General Conditions of Purchase - 2006
Supplementary priority conditions - 2006

General Conditions of Purchase for the Delivery of Goods and Services 2006

1.	General remarks, scope
1.1	The following General Conditions of Purchase are an integral part of the orders that apply to the delivery of goods and services (in the following jointly referred to as "Services"). They shall apply in relation to entrepreneurs, public legal entities and special public funds (Contractors - according to Section 310 (1) German Civil Code).
1.2	By accepting said General Conditions of Purchase without objection the Contractor agrees that they shall apply exclusively to the respective order and to any subsequent transactions. If special arrangements are made for a specific order that differ from these General Conditions of Purchase, the latter shall apply in a subordinate supplemental capacity.
1.3	General Terms and Conditions of Business of the Contractor that differ from these General Conditions of Purchase shall not apply. This shall also apply where they are remitted to the Customer in letters of confirmation or otherwise.
2.	Offer, additional agreements, prohibited advertising
2.1	Additional verbal agreements and the exclusion of or amendment and/or addition to these General Conditions of Purchase must be expressly confirmed in writing by the Customer to be valid.
2.2	The use of orders for reference and/or advertising purposes requires the prior written approval of the Customer.
3.	Drawings, models, tools
	The Customer's property rights and/or copyright and/or other intellectual property rights in any illustrations, drawings, models, samples, calculations, construction plans and other documents which the Customer has provided or paid for to execute the order shall remain reserved; these documents may only be used for work involved in completing the order and may not be duplicated and/or disclosed to third parties without the express written approval of the Customer. The documents, any copies made and/or tools provided must be returned to the Customer after the order is completed without the need for a request and at no charge. The Contractor shall be liable to the Customer for any loss or damage arising as a result of a culpable breach of these conditions.
4.	Responsibility for technical information
	The Customer's consent to drawings, calculations and other documents shall not affect the sole responsibility of the Contractor as regards the products or services delivered. This also applies to proposals, recommendations and other contributions by the Customer.
5.	Inspections
	Following timely prior notification the Customer and/or its employees and/or third parties named by it shall have access to the production and assembly sites of the Contractor and/or its subcontractors at all times for the purpose of checking such matters as the work progress, the use of appropriate material, the deployment of the necessary specialists and the professional implementation of the Services ordered. These inspections shall have no legal effect, for instance with regard to any acceptance by the Customer; an inspection does not replace final acceptance, nor does it limit in any way the sole responsibility of the Contractor as regards its Services. In particular, the fact that an inspection has taken place may not be invoked as grounds for raising an objection that the Customer is contributorily negligent.
6.	Spare parts
	The Contractor warrants that for every order spare and wear parts are available for a period of at least 10 years following expiry of the guarantee period.
7.	Transportation of hazardous goods, labelling of hazardous substances, packaging
7.1	It is the Contractor's responsibility prior to acceptance of the order to check whether the Items and/or their component parts as specified in the order must be classified in the country of origin, country of destination and/or any transit countries as hazardous substances (e.g. paints, adhesives, chemicals or inflammable, oxidising, explosive, combustible, poisonous, radioactive or corrosive goods or goods that are prone to self-heating). In these cases the Contractor must inform the Customer immediately and comprehensively. It must, no later than by the date of its written order confirmation, send the Customer the binding declarations required for the dispatch of the goods under statutory regulations, properly completed and signed as legally binding.
7.2	In relation to the packaging, labelling and declaration of hazardous substances the Contractor is bound to comply with the national and international regulations applicable in each case, including    Maritime  freight  Gefahrgutverordnung – Sea IMDG Code Air cargo UNICAO IATA RAR US-Dot Rail EVO/RID and Gefahrgutverordnung - Schiene Road ADR and Gefahrgutverordnung - Straße General Gefahrstoffverordnung;               Any contradicting and/or additional national regulations of the respective recipient country must also be complied with if the recipient country has been specified in the order.
7.3	The Contractor is responsible for any loss or damage occurring as a result of incorrect information in the binding declarations or as a result of non-compliance with existing regulations in the handling (packaging, shipment, storage etc.) of hazardous goods.
7.4	The Contractor will take back the packaging materials free of charge to the Customer.
8.	Export licence
	The Contractor is obliged to inform the Customer in writing without any delay if and to what extent export licences are required for all or part of the order or if similar statutory or official conditions must be fulfilled or if the Services are subject to US export restrictions.
9.	Prices, pricing, terms and conditions of payment, payment default
9.1	The agreed contract prices are binding. They are exclusive of VAT at the statutory rate.
9.2	Unless otherwise expressly agreed in writing the prices are quoted 'free our works', inclusive of packaging.
9.3	Payment shall be made on the 25th of the month following complete and proper performance of the contract and receipt of the invoice less a 3% discount or within 90 days net.
