General Terms of Purchase of KG Deutsche Gasrußwerke GmbH & Co.
Version: January, 2017
Scope of application
Unless otherwise agreed in writing, for this and all future orders/contracts, only the present General Terms of Contract shall apply. Contrary or additional conditions of the Contractor (“Contractor”) shall not be binding for us, even if we have not expressly disagreed to them or if we have accepted the delivery without reservations.
Verbal ancillary agreements to the order/contract must be made in writing in order to be effective.
If there is an essential change of the contract’s commercial basis, if performance is impossible within the framework of contracts for recurring performances, or if composition or insolvency proceedings are initiated with regard to the Contractor’s assets and the Contractor has not or has not completely rendered its performance, we shall in every case be entitled to withdraw from the contract or, for contracts for recurring performances, be entitled to terminate the contract without notice.
The Contractor’s offers shall be made free of charge; cost estimates shall be compensated only upon a corresponding written agreement.
In all written correspondence, the Contractor must indicate the order number designated by us, as well as the order/contract date and the material description and/or material number.
The Contractor must establish and maintain a quality control system, for example, in accordance with DIN ISO 9001 and/or DIN ISO 14001. We entitled, upon prior arrangement with the Contractor, to review the Contractor’s system in a quality audit.
The commissioning of subcontractors requires our prior written approval. The Contractor shall subject the subcontractor to all obligations towards us that the Contractor has assumed and shall ensure in addition the fulfilment of these obligations by its subcontractors.
Compliance with the Minimum Wage Act
The Contractor shall assure that it shall pay, on a sustained basis and on time, at least the statutorily stipulated minimum wage as per § 1 MiLoG [Mindestlohngesetz (Minimum Wage Act)] to its workers who fall under the scope of the Minimum Wage Act, and to fulfil all other obligations under the Minimum Wage Act.
The Contractor undertakes to likewise contractually obligate the subcontractors commissioned by the Contractor within the framework of the contractual relationship with the Principal to pay the statutorily stipulated minimum wage and to comply with all other obligations under the Minimum Wage Act. If the subcontractor itself commissions subcontractors, the Contractor must ensure that all subcontractors, are also obligated accordingly.
The Contractor shall – at the request of the Principal – send on a monthly basis suitable proof of payment of the minimum wage (in particular the documents specified in § 17 MiLoG) to the Principal. The Contractor shall be further obligated to obtain corresponding proof from the subcontractors it engages and to review this proof and also make them available to the Principal upon the latter’s request.
The Contractor shall assume, on behalf of the Principal, all and any costs incurred by the latter due to claims made by third parties – in particular, by employees of the Contractor or other subcontractors – due to a violation of the Minimum Wage Act by the Contractor or by subcontractors. To safeguard this claim of the Principal, the Contractor shall be obligated, upon request, to provide the Principal with security, in an appropriate amount, in the form of an irrevocable and – except for the written demand for payment in correspondence with the respective guarantee – unconditional directly enforceable guarantee upon first demand from a credit institute that is licensed in Germany to undertake such transactions. The Contractor shall bear the costs for the guarantee.
If the Contractor culpably violates the Minimum Wage Act and/or the obligations specified above, the Principal shall be entitled to extraordinarily terminate the contractual relationship in place between the Principal and the Contractor.
The Contractor shall note the address indicated in the order/contract. The transport/shipment must be in accordance with the regulations regarding tariffs, transport and packaging by rail, road, ship and air etc. (if applicable).
In addition, the shipping address, order information (order number, order date, receiving point; if applicable, the name of the receiver and the material designation and/or material number issued or designated by us) must be indicated in the transport documents. Insofar as subcontractors are commissioned, they shall indicate the Principal as their customer and also the order date in all written correspondence and in the transport documents.
The weight of the loading unit is to be affixed to the loading unit in a clearly visible and permanent manner.
Without prejudice to our further claims, the Contractor shall be entitled to partial deliveries/partial performances only with our approval.
Information regarding dangerous material, product information
The delivery items are to be labelled in accordance with the Ordinance on Dangerous Substances [Gefahrstoffverordnung] and – for deliveries in the European Union – the directives of the European Community or, respectively, the European Union regarding dangerous materials/preparations.
