performance. Payments made against the provision of a bill of exchange issued by us only count as effected once recourse to us on this bill of exchange and/or cheque is excluded. The securities granted to us continue to exist up to this point in time without prejudice to any further security rights we may have.

10.
The retention of title enables us to demand surrender of a delivered item after having withdrawn from the contract. We are entitled to withdraw from the contract regardless of any further requirements defined in BGB section 323from that point in time at which the customer enters into complete or partial default with regard to the payment, and our right of withdrawal can in particular be exercised without setting any further deadline. The same applies if the customer suspends payments, or if insolvency proceedings are applied for with respect to the customer’s assets. All costs incurred by repossessing delivered items are borne by the customer. We are entitled to utilize repossessed delivered items at our own discretion. 

XII. Place of performance, place of venue, applicable law

1.
The place of performance shall be our headquarters unless otherwise specified in the order confirmation.

2.
The place of venue for contracts with traders and legal entities shall be the court competent at our headquarters. However we may also institute legal proceedings against the purchaser at the court competent at his or her headquarters.

3.
The privity of contract between the parties is exclusively based on German law waiving the United Nations Convention On Contracts For The International Sale Of Goods (UNCITRAL/CISG).

XIII. Privacy

We may process the purchaser's data received for the purpose of or in connection with the business relationship in the sense of the Bundesdatenschutzgesetz (Federal Data Protection Act) and other data protection provisions, irrespective of the source of data.

XIV. Severability

If any provision of these terms and/or other agreements are or become unenforceable, the applicability of the remaining contract shall not be affected. The contract parties are obliged to replace the unenforceable provision by a stipulation which comes nearest to the economic purpose of the original term.

Conditions of purchase of Gebr. Kemper GmbH + Co. KG, Olpe

I. General
Our orders are exclusively based on the following terms and conditions. Any contradicting terms of delivery are not valid even if we do not explicitly waive them. By accepting an order and/or a delivery, the supplier thereby accepts our conditions. Acceptance of goods or payment on our part does not imply acceptance of the supplier's sales conditions.

II. Quotation, conclusion of the contract

1.
Only written orders are binding. Orders placed by word of mouth or on the phone must be confirmed in writing in order to become effective. This also applies to any changes, amendments or side agreements.

2.
If our order is not accepted in writing within ten working days or within the period stated on the order, we are entitled to revoke it. Obvious typographical errors or faults in calculations in our orders or in other statements may be corrected by us any time also after conclusion of the contract without any obligation on our side.

3.
Quotations are provided free of charge and must be submitted in good time. Any visits necessary to discuss or clarify matters relating to a contract shall not be subject to a charge.

4.
The supplier is bound by the conditions of his or her quotation; this also applies to drawings, illustrations, dimensions, weights and other performance data.

5.
We may request modifications to the ordered items even after conclusion of the contract provided these are reasonable. Any effects, in particular in terms of additional or reduced costs as well as delivery dates shall be considered reasonably.

6.
Without our written approval, the supplier is not entitled to transfer our orders to third parties; otherwise we may withdraw from the contract in whole or in part and request compensation for any damage suffered.

III. Delivery and performance periods, delay

1.
Any agreed delivery and performance periods and delivery dates are binding. For judging compliance with dates and deadlines, the receipt of the goods at the destination specified by us is definitive.

2.
Acceptance of late deliveries or performances does not imply a waiver of any claims for damages.

3.
If the supplier predicts that a delivery date or delivery period cannot be complied with for whatever reason, he or she shall immediately notify us accordingly in writing quoting the reasons and the expected duration of the delay.

4.
If the supplier does not deliver the goods on the agreed date, he or she shall be liable for any damage caused by such delay. Furthermore, we may request compensation for damage in lieu of contract performance and/or withdraw from the contract in whole or in part if we have set the supplier an appropriate period of grace for performance or subsequent performance and if the supplier does not perform at all or does not provide timely performance.

5.
The supplier shall immediately notify us of any reasons which, in his opinion, are attributable to us and which might lead to the exceeding of delivery/performance dates. If such notification is not made immediately, the supplier may not invoke these reasons for delayed deliveries/performance.

