GENERAL CONDITIONS OF PURCHASE As at: 13th September 2016
1. General provisions
1.1. The following General Conditions of Purchase (GCP) shall apply exclusively. Terms of the supplier that are contradictory to, or deviate from these GCPs shall not be recognised unless expressly agreed otherwise in writing between the parties or obligatorily prescribed by law. This shall also apply if the SCHÄFER Metallurgie GmbH (hereinafter called SCHÄFER) accepts the supplier’s delivery without any reservations in awareness of the conditions of the supplier that are contrary to, or deviate from, these GCPs.
1.2. All agreements between SCHÄFER and the supplier regarding the execution of this contract shall only be effective, if they were laid down in writing.
1.3. With the first delivery in conformance with these GCPs, the supplier recognises their validity also for all further orders.
1.4. The GCPs only apply to entrepreneurs as defined by Section 310 paragraph 1 of the German Civil Code.
2. Offer – other documents
2.1. The supplier can only accept an order from SCHÄFER within a term of two weeks.
2.2. SCHÄFER shall reserve title and copyright to illustrations, drawings, calculations, other documents and tools, etc. as far as they are object of the order. The documents shall be exclusively used for the manufacture of the product based on SCHÄFER’s order. The illustrations, drawings, calculations, other documents and tools, etc. shall be returned without being requested following the complete execution of the order.
2.3. The transfer of illustrations, drawings, calculations, other documents and tools to third parties is only permissible if SCHÄFER has expressly consented to this in writing beforehand. Otherwise these documents must be kept secret. The duty to maintain secrecy shall apply following the complete processing of the order; it expires if and insofar the information contained in the documents handed was generally known.
3. Prices and terms of payment
3.1. The price stated in the order contains the statutory rate of VAT and is binding. The price includes delivery “free domicile” including packaging.
3.2. Invoices shall only be processed, if they contain the order number stated there – according to the specifications made in the order – and state the net amount, the statutory rate of VAT and the gross amount. The supplier is responsible for all the consequences that arise due to the non-observance of these obligations, if he cannot prove that he is not responsible for this.
3.3. The price that has been agreed upon shall be paid within 14 days, calculated from the date of delivery and the receipt of the orderly invoice with a 3% discount, or within 30 days following the receipt of the invoice without any deductions. A payment is to be regarded as being made in time even if the supplier receives, within that period, a crossed cheque in fulfilment and covering the invoice sum.
3.4. The payment shall be subjected to the orderly delivery and correctness with regard to price and calculation.
3.5. The awareness of a defect liable to guaranty shall entitle SCHÄFER to retain the payment until the fulfilment of the guaranty obligation.
3.6. The supplier shall only be entitled to offset claims of SCHÄFER arising from this contract against undisputed, conclusively recognised or acknowledged claims.
3.7. The assignment of a claim vis-à-vis SCHÄFER shall come into effect only after the previous written consent by SCHÄFER.
4. Delivery date
4.1. The delivery date stated in the order is binding.
4.2. The supplier is obliged to immediately inform SCHÄFER in writing if circumstances arise or become recognisable from which it emerges that the agreed delivery date cannot be observed.
4.3. SCHÄFER shall be entitled to refuse the acceptance of goods, performances, etc. which have not arrived at the place of delivery at the delivery date stated in the order, and to send them back for account and risk of the supplier or to put them on store at a third party.
4.4. In the event of default in delivery SCHÄFER shall be entitled to the claims for damages in accordance with the statutory provisions. In particular SCHÄFER is entitled to demand compensation for damages instead of performance and to withdraw from the contract following the fruitless expiry of a period of grace. The supplier is entitled to prove that he was not responsible for the failure to comply with his duty if SCHÄFER claims compensation for damages.
5. Transfer of risk and documents
5.1. The delivery shall be carried out free domicile.
5.2. The supplier is obliged to state SCHÄFER’s exact order number on all the shipping documents and delivery notes. If this does not occur then SCHÄFER is not responsible for delays in the processing.
6. Investigation of defects and warranty
6.1. SCHÄFER is obliged to investigate the goods for evidence of potential deviations in the quality and quantities within an appropriate term. The notification of a defect shall have been carried out on time, if this is received by the supplier within ten working days following the receipt of the goods or since they were discovered in the case of concealed defects. The supplier relinquishes to the plea of a delayed notice during this time.
6.2. The warranty liabilities of the supplier shall keep to the statutory regulations on defect claims, it not otherwise agreed upon by the parties. In particular SCHÄFER is entitled to demand based on SCHÄFER’s
choice the abatement, the rectification of a defect or the delivery of a new item. The right to compensation for damages, in particular the right to compensation for damages instead of performance remains expressly reserved.
6.3. SCHÄFER is entitled to have defects rectified at the supplier’s expense or to provide replacement by another supplier. The same shall apply if the supplier was in default in respect to the fulfilment of a warranty liability.
6.4. The supplier shall be liable for the replacements and rectifications to the same extent as agreed for the original delivery object that is to say also for the costs of transport, toll and labour, without limitation to that. The warranty period for the replacement delivery starts at the very earliest at the date of arrival of the replacement delivery.
6.5. The limitation period amounts to 36 months since the arrival at the place of delivery.
7. Product liability, exemption and third party liability insurance cover
7.1. If the supplier is liable for damage to a product he shall be obliged to thus exempt SCHÄFER from the claims for damages of third parties upon the first request, if the cause of this is in the sphere of control and organisation of the supplier and he therefore is liable himself vis-à-vis third parties.
7.2. Within the realms of his liability for cases of damage as defined by item 7.1. the supplier shall be obliged to reimburse SCHÄFER for potential expenditure in accordance with sections 683, 670 of the German Civil Code or in accordance with sections 830, 840, 426 of the German Civil Code, which results from, or in conjunction with, a recall action carried out by SCHÄFER. SCHÄFER shall inform the supplier of the content and scope of the recall measures to be carried out and provide him with the opportunity of making a statement insofar as this is possible and reasonable. Other statutory claims shall remain unaffected by this clause.
7.3. The supplier shall undertake to take out a product liability insurance policy with an amount covered of € 3 million per person / case of property damage – as a flat rate; if SCHÄFER is entitled to more far reaching claims for damages, then these shall remain unaffected.
8. Industrial property rights
8.1. The supplier promises that in conjunction with his delivery the right of third parties do not oppose to the intended use of the purchased goods, in particular that the protective rights of the third parties shall not be violated.
8.2. The supplier is obliged to exempt SCHÄFER from such claims upon the first written request if these are enforced by third parties. In this context SCHÄFER is not entitled to conclude any agreements with third parties – without the supplier’s consent – and in particular to effect a compromise.
8.3. The duty of the supplier to exempt comprises all the expenditure, which SCHÄFER necessarily incurs as a result of, or in conjunction with, the claims made against it by a third party.
8.4. The limitation period amounts to ten years since the conclusion of the contract.
9. Data protection
Until revocation by the supplier, SCHÄFER shall be authorised to collect, save and process, or have processed by third parties, personal and other data of the supplier entrusted to it, such as company name, address, telephone number, fax number, Email address, homepage, contacts, taxpayer’s number