General Purchase Terms of SCHWERMETALL HALBZEUGWERK GmbH & CO KG

§ 1 General- Scope of Application

  1. Our Purchase Terms will apply exclusively; any terms by the Supplier which are contrary to or depart from our Purchase Terms will not be recognized by us unless we explicitly consented to their validity in writing. Our Purchase Terms will apply even where we consciously and tacitly accept contrary or deviating terms by the Supplier. By performing the order, the Supplier accepts that our Purchase Terms apply exclusively.
  2. All agreements between us and the Supplier regarding performance of the present contract must be recorded in writing in the present contract.
  3. Our Purchase Terms will only apply to companies as defined by § 310 Sect. 1 BGB.
  4. Our Purchase Terms will also apply to all future transactions with the Supplier.

§ 2 Offer- Offer Documents

  1. The Supplier will be obligated to accept our order within a period of two weeks.
  2. We reserve the right to ownership and copyright to all illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our explicit written consent. They are to be used exclusively for manufacture on the basis of our order; following completion of the order they are to be unsolicitedly returned to us. They are to be kept confidential with regard to third parties.

§ 3 Pricing- Payment Terms

  1. The price specified on the order is binding. Unless otherwise agreed in writing, the price includes “door delivery”, including packaging. The Supplier must take back packaging at our request.
  2. We can only process invoices where the order number quoted on our order is specified; the Supplier will be responsible for all consequences arising from failure to observe this.
  3. Unless otherwise agreed in writing, we will pay the purchase price within 14 days as from the date of receipt of the goods and invoice with 3% discount or within 30 days net.
  4. We are entitled to rights of set-off and retention to the extent conceded by law.

§ 4 Delivery Period

  1. The delivery period specified on the order will be binding.
  2. The Supplier will be obligated to inform us immediately in writing where circumstances arise or are detected which prevent observance of the stipulated delivery period.
  3. In the case of delayed delivery, we will have the right to charge a default lump-sum of 1% of the net delivery price per each full week without further proof, but not more than 10%; further-reaching statutory claims will remain unaffected. The Supplier will have the right to prove that no or less damage was incurred as a consequence of the delay.
  4. In the case of delivery earlier than the agreed date, we reserve the right to return the goods at the Supplier’s expense. Where the goods are not returned in the case of earlier delivery, we will store the goods until the delivery date at the Supplier’s expense and risk.

§ 5 Passing of Risk- Documents

  1. Unless otherwise stipulated in writing, deliveries will be made as door deliveries.
  2. The Supplier will be obligated to quote the exact order number on all shipping papers and delivery notes; where he fails to do so, we will not be liable for inevitable delays in processing.

§ 6 Inspection of Defects- Guarantee

  1. The Supplier guarantees that all items and services supplied by him are state-of-the art and comply with the relevant legal provisions and regulations and guidelines of government agencies, trade associations and professional associations.
  2. The incoming goods will only be inspected for externally visible defects and externally visible deviations with regard to identity and volume. Any complaints concerning such defects will be reported by us within two weeks. We reserve the right to carry out a further inspection of the goods. Defects detected later will be reported by us within two weeks after detection. Complaints made within the periods set out in clause 2 and 4 will be deemed to have been lodged within the due period.
  3. We are entitled to the complete guarantee claims conceded by law; independent of this, we have the right to demand of the Supplier either rectification of defects or a replacement delivery as we choose. In this case the Supplier will be obligated to bear all expenses necessary for rectification of defects or replacement delivery. The right to damage compensation, in particular damages for non-performance is explicitly reserved.
  4. In urgent cases for which the Supplier is not responsible or in the case of omission by the Supplier we will have the right to have the defects rectified at the expense of the Supplier.
  5. Unless a longer period is stipulated by law, the guarantee period is 36 months as from the date of the passing of the risk.

§ 7 Product Liability- Indemnification-Third Party Liability Insurance

  1. Where the Supplier is responsible for product damage he will be obligated to indemnify us against third party compensation claims upon our first request, provided that the cause is within his domain and scope of organization and he is personally liable toward third parties.
  2. Within this scope, the Supplier is also obligated to reimburse any expenses pursuant to §§ 683, 670 BGB arising from or in connection with a recall campaign carried out by us. We will inform the Supplier of the subject matter and scope of the recall measures where possible and reasonable and give him the opportunity of making a statement.
  3. The Supplier will be obligated to maintain a product liability insurance policy with a lump-sum coverage of € 2.5 million per case of personal damage/material damage; where we are entitled to further-reaching damage compensation claims, they will remain unaffected.

§ 8 Intellectual Property Rights – Environmental Protection

  1. The Supplier guarantees that he is not infringing third party rights within the member states of the European Community, Switzerland and Liechtenstein  when supplying the goods and that we have the right to sell the goods there without restriction.
  2. Where third parties make claims against us in this context, the Supplier will be obligated to indemnify us upon our first written request; we are not authorized to conclude agreements, in particular, a settlement, with third parties without the Supplier’s consent.
  3. The indemnification duty will apply to all expenses incurred to us in connection with assertion of third party claims against us.
  4. Items bearing our trademark may not be supplied to third parties.
  5. The Supplier guarantees that all items supplied by him are as little ecologically-harmful as possible in accordance with the general status of development upon their manufacture, subsequent use/consumption and disposal.
  6. The statute of limitations for these claims is ten years as from the date of conclusion of the respective contract

§ 9 Retention of Title- Accessories-Tools- Confidentiality

  1. Where we order accessories from the Supplier we reserve the right to ownership of the accessories. Processing or reconstruction by the Supplier will be carried out for us. Where our goods subject to reservation of title are processed with items not belonging to us, we will acquire co-ownership of the new item on the basis of the ratio of the value of our item to the other items processed at the time of the processing.
  2. Where the accessory is blended with other items not belonging to us, we will acquire co-ownership of the new item on the basis of the ratio of the value of the item subject to reservation of title to the other blended items at the time of blending. Where the items are blended in such a way that the Supplier’s item is to be regarded as the main item it is agreed that the Supplier will assign a share in ownership to us; the Supplier will safeguard the exclusive ownership or co-ownership on our behalf.
  3. We reserve ownership rights to any tools; the Supplier is obligated to use the tools and accessories exclusively for manufacture of the goods ordered by us. The Supplier will be obligated to insure the tools and items belonging to us at replacement value at his own expense against fire, water damage and theft. He will be obligated to have the necessary repair and inspection work carried out at his own expense. He must report any trouble immediately; where he culpably fails to do so, damage compensation claims will remain unaffected.
  4. The Supplier will be obligated to observe strict confidentiality regarding all illustrations, drawings, calculations and other documents received. They may only be disclosed to third parties with our express consent. The duty of confidentiality will also apply after conclusion of the present contract; it will expire where the manufacturing knowledge contained in the illustrations, drawings, calculations and other papers becomes generally known.

§ 10 Assignment of Claims

    Any claims against us are not assignable without our written consent, irregardless of their type.

§11 Place of Jurisdiction – Place of Performance – Applicable Law

  1. Where the Supplier is a registered businessman, the seat of our company will be the place of jurisdiction; however, we will also have the right to sue the Supplier at his place of residence.
  2. Unless otherwise stipulated in the order confirmation, our company seat is the place of performance.
  3. The laws of the Federal Republic of Germany will apply. The terms of the standard purchase laws and of the Unzitral-Sales Convention will not apply.