General terms and conditions of purchase
General Terms and Conditions of Purchase (short-form conditions)
Werner & Pfleiderer Industrielle Backtechnik GmbH, 71732 Tamm
1. Our orders and business are discharged solely on the basis of these “General Terms and Conditions of Purchase and Procurement”. Any of the Contractor’s terms and conditions of supply that deviate from these terms and conditions shall not apply, even if they are not expressly objected to in each case. The only exception to this is provisions in the Contractor’s terms and conditions of supply relating to reservation of ownership; these are acknowledged by us to the extent set out in Clause 11 below.
2. These “General Terms and Conditions of Purchase and Procurement” are also applicable to any future orders and transactions, even if this is not expressly specified in each case.
Orders and other declarations are only binding if they have been placed or confirmed by us in writing or by telex/facsimile.
III. Goods and Services
Unless other requirements are specified in the order, all goods and services are to comply with the relevant standards such as EN, DIN, VDE, VDI, DVGW, CE, or equivalent standards. Goods are to be designed so as to ensure that, on the date of delivery, they fulfil the operating conditions specified by us and satisfy the statutory provisions or standards applicable at the place of use. The same applies correspondingly to the provision of any services.
Prices are fixed prices drawn up exclusive of the statutory rate of value added tax, and cannot be changed. The prices are regarded as delivered, duty paid, at the receiving centre or receiving station in accordance with the version of the INCOTERMS applicable at the time. Packaging shall only be payable if a separate payment has been expressly agreed in writing.
V. Delivery and Payment Dates
1. Agreed dates of delivery and payment are binding. Receipt of the goods and shipping papers at the receiving centre designated by us determines the observance of delivery dates or the delivery deadline.
2. In the event of any delay on the part of the Contractor, the statutory provisions shall be applicable. Independent of this, we are entitled to demand from the Contractor a contract penalty amounting to 0.5% per week or part thereof from the time of the delivery delay, at most, however, 5% of the total value of the order. This shall also apply if we do not expressly reserve the right to a contract penalty at the time of receiving the goods or the service.
3. The Contractor shall inform us without delay of any transgression of the date of delivery and/or performance that may become evident, stating the reason for and the anticipated duration of the delay. If the Contractor does not comply with this provision, he cannot allege that he was not responsible for said delay.
4. If the date of delivery and/or performance is exceeded as a result of any force majeure, industrial action, interruption of operations for which the Contractor is not at fault, civil disturbance, or official action, we are entitled to withdraw from the contract fully or in part without prejudice to our other rights.
VI. Packaging, Shipping, Acceptance of Delivery, Insurance
1. The Contractor is responsible for suitable packaging. Whenever any separate payment has been expressly agreed for packaging, we are entitled to send the used packaging material back to the Contractor and return debit the Contractor for two-thirds of the agreed value of the packaging.
2. Shipping is to be effected carriage paid to the receiving station prescribed by us in compliance with the version of the INCOTERMS applicable at the time. The mode of dispatch is to be determined by us. If the costs of shipping are to be borne by us and no instructions as to the mode of dispatch have been provided, the shipment is to be transported by the most inexpensive means, taking due consideration of the urgency of the case.
3. Delivery notes are to be submitted in triplicate, separately for each receiving station, immediately following departure of the respective shipment. An invoice shall not be regarded as a delivery note. A packing list in neutral form is to be enclosed with each consignment. Our order number is to be stated in the delivery papers. If no proper delivery papers have been made available to us upon receipt of the delivery item, all resulting expenses incurred shall be debited to the Contractor. In such cases, we are also entitled to refuse receipt of the delivery at the expense of the Contractor.
4. Should it be impossible or unreasonable for us to accept receipt of the delivery item due to force majeure or any other circumstances beyond our control, including industrial action, we are entitled to specify a different receiving station to the Contractor.
5. We are self-insurers and consequently a customer exempt from forwarding, logistics and warehousing insurance.
VII. Transfer of Risk
No risk shall be transferred to us until the shipments have been delivered and accepted by us or at the agreed receiving station.
VIII. In-Process Testing, Final Inspections, Weight
1. We reserve the right to examine the quality of the material utilised, the accuracy of dimensions and quantity, the quality of the manufactured parts and the observance of the other specifications relating to the order during production and prior to shipment at the Contractor’s plant or that of his sub-supplier.
2. Whenever we reserve the right to have a final inspection of the finished goods conducted at the premises of the Contractor, either by us or by a third party appointed by us, we or the third party appointed by us is to be notified of the readiness for final inspection at least 14 days in advance.
3. The costs of in-process testing and final inspections shall be borne by the Contractor, with the exception of expenses for the staff delegated by us. Should any test or final inspection have to be repeated for reasons for which we are not at fault, then the expenses for our staff shall also be borne by the Contractor.
4. If we specify that final inspection of the finished goods is to be conducted by a third party, the Contractor shall have this done on our behalf, free of charge, and will notify us of the result of such inspection immediately, at the latest with the dispatch documents.
5. In-process testing and final inspection do not release the Contractor from his performance and warranty obligations.
6. The weights of incoming goods as ascertained by our weigh-master on our factory weighing machine are decisive for the relevant weights. Should weighing not be possible on our premises, the weights determined by the railway authorities and documented on the bill of lading or, in the case of delivery by truck, the weights determined on a public weighbridge shall be applicable. If weighing is not possible, the Contractor shall provide evidence of the delivery weight.
1. The Contractor is liable for ensuring that his goods or services comply with state-of-the-art technology, the relevant provisions and the rules and regulations prescribed by public authorities, professional associations and industrial unions.
2. Should the Contractor have any doubts regarding the type of construction requested by us, he shall immediately notify us of this in writing.
3. The acceptance of goods and services is always conditional on their examination, in particular as to completeness and freedom from defects. Such examination is carried out on the basis of the delivery note and is limited to obvious defects. We will examine all goods and services as soon as this can be accomplished in the course of normal business procedures and shall notify the Contractor in writing of any deficiencies detected in the course of such examination at the latest within ten work days. The same applies to defects that do not become evident until a later date, accordingly. In this case, the Contractor renounces his right to object to delayed notice of defect.
4. In the event that the Contractor does not immediately comply with our request for supplementary performance, and in order to safeguard against acute danger or avoid greater damage, we have the right to remedy the defects ourselves or to have them remedied by others on the basis of our charge rate. This shall not affect any statutory claims in accordance with § 437 No.2 and No.3 BGB (German Civil Code). General Terms and Conditions of Purchase (short-form conditions) Werner & Pfleiderer Industrielle Backtechnik GmbH , D - 71732 Tamm
5. The warranty claims to which we are entitled are subject to a limitation period of 24 months unless a longer limitation period exists in accordance with § 438 para. 1 and 3 BGB (German Civil Code). If the goods and services are utilised for resale or used in the manufacture of machinery or equipment, the limitation period shall begin once the limitation period starts for deficiencies on the machinery or equipment provided with the goods and services from us, at the latest however six months after delivery.
6. The Contractor shall exempt us from all claims by third parties in the event of defects of title.
7. The limitation period for claims is suspended as long as the goods or services are being examined for defects or reworked.
8. In the event that defective goods or services are repaired, the limitation period commences once the Contractor has satisfied our claims to supplementary performance in full.
X. Obligation to Supply Replacement Parts
The Contractor undertakes to execute orders for replacement and wearing parts for at least ten years after expiry of the warranty term.
XI. Product Liability
1. Should any claims be made against us based on product liability, the Contractor is obligated to exempt us from such claims in as far as the damage is caused in consequence of a fault in the item supplied or service rendered by the Contractor.
2. The Contractor shall provide us at the commencement of the contract and at any time on request with evidence of product liability insurance and recall insurance with a coverage sum of at least EUR 2,500,000 in each case of liability; he shall also maintain such insurance protection following complete discharge of the mutual contractual obligations for a period of ten years subsequent to the date of our placing the processed delivery items on the market.
XII. Invoicing and Payment
1. Invoices for supplies are not to be enclosed with the consignments. They shall be submitted separately to our accounts controlling department, in duplicate, immediately following delivery or performance, with individual invoices for each order, and shall include details of value added tax as well as stating the complete order number.
2. Unless otherwise agreed, payment shall be made after the goods have been received or the service provided, and following receipt of the invoice, within 14 days with 3% discount or within 60 days without any deduction, using a means of payment of our choice. In the event of premature performance, the agreed date shall apply. Payment shall take place subject to verification of invoice.
XIII. Assignment and Offsetting
The Contractor is not permitted to assign his contractual rights either fully or in part to any third party without our written consent. Where advance assignments in the course of any reservation of ownership on the part of sub-suppliers of the Contractor are concerned, this consent is herewith granted with the proviso that any offset against counterclaims is admissible after having obtained advice of advance assignment.
XIV. Production Tools, Provision of Materials
Production tools such as models, samples, dies, tools, technical drawings and the rights to these and similar articles made available to the Contractor by us or manufactured by the Contractor according to our specifications, and any materials and auxiliaries placed at the Contractor’s disposal remain our property or shall become our property. Subsequent to expiry or performance of the contract, these may not be passed on or otherwise assigned to third parties for use in any way, nor may they be utilised for others. Furthermore, once the contract has expired or been discharged, these production tools are to be placed at our disposal again, free of charge and in a proper condition, on request. The Contractor shall notify us immediately if he is threatened by bankruptcy or if our property could be affected by any seizure or other security measures.
XV. Hired Labour
1. Whenever hired workers are employed in individual cases, these are and remain the labour force of the hiring party who shall assume liability for them in accordance with statutory provisions. The hiring party alone is responsible for the safety of this labour force and shall ensure the same by deploying his own and/or appropriate safety specialists and a safety representative.
2. Insofar as we have granted our written consent to the Contractor deploying sub-suppliers, we are to be notified in advance of the names and qualifications of the persons deployed by them in order to issue our written consent to the same. Despite our consent, these persons remain the employees of the hiring company.
3. In the event of any breach of occupational health and safety regulations and work rules at the location, we are entitled to send the relevant employees from the site and to terminate the contract in the case of severe infringements. Any losses arising due to the delay resulting from this shall be borne by the Contractor.
XVI. Surrender of Documents, Advertising
1. All and any drawings, models, samples or other documents placed at the disposal of the Contractor or his vicarious or performing agents or manufactured by them according to our specifications remain our property and may only be used for preparing the quotation or for discharging the ordered goods or service. They may not be made accessible to any third parties without our prior written consent and are to be stored by the Contractor at his own expense and risk. They are to be returned to us immediately on request once the inquiry has been dealt with, or unsolicited as soon as the ordered goods or service have been discharged.
2. The drawings, descriptions, etc. pertaining to the order are binding on the Contractor; he shall however check these for non-conformities and shall immediately point out any detected or suspected faults or mistakes, in writing; he can otherwise not refer to these non-conformities/faults at a later date. The Contractor is solely responsible for any drawings, plans and calculations drawn up by him, even if these have been approved by us.
3. It is not permitted to use our inquiries, orders and correspondence relating to these for advertising purposes.
The Contractor shall maintain secrecy towards others in respect of all operational procedures, facilities, machinery and equipment at our premises or at those of our customers that may become known to him in conjunction with his work for us even after submitting the relevant quotation or completing the relevant order and shall also impose corresponding obligations on his vicarious and/or performing agents.
XVIII. Place of Performance, Legal Venue, Jurisdiction, Data Storage
1. The place of performance for deliveries and services is the location specified by us. The place of payment is Tamm.
2. If the Contractor is a businessman, a legal entity or a separate estate under public law, the legal venue is Tamm. We are also entitled to take legal action at the Contractor’s registered office.
03. German law shall be solely applicable. The Hague Convention on the International Sale of Goods of 01/07/1064 and the UN Convention on the International Sale of Goods (CISG) of 11/04/1980 in their respective version shall not be applicable.
04. The Contractor declares his agreement to the contract-related saving and processing of person-related data by us, taking due account of the Federal Data Protection Act.
XIV. Saving Clause
Should any individual provisions of these General Terms and Conditions of Purchase and Procurement be ineffective, this shall not affect the remaining provisions.
Werner & Pfleiderer Industrielle Backtechnik GmbH, Tamm, January 2008