The Contractor shall be obligated to submit to us, in due time prior to delivery, all necessary product information, in particular information about product composition and storage life/use-by periods, such as safety datasheets, processing instructions, labelling requirements, assembly instructions, occupational safety measures, etc., including any possible changes to the above information.
The date of delivery/performance indicated by us in the order shall be binding. The Contractor shall inform us in writing if there is a possibility that the Contractor will not be in a position to render fulfilment within the agreed period. In the event of default, we shall be entitled to our statutory claims.
The Contractor may object to not having been provided with documents or information that it requires from us only if, despite sending a reminder, it has not received these documents or this information within an appropriate time period.
We can demand any agreed and incurred contractual penalties up until the due date of the final payment, without expressly reserving this right pursuant to § 341 para. 3 of the Civil Code (BGB [Bürgerliches Gesetzbuch]).
Proof of performance and acceptance
Contractually stipulated proof of performance, as well as the acceptance, shall be made free of charge for us and shall be confirmed in writing by the Contractor.
Without prejudice to our further claims, in the event of weight discrepancies, the weight established by us when examining received goods shall apply, unless the Contractor proves that the weight calculated by the Contractor at the time of the transfer of risk was correctly measured in accordance with a generally recognized principle. This clause applies accordingly for quantities.
Invoicing and payment
Invoices must conform to the applicable statutory requirements. The order number and material number are to be noted on the invoice. The statutory VAT is to be indicated separately on each invoice. Invoices shall be sent separately to the invoice address indicated in the order/contract.
Unless otherwise agreed, we shall pay within 14 days with a 2% payment discount or we shall pay net within 30 calendar days. The payment period shall start with the delivery of the items to their destination (shipping address) or with the acceptance of the performance and the receipt of the invoice at the invoicing address indicated in the order/contract. Payments shall not be deemed as an affirmation of a contractually compliant performance.
Reporting of defects
We shall examine incoming goods only for obvious external (transport) damages and obvious external deviations from the agreed identity and quantity. We shall report such defects without delay after the delivery has taken place, and/or as soon as these are noticed within the framework of our usual course of business.
Claims for defects, Contractor’s liability, time-bar periods
The Contractor shall assure that its delivery/performance features the promised qualities and the contractually agreed quality that are suited for the use designated according to the contract, that its value or suitability for the designated use is not impaired, and that it meets the current technological standards and the applicable laws and administrative regulations.
If the delivery/performance does not correspond to the requirements of item 13 above or is defective in other way, at our discretion – in addition to our statutory claims – we can request, at short notice and free of charge, the replacement of the defective goods or the remediation of defects. In this case, the Contractor must reimburse us for all costs that we incur directly or indirectly as a consequence of its inadequate performance. In urgent cases or if the Contractor is in default with the remediation of defects, we shall be entitled to carry out the remediation of defects ourselves or have it carried out by a third party, without delay and at the Contractor’s cost. If the Contractor provided a quality or durability guarantee for the delivery/performance, we may – without prejudice to the above – additionally also assert our claims from the guarantee.
The Contractor shall be liable for legal defects pursuant to statutory provisions; the Contractor shall be liable, in particular, for ensuring that the delivery/performance or contractually agreed use does not violate any patents or other industrial property rights of third parties in the agreed country of destination. If a claim is asserted against us on the basis of such a violation, the Contractor shall, at first request, release us from all third-party claims (including all court and lawyers’ fees) to which we are exposed because of or in connection with the assertion of such third-party rights. Without the approval of the Contractor, we shall not be permitted to conclude any settlements with third parties at the expense of the Contractor.
In all other respects, the liability of the Contractor shall be limited only to the statutory provisions. At our first request, the Contractor shall release us from third-party claims for compensatory damages if the defect that triggers the liability claim was caused by or is the responsibility of the Contractor or one of its suppliers.We or a third party commissioned by us shall be entitled to rectify the delivered object also if the Contractor holds industrial property rights.
Any statutory and/or contractually agreed claims and rights due to legal and material defects shall become time barred in accordance with the statutory provisions.
In addition to the suspension of the time bar period in cases provided by law, the time bar period of defect claims and rights shall also be suspended for the period between the reporting of a defect and the remediation of this defect. The time-bar period shall start completely anew for defective deliveries or services if they need to be wholly or partially repeated by a subsequent fulfilment in the form of a subsequent delivery or if a subsequent fulfilment is made in the form of a subsequent improvement.
