1. General Terms
Our orders are exclusively subject to these purchase conditions. Confirmation or execution of our order is deemed as acceptance of the following purchase conditions. Other conditions, in particular those of sellers and contractors, do not apply to the contract, even when they have not been expressly contradicted. If goods or services are received from us without explicit contradiction, so integration of the delivery terms of the contractor cannot be integrated into the contract. Remuneration or compensation for visits, the preparation of tenders, projects, plans, etc. are also not guaranteed by us if no order is made. All other agreements must be made in writing.
2. Conclusion of contract
The contractor must confirm orders immediately or, at the latest, one week after their receipt. Delay or deviation from our order confirmation shall be deemed a new offer and will require our express written acceptance. If no such written acceptance is given and yet the contractor supplies the delivery or service, only the terms of the contract that is issued by us will be considered valid. All contracts, their amendments and supplements must be in writing. Verbal agreements are only effective if they are confirmed by us in writing. This also applies for written form clause.
Delivery is based on previously agreed fixed prices. This also applies to contracts with terms of deliveries of more than four months. In so far as no price being specified for an order we reserve confirmation, even if execution of the contract has already begun.
All deliveries are made with pre-paid postage and packing to the stated point of receipt or place of use. The shipment is presented to us in writing so that prior to the arrival of the goods we are aware of the quantity, dimensions and weight and other such information. This also applies to any special requirements when handling the goods, especially concerning their unloading, transport and storage in our operating area. Costs are to be expressly agreed by us, just as we determine the carrier. The goods are to be declared in the consignment note in order to calculate the cheapest permitted shipment rate. In order to carry out transportation, the contractor must notify the client when the goods are ready for dispatch. In this case, we shall take out transport insurance and bear the resulting costs. We are ‘prohibited customers’ for shipping and cartage insurance (known as SVS/RVS-Verbotskunde [SVS/RVS prohibited customers]) we will not bear any additional insurance costs. When the agreed price does not include packaging, it is understood that the price of packaging is calculated at cost price and without a deposit. We reserve the right to return bulky packaging material, especially containers, barrels, crates, etc. after emptying them. This being undertaken regardless of any other possible or arranged transportation or wear and tear, with freight being paid against an appropriate credit note to the contractor. Handling differs from the German Packaging Ordinance (VerpackV) of 12/06/1991 (BGBl I p.1234 ff.) with these resulting regulations requiring our prior written consent. As part of the supply and transport of hazardous substances within the scope of the German Act on the Transport of Dangerous Goods of 06/08/1995 (BGBl I p.212 ff.) and in regard to any legal regulations, the contractor will comply with the statutory provisions. Further deliveries are only to be accepted if they have been confirmed by us in writing. The contractor supplies free of charge and in a form that can be duplicated, all documents required for the relevant acceptance, operation, maintenance and repairs, especially inspection records, test certificates, drawings, plans, operating instructions and repair manuals.
5. Delivery Note
Every consignment must be accompanied by a twofold delivery note that states all of the order’s required markings, in particular ref. no., part no., batch no., and item no. Partial and outstanding deliveries must be clearly indicated. In order to determine the contents of a shipment without opening it, the delivery note must be filed in either the label or under the packing paper, clearly marked as ‘delivery note.’
6. Delivery period
The required delivery dates, in the lack of any explicit contradiction, are to be those agreed by the contractor, in which case the delivery date and periods are binding and begin with the date of our order. Compliance with the delivery date or delivery period is relevant to the receipt of the goods at the point of receipt, place of use, or timeliness of the successful acceptance. Any occurring delays are to be immediately reported in writing to the client upon their discovery before the expiry of the delivery period, stating the reasons and the probable duration of the delay. If, because of late delivery, new arrangements regarding the request become necessary, notification will be immediately given by us and must be exactly followed by the contractor. The contractor is obliged to replace all direct and indirect damages caused by delay, unless the contractor is not responsible for the delays. When the delivery period is exceeded we are entitled to set a reasonable grace period with penalty. After the fruitless expiry of said period, if the delivery date is determined by a calendar date, and even without prior notice, we may withdraw from the contract or claim damages for non-performance. The aforementioned rights do not thereby exclude that earlier late deliveries are to be unconditionally accepted by us. Deliveries made prematurely without our consent shall not affect the agreed and established delivery dates and payment deadlines.
7. Transfer of risk
The ordered goods travel at the risk of the contractor. The risk of accidental loss or accidental deterioration is one that is borne by the contractor. Any differing agreements must be confirmed by us in writing.