6.
As far as compliance with contractual obligations by the supplier or by us is impeded by inevitable and unforeseeable circumstances or events which are beyond the supplier's and the purchaser's control, the parties are released from their duties for the duration of such circumstances and to the extent of such disturbance. Acts of God include in particular flood, war, insurrection, strike, lockout, legal and official directives and similar events beyond the control and the influence of the contract partners. The contract partners are obliged to immediately provide the required information and to adjust their obligations to the changed conditions in good faith, to the extent that this is reasonable. We are released from the obligation to accept ordered goods/performance in whole or in part and entitled to withdraw from the contract if the delivery/performance cannot be used by us any more from an economic perspective, due to the delay caused by Acts of God.                          

7.
If deliveries are made earlier than agreed, we reserve the right to return the same at the supplier's expense. If goods delivered early are not returned, they will be stored by us until the contractual delivery date at the supplier's cost and risk. In the event of early delivery, we reserve the right to make payment only on the agreed due date.

8.
Partial deliveries are only accepted if such have been explicitly agreed. If partial deliveries have been agreed, the remaining goods shall be specified. In the event of excess deliveries beyond the usual extent, we reserve the right to return excess goods at the supplier's expense.

IV. Pricing, despatch, packaging, transfer of risk and property

1.
Agreed prices are fixed excluding any kind of additional claims. The costs of packaging and transport to the agreed destination or goods receiving point as well as for customs clearance and customs duty are included. If no prices are quoted in the order, the applicable list prices of the supplier less commercial discounts shall apply.

2.
When supplying goods and services, the Supplier shall observe all relevant legal regulations, in particular those concerning hazardous materials and dangerous goods, the protection of the environment and the prevention of accidents. In addition the Supplier shall ensure the security of the supply chain according to the relevant customs regulations and observe the generally accepted safety rules.

3.
Each delivery must be notified immediately after shipment by a despatch note which precisely quotes type, quantity and weight. Notifications of despatch, B/Ls, invoices, delivery notes with the exact delivery address (Werk I or Werk II) and any correspondence must carry our order number.

4.
Despatch is made at the supplier's risk. The risk of deterioration including accidental loss shall remain with the supplier up until delivery to the destination specified by us.

5.
All deliveries are covered by our transport insurance. In this respect we are a so-called "forbidden

customer" ("RVS/SVS-Verbotskunde") in the context of the shipping and cartage insurance. The supplier shall inform the forwarder accordingly.

6.
If the means of packaging has exceptionally not been agreed, the supplier shall select the packaging which is most cost effective for us. We are entitled to deduct any excessive packaging cost from the invoice. We will immediately return to the supplier any packaging material in a good or reusable condition carriage paid against reimbursement of 2/3 of the corresponding invoice amount.

7.
Apart from the above, the obligation to return packaging material is subject to the legal provisions. Goods shall be packed so as to prevent transport damage. The use of packaging material shall be limited to the extent required to achieve this aim. All damage resulting from improper packaging shall be at the supplier's charge.

V. Invoice, payment, assignment. Retention of title, right of retention, set-off rights and penalty

1.
Invoices shall be submitted separately after completed delivery in two copies including all related documents and data. Invoices must be made up according to the items of the order. Our order number must be quoted. Corrections to wrongly submitted invoices will be deemed to have been received only at the time the correction has been received. Incorrect invoices will be objected to without delay.

2.
Payment is made after complete receipt of the goods or completion of services and after receipt of the invoice based on the agreed terms of payment. If the invoice is received prior to complete receipt of goods, the terms of payment start only at the date of receipt of the goods. If the invoice is paid prior to full receipt, payment is made under the reservation of the receipt of goods; premature payment does not affect the right to issue notices of defects.

3.
Except for extended retention of title, the supplier is not entitled without our written consent to assign his or her claims against us in whole or in part, to pledge the same or to have them collected by third parties.

4.
The supplier may reserve his or her title to the delivered goods up until we have made payment for the goods without affecting our right to process and sell these goods.

The supplier's retention of title only applies in proportion to the value of any sums which have not been settled by us and to the balance in the supplier's favour, respectively.

5.
As far as the issue of material test certificates has been agreed or is common practice, these form an essential part of the delivery and must be attached to the goods. The term of payment of invoices does not start before receipt of such certificate.