9.4	Where instalments have been agreed the starting date of the instalment is determined solely with effect from receipt of the invoice, to the extent that the fulfilment of specified Services and/or the provision of collateral have been agreed as preconditions. Invoices for Services, which the Customer has promised to a third party as communicated to the Contractor, shall fall due only if and to the extent that the Customer has received compensation from the third party for the Services or for part of the Services. If the Customer has provided collateral to the third party for possible defects, the invoiced amount shall fall due only once the Contractor provides collateral at the same amount to the Customer. Any instalments that may have been agreed do not discharge the Contractor from its obligation to itemise and render an account for all Services in a final invoice.
9.5	Default shall occur following the due date only once an explicit reminder has been sent.
9.6	The Customer will not be in default of payment if it has in good faith been mistaken about its rights to object to the Contractor's claims for compensation or to assert a right of retention.
9.7	If a payment default by the Customer is caused by simple negligence the interest is limited to 3 (three) percent above the base interest rate (Section 247 German Civil Code) unless the Contractor proves that it has incurred greater loss as a result of the default.
9.8	Payments by the Customer do not in any way signify an admission in the sense of a final acceptance that the Services have been performed professionally and properly.
10.	Set-off, right of retention, inter-company settlement
10.1	The Customer is entitled to set-off rights and rights of retention in accordance with German law.
10.2	The Customer also has set-off rights and rights of retention for those claims it has against companies which are affiliated with the Contractor in accordance with Section 15 German Stock Corporation Act (Aktiengesetz).
10.3	Disputes concerning the amount of compensation payable to the Contractor do not entitle the Contractor to suspend its Services in whole or in part even on a temporary basis.
11.	Deadlines, default in delivery
11.1	The deadlines stated in the order or any other specifically agreed delivery deadline shall be binding. Services performed ahead of Schedule and/or Services performed in stages require the express written approval of the Customer.
11.2	The Contractor is obliged to inform the Customer immediately in writing if circumstances arise or become obvious as a result of which it becomes impossible to meet the deadlines.
11.3	If the Contractor is in default as regards delivery or performance, the Customer is entitled to demand a contractual penalty of 0.5% for each calendar week commenced, but in total not more than 5% of the remaining scope of delivery, taking into account possible damages. Any additional claims for delivery default (including the right to cancellation and/or damages in lieu of performance) remain unaffected. The right of the Customer to demand the contractual penalty shall remain up to final invoice/payment even if it has not reserved this right when accepting the Services.
11.4	In addition, and regardless of any other and/or further rights that the Customer may have, the Customer may, after a reasonable grace period set by it has expired, or if performance of the service is no longer of interest to it due to the delay, or if the delay results in any danger, or in order to avoid further damage or loss or in case of an urgent need, without setting a grace period, have the services -which have not been performed by the Contractor- performed by a third party at the Contractor's expense. In the event of such substitute performance the Contractor shall at its own expense provide the Customer with any information that is necessary for this and deliver to it any documents in its possession, and where the Contractor or any third parties have any intellectual property rights to the Services still outstanding it shall at its own expense and to the extent necessary provide the Customer with the rights of use required for the substitute performance or shall immediately hold the Customer harmless against claims arising from these third party rights. By execution of this Agreement the Contractor expressly agrees to the use of its intellectual property rights for the substitute performance by the Customer or by third parties hired by it. The claim for payment of the contractual penalty until the moment when the assignment is granted to the third party must be complied with in any case.
12.	Assignment of claims
	Claims against the Customer may only be assigned with its prior written consent. This does not apply to assignments under an extended reservation of title, under German law. Section 354a of the German Commercial Code remains unaffected.
13.	Transfer of risk
	The Contractor shall bear the risk pursuant to the terms and conditions of delivery agreed with it in each case according to Article 9.2. We, as customer, have waived the standardized 'SLVS' transport insurance. This means that in such a case the Contractor always has to insure the transport risk.
14.	Documents
	The Contractor is obliged to state the order number of the Customer and the contractually agreed identification marks on all shipping documents and/or delivery notes, otherwise any consequences (e.g. further delays or additional costs) shall be at the charge of the Contractor.
15.	Liability for defects, notification of defects, recourse
15.1	The Contractor warrants that its Services comply with the accepted standards and are state-of-the-art as well as comply with the standards and regulations (including safety, occupational safety and accident prevention regulations) pertaining in the country of the Contractor and in the country of destination, that they conform to the agreed qualities, have the warranted properties and also otherwise have no material defects or defects in title.
15.2	The Contractor is under the obligation to immediately check the product or service supplied for possible quality and or quantity defects in accordance with the relevant conditions and the climatic and other requirements set to the relevant place of use and to put in a claim for any defects immediately upon finding them.
15.3	The Customer is entitled without limitation to any statutory claims for liability for defects including the rights under Section 478 German Civil Code (recourse of contractor). The Customer shall always be entitled to demand that the Contractor remedy the defect or replace the product or service, such to be decided by the Customer; the Contractor shall bear all expenses required to remedy the defect or replace the product or service. After informing the Contractor, the Customer shall also have the right to have the defect remedied itself, at the Contractor's expense, if any delay results in danger or there is a special urgency or if a reasonable grace period granted to the Contractor to remedy the defect has expired fruitlessly or if such remedy has not been successful or if this appears to be justified in order to limit the damage or loss. The Customer may demand an advance from the Contractor for its resulting necessary expenses.