The Contractor must maintain an operations and product liability insurance with a minimum coverage of EUR 5 million per insured event for the term of the Agreement, including the guarantee, warranty, and, respectively, time-bar periods. Upon request, the Contract must submit documents proving its insurance protection; in individual cases, lower coverage amounts will be coordinated with us.
We shall take out transport insurance for all shipments delivered directly to us (for example, deliveries within the framework of purchase agreements, work and materials contracts, maintenance contracts, and contracts regarding specially manufactured products, but not for the delivery of materials for use by the Contractor in our factory).
All information, including drawings and other materials, that we need for assembling, operating, maintaining, or repairing the delivered items shall be made available to us free of charge by the Contractor, on time and without any special request. Our rights under §§ 434 para. 2, 437 BGB shall remain unaffected.
Access to the factory/construction site compound
When accessing our factory/construction site premises, all persons must follow the directives of our specialized personnel. In all other respects, the Contractor shall obtain a copy of, and observe, the regulations that apply for the respective premises (such as safety regulations).
Insofar as the Contractor leaves behind waste as understood in the waste legislation, it shall, subject to a written agreement to the contrary, recycle or remove this waste at its own costs and according to the waste legislation provisions. Ownership, risk, and responsibility as set forth in the waste legislation, shall be transferred to the Contractor when the waste is produced.
Liability due to the culpable injury to life, limb, or health, as well as liability as set forth by the Product Liability Act [Produkthaftungsgesetz] shall remain unaffected.
The Contractor undertakes to confidentially handle information, knowledge, and materials, such as technical and other data, measurement values, processes, business experience, business secrets, know-how, drawings, and other documents (hereinafter: INFORMATION) that it obtains from us or learns from our sphere or the sphere of a different corporate affiliate, to not forward such INFORMATION to third parties, and to use it only for the purpose of executing the respective order/contract. The Contractor undertakes, at our request, to surrender all INFORMATION it has been provided with physically, such as documents, models, samples, and the like, without delay and without retaining any copies or notes. In addition, the Contractor shall, at our request, delete without delay its own notes, compilations, and assessments that contain INFORMATION and confirm this to us in writing. We shall be entitled to the copyright of all INFORMATION.
All drawings, drafts, etc. that the Contractor produces at our express request shall become our property, without any additional compensation and regardless of whether they remain in the Contractor’s possession. Any potential declarations by the Contractor that indicate the opposite or that cannot otherwise be reconciled with the above, for example, if such declarations are noted on documents handed out to us, shall not be binding.
The Contractor may refer in its informational and advertising material to the business relationship that exists between us only with our express prior written approval.
Prohibition of assignment
Assignments by the Contractor are prohibited, except in the cases set forth by § 354a of the Commercial Code [Handelsgesetzbuch] (HGB); exceptions exist only as per additional regulations in these General Order Terms [sic: the inconsistency of the designation is in the German] and shall be effective only with our written approval.
Both Parties may assign or transfer an order/contract to another person only with the prior written approval of the other Party, whereby this approval may not be unreasonably refused; however, such prior written approval can be dispensed with for assignments or transfers that are made a) as part of the transfer of the entire or essentially the entire business of the transferring Party, or b) to an enterprise affiliated with the transferring Party, provided that the transferring Party reports the transfer beforehand in writing to the other Party. In each case, the assigning Party shall be jointly and severally liable with the assignee with regard to the assigned order/contract.
A delay in exercising a right under these General Order Terms shall not constitute either an express or tacit waiver, nor any tolerance and shall not stand in the way of exercising such a right in future.To the extent that, at any point in time, a provision of these General Order Terms is or becomes unlawful, ineffective, or unenforceable according to law of any country, the remaining provisions shall not be affected or compromised in any way.
Legal venue, applicable law, and adherence to our Code of Conduct
If the Contractor is a business person, the exclusive legal venue shall be the place of domicile of our company as set forth in the articles of association. However, we shall be entitled to file actions with a court that is competent for the place where the Contractor maintains a registered establishment. The order and the legal relationship between the Contractor and us shall be subject to the material law of the Federal Republic of Germany, with the exception of the principles of international private law. The United Nations Convention on Contracts for the International Sale of Goods from 11 April 1980 shall not apply.