6.
In the event of incorrect delivery, we have a right of retention and a set-off right.

Penalty may be asserted up until payment of the last invoice without reserving the right to assert penalty at the time of acceptance of goods.

VI. Notice of defect, liability for material defects and defects of title and other breaches of duty, liability periods, product liability

1.
The supplier guarantees that all deliveries/services reflect the latest state of technology and comply with legal provisions and regulations and directives of authorities, Employer's Liability Insurance Association and professional associations. In particular, deliveries/services must comply with the Act on the Safety of Appliances (Gerätesicherheitsgesetz) and the related regulations as well as the EMC Act (Gesetz über die Elektro-Magnetische Verträglichkeit) including the related regulations. If deviations from these regulations are required and legally permissible on a case by case basis, these require our written approval. This approval does not affect the supplier's liability for material defects and defects of title. If the supplier has concerns with respect to the design requested by us, he or she must immediately notify us in writing.

2.
The supplier undertakes to use environmentally friendly products and methods for his or her deliveries/services and also for supplies or services of third parties as far as this is economically and technically possible. He or she is liable for the environmental compatibility of supplied products and packaging material and for all consequential damage resulting of the infringement of legal disposal obligations. Upon request, the supplier shall issue a certificate of inspection for the supplied goods.

3.
We are not obliged to perform a detailed inspection of incoming goods; we make random tests and checks for obvious defects. The data determined by us is decisive in terms of quantity, dimensions and weights.

4.
Notices of defects are deemed to have been made in good time if obvious defects are notified to the supplier four weeks after receipt of the goods. Defects which are not obvious, or hidden defects, may however be notified later, i.e., within 10 days from detection of such defects.

5.
The supplier must provide possession and ownership for goods which are free from material defects and defects in title. Material defects exist in particular if the goods at the time of transfer of risk are not of the agreed quality and/or are not suitable for the intended use as stated in the contract and/or do not retain the quality and/or usability for the usual period of time.

6.
In the event of material defects and defects in title as well as other breaches of duty, our claims and rights are based on the BGB (German Civil Code) in the edition applicable since January 01, 2002. In addition to the legal rights, the following is agreed:

If a supplier fails to comply with his or her subsequent performance within a reasonable period of grace granted by us, we may remedy any faults ourselves at the supplier's expense or have the remedy executed by a third party unless the supplier justifiably refuses subsequent performance. § 323 Abs. 2 BGB applies accordingly; a period of grace will not be granted if subsequent performance has failed or is unacceptable to us. If in the event of subsequent work (e.g., sorting, remedy) being required on the site or in the shop where the goods are to be delivered, the supplier must provide for or organize subsequent performance at his expense. In order to avoid production standstills, this shall be made immediately without need for a particular period of grace in addition to the notification. Otherwise, we and/or the parties concerned in the supply chain may carry out such works or have such works carried out at the supplier's expense.

7.
The guarantee period for our claims resulting from material defects and defects in title and other breaches of duty by the supplier ends at the earliest 5 years after acceptance of the complete delivery/services, subject to any longer periods which may be provided by law or agreed on a case by case basis and subject to clause 8, however at the latest 10 years after beginning of the legal prescription period. If acceptance is delayed for reasons which are not attributable to the supplier, the guarantee period begins after the delivered goods are available for acceptance. The guarantee period for a spare part begins at the time of appropriate installation of the spare part and lasts 5 years. For delivered items which cannot be commissioned and are not used during the time of inspection or repair of a defect, the guarantee period is extended by the duration of the interruption. Apart from this, the period is extended by the duration of any period during which it is interrupted.

8.
If we are liable due to material defects or other breaches of duty which are attributable to the supplier, the supplier shall release us from all claims of our contract partners; in the event of claims for damage however the supplier shall release us only in so far as he or she is responsible for the material defect or the breach of duty. Our claims for damage and release from all damage and expenses go beyond the periods of liability and guarantee defined in clause 7, however these end at the latest 10 years after beginning of the legal prescription period, provided that we are liable for goods purchased from the supplier and resulting damage and expenses which are due to reasons which are the supplier's responsibility. Any claims resulting from any breach of duty by the supplier which are objected to within the liability and prescription period shall be valid at the earliest three months after the objection.