15.4	Where pursuant to Article 15.3 above the Customer is entitled to remedy the defect itself or have it remedied by third parties. Article 11.4 shall apply with regard to the Contractor's obligations. Any costs incurred in the course of remedying defects, including the cost of dismantling, assembly, travel, freight, packaging, insurances, customs duties and other public taxes, tests and technical inspections shall be borne by the Contractor.
15.5	The claims of the Customer for defects shall expire, unless otherwise agreed in writing, after 24 months counting from the date risk passes (Article 13). If the Service is intended for a building and has caused it to be defective, the limitation period shall be 5 years. Longer statutory limitation periods shall remain unaffected; Sections 438 (3), 479 and 634a (3) German Civil Code shall also remain unaffected.
15.6	Provided that and as long as Services cannot be used for their contractual purpose due to subsequent performance work by the Contractor, the limitation period for defects shall be extended by the length of lime required for said rectification work. For Services repaired and/or replaced under liability for defects the limitation period shall recommence upon acceptance of the repair or the replacement, but shall not be for more than five, or in the case of building Services not more than seven, years from the transfer of risk.
15.7	Section 476 of the German Civil Code shall apply mutatis mutandis, with the period being extended to 18 months.
16.	Product liability, indemnity, insurance cover
16.1	To the extent that the Contractor is responsible for a product defect or the violation of statutory/official safety regulations it must hold the Customer harmless from any damages claims by third parties upon first written demand. In addition, the Customer is entitled to be reimbursed for any expenses which it has incurred, in particular in connection with any product recalls arranged by it as a result of the defect or the violation of existing safety regulations; the Customer shall first inform the Contractor as far as possible and reasonable, concerning the nature and extent of recalls. Any further statutory claims remain unaffected.
16.2	The same applies where product defects are attributable to Services provided by subcontractors of the Contractor.
16.3	The Contractor is obliged to maintain adequate insurance cover for product liability and to provide evidence of this to the Customer in writing when requested at any time, in particular by written confirmation by the insurer of the Contractor.
17.	Liability for environmental damage
	The Contractor is liable for all loss and damage arising in connection with its Services as a result of breach of provisions of environmental protection law (such as for instance emission protection laws, oil residue and water resources management laws, waste disposal laws and/or regulations promulgated relating to these). It shall indemnify the Customer in this connection against any and all damages claims by third parties upon first written request. In addition, the Contractor is liable for any damage or loss incurred by the Customer.
18.	Third-party rights
	The Contractor guarantees that its performance of the order does not infringe any third-party rights. In the event of any such claim by third parties the Contractor shall indemnify the Customer against any such claims upon first written request. The duty to indemnify relates to all expenses necessarily incurred by the Customer arising from and/or in connection with such claim.
19.	Subcontracting, partial Invalidity
19.1	In order to exercise rights of retention against its subcontractors the Contractor requires the prior written approval of the Customer. In order to avoid the Contractor's subcontractors exercising rights of retention the Customer is entitled to make direct payments to subcontractors which, provided they relate to legitimate claims of the subcontractor, shall be deemed to be payment in lieu of performance in relation to the Contractor. Legitimate claims of the subcontractor on the Contractor pursuant to the previous sentence shall also be such claims where the Customer has in good faith been mistaken about their existence. In every case third parties, including sub-suppliers and subcontractors used by the Contractor to perform its obligations under the order or which are otherwise involved by the Contractor in connection with its Services, are vicarious agents of the Contractor ["Erfüllungsgehilfen"] in accordance with Section 278 German Civil Code.
19.2	In the event of individual contractual provisions being or becoming invalid, the validity of the remaining contractual provisions shall remain unaffected. The contractual parties undertake to replace the invalid contractual provisions immediately by means of an amendment to the Agreement by a provision which is closest to the economic outcome of the invalid contractual provision.
20.	Place of performance
	The place of performance for Services of the Contractor is the agreed place of use, and for payments of the Customer it is the place of the Customer's registered office.
21.	Jurisdiction, applicable law
21.1	Provided that the Contractor is a fully qualified merchant [Vollkaufmann under the German Commercial Code], a public legal entity or a special public fund, the place of jurisdiction for all types of proceeding shall be the registered office of the Customer; the Customer may also bring an action against the Contractor in the Contractor's ordinary place of jurisdiction.
21.2	The Agreement shall be exclusively construed and governed by the law of the Federal Republic of Germany governing the legal relationships of domestic contractual parties; the UN Convention on Contracts for the International Sale of Goods is hereby excluded.

In case of disputes or conflicting interpretations, the original German version of this document shall prevail.

Supplementary priority conditions to the General Conditions of Purchase for the Delivery of Goods and Services (General Conditions of Purchase for the Delivery of Goods and Services 2006)

In case of disputes or conflicting interpretations, the original German version of this document shall prevail.