8. Guarantee, Warranty, Defect
The contractor guarantees and warrants that all goods supplied by him and/or all services rendered by him are state of the art and that they comply with the relevant legal provisions, regulations and regulations of public authorities, trade associations and professional associations. If, in individual cases, deviations from these rules are necessary, the contractor must obtain our written consent. The contractors warranty or guarantee obligations are not affected by this agreement. Through determined agreement specifications and proprietary standards, guaranteed data or warranted characteristics of the object of delivery or service are to be considered valid. The contractor shall ensure that the goods supplied or the services provided possess their promised or guaranteed properties and do not incur or include flaws or other such debilitating defects that may affect their value or characteristics. Unless otherwise agreed, the warranty period shall be twelve months and begins with the acceptance of the goods or services provided by us or by the third party designated by us for the specified receipt or use. The warranty for replacement parts is one year after the commission and it shall expire two years after its acceptance. The guarantee or warranty is limited to six months after notification of defects within the guarantee and warranty period. Through examination and/or correction of the defect, the statute of limitations in application of § 639 BGB is suspended until the results of an examination are notified or the defect is declared to have been eliminated or further effort to eliminate the defect is refused. With the discovery of defects of goods/services we will, in the course of ordinary business operations, immediately or at the latest within four weeks of the delivery to us or the recipient, inform the contractor in writing. We will inform of so called latent defects that show up later, within two weeks of their discovery at the latest. At the request of the client and with timely notice of the defects, the contractor must, immediately In urgent cases, or in the case of the contractor falling into arrears with the fulfilment of their incumbent warranty obligations, we are entitled to remedy the defects at the expense of the contractor by remedy of the issue or by replacement of equipment. Should the contractor choose to do this, he will inform the contractor of said decision. We decide, after due consideration, if an emergency exists. Should we be held liable for violation of official safety regulations or domestic or foreign product liability regulations because of a defect in our product, which results from the goods or services of the contractor, then we are entitled to compensation for this damage from the contractor, in so far as he has contributed to the situation by the products supplied by him The supplier shall implement a quality assurance system of an adequate nature and scope and in compliance with the latest technologies, and in the case of product liability claims, the supplier will provide us with evidence of this system.
Acceptance will take place in the due course of business immediately after receipt of the delivery or services, provided that they are as agreed in the contract. In the case of high-volume products, we fulfil our inspection and complaint duties by means of sample checks that take place during examination of incoming goods.
An invoice in triplicate must be sent on the day of the dispatch, the contents of which must completely agree with the delivery note and the dispatch note. Payments are to be made, if not indicated otherwise in the order, within 14 days less a 3% cash discount, net within 90 days or, net at a later payment time that has been allowed by the client. The payment period begins with the receipt of a proper invoice, but not before the receipt and technical inspection of the ordered goods or acceptance of the service. The date stated on the invoice shall be deemed the date of receipt. We do not acknowledge interests payable from the due date, any limitations of the right to refuse performance, the right of retention or the right to offset. Payments do not affect our right to complain or our guarantee and warranty claims against the contractor. Invoices that do not meet our requirements, especially in the absence of order numbers, will be returned immediately by us to the contractor. In this case, the discount period will not begin before receipt of the corrected invoice.
11. Force Majeure
Cases of force majeure, strikes and lockouts release the parties from their duties for the duration of the disturbance and the extent of their impact. The contracting parties are obliged to immediately provide, within reason, the necessary information and to adapt their obligations to the changed circumstances in good faith.
12. Foreign Industrial Property Rights
The contractor warrants that no domestic or foreign industrial property rights or copyrights of third parties are infringed by the manufacture, processing, use or resale of the goods tendered and supplied or those of third parties. The contractor is obliged to provide for us or our customers for damages claims of third parties arising from such legal relationships and to join us or our customers in any legal proceedings that arise from this regard at his own cost. We are entitled to acquire the right of use (license) from the legal owner at the expense of the contractor.
13. Private Industrial Property Rights
The contractor recognizes our claims to the brands, names and package designs used for the contract products and is committed to deriving no such rights in regards to the future use of such marks, names and packaging designs, or their or similar such reuse, with the exception of contract products to be delivered to us. This obligation of the contractor remains valid even after termination of the contract.
14. Documentation and Confidentiality
Models, samples, drawings, leaflets and all tools that we make available to the contractor shall remain our property. They can be reclaimed by us at any time. All models, samples and drawings are confidential and may only be used for the execution of our orders. The contractor shall expressly undertake not to reproduce our models, samples and drawings. All parts produced according to our specifications, drawings or models may be passed only to us and not, at any point, to third parties. Further, all other information and parts that the supplier submits in connection with the placing and execution of the contract, such as information about quantities, prices, etc. and otherwise obtained knowledge of all our operational processes must be kept confidential by the supplier, even after the termination of the business relationship.
The contractor is not entitled to assign claims against us or to have them collected by third parties without the client’s prior consent. We will consent to such assignment according to the principles of good faith. In the event that the contractor has granted an extended retention of ownership in the ordinary course of business to his supplier, our consent is to be deemed granted.
We are entitled to offset overdue requests with liabilities in accordance with what the contractor is entitled.
17. Place of Fulfilment and Place of Jurisdiction
In the course of business with merchants, public law legal entities or separate estates under public law, the place of fulfilment of the delivery or services of the contractor is to be a destination address that is specified by us. The place of fulfilment of our payment obligation is our company headquarters. The jurisdiction for all disputes is that of the client’s headquarters; however, we reserve the right to file suit at the contractor’s headquarters.
18. Partial Invalidity
The legal invalidity of part of the above conditions (including this clause) does not affect the validity of the other conditions. In the place of lacking or invalid provisions, statutory provisions apply.
19. Data Protection
Personal data which is incurred in connection with the contractual relationship is stored for the purpose of data processing (§ 26 Federal Data Protection Act).
FluidSystems GmbH & Co. KG As At 01/99