9.
Our approval of drawings, calculations and other technical documents does not affect the supplier's liability for material defects and defects in title. Every disclaimer by the supplier is hereby waived. Disclaimers only apply if and in so far we have explicitly accepted them in writing.

10.
Any further claims and extended validity periods pursuant to the ProdHaftG (Product Liability Act) resulting from illegal acts, fraud or from a guarantee shall remain unaffected. The supplier undertakes to keep all construction and production documents for supplied goods for a period of 11 years and make them available at any time when we are subject to the filing of a claim resulting from product liability.

11.
The supplier shall take out reasonable insurance policies against all risks arising from product liability and all other liabilities including call-back risks and shall make the policy available to us upon request.

VII. Models, drawings, samples, dies

1.
All dies, models, samples, moulds, jigs and drawings as well as similar objects which we put at the supplier's disposal must be treated confidentially and may only be used for our orders and must not be copied or disclosed to third parties. Documents remain our property. Any products and services produced on the basis of such items must not be delivered to third parties whether as unfinished goods or as semi finished or finished goods. The same applies to any items that the supplier has developed based on our specifications.

2.
If the supplier produces dies, models, samples, drawings or similar within the framework of our order, these shall be treated equally confidentially. These items shall become our property once we have paid the agreed price or shall become the subject of co-ownership once we have made a down payment, i.e., on a pro-rata basis of the agreed payment in relation to the down payment. If no payment is due, the items shall become our property at the time of entering into the contract, however at the latest at the time of production. The supplier shall store these items free of charge. We may take possession of same if the supplier is threatened by distraint, or an insolvency procedure of his assets is instituted or in all other cases of contract termination. After completion of the order, these items shall be handed back to us.

3.
Sub-suppliers shall be placed under the same obligation.

VIII. Industrial property rights

1.
At the time of delivery of goods or, in the case of services, at the time of delivery of technical documents, the supplier must inform us in writing of all industrial property rights or industrial property right applications which are relevant to the supply/service, quoting all appropriate data. The supplier is liable for any infringement of third party industrial property rights.

2.
We are authorized to obtain at the supplier's expense from the owners of industrial property rights approval to use, deliver, commission, sell etc. the delivered goods and services.

3.If in connection with the production and use of goods/services and the provision of spare and wearing parts third parties assert claims against us or other third parties for infringement of industrial property rights, the supplier is obliged to release us or third parties engaged by us and to compensate for any resulting damage, including legal and extrajudicial costs. The supplier may only invoke contributory negligence in infringing industrial property rights if he or she can furnish proof of gross negligence by us or by third parties engaged by us.

IX. Confidentiality

1.
The supplier undertakes to treat as confidential the conclusion of the contract and all related negotiations unless we have explicitly agreed in writing to their disclosure.

2.
All obvious commercial and technical details which are required for execution of the order as well as all working methods, processes, equipment, plans, drawings and documents which are divulged to the supplier or his representatives during execution of the order, or which are essential for order execution are deemed to be confidential and subject to this confidentiality clause.

3.
Sub-suppliers must be placed under the same obligation.

4.
If a contract partner becomes aware that a confidential piece of information has become known to an unauthorized third party or that a confidential document has got lost, he or she must immediately notify the other contract partner accordingly.

The supplier may use information gained during order handling, as well as the actual fact that an order has been placed, for advertising or publication purposes only with our explicit prior written approval.

X. Place of performance, place of venue, applicable law  

1.
The place of performance for deliveries shall be the agreed destination, the place of performance for other services shall be Olpe.

2.
The place of venue for contracts with traders, legal entities of public law or separate assets under

public law shall be the court competent at our headquarters. We may also instigate legal proceedings against our contract partner at the court competent at his or her headquarters.

3.
Orders, deliveries and services are exclusively based on German law waiving the United Nations Convention On Contracts For The International Sale Of Goods (UNCITRAL/CISG

 XI. Final clause

1.
If parts of these terms are unenforceable, the enforceability of the remaining provisions shall remain unaffected

2.
Confidential data on the supplier is stored by us in compliance with the provisions of Bundesdatenschutzgesetz (Federal Data Protection Act).

3.
The contract language is German. If the contract partners use another additional language, the German wording shall have priority.

 

Release 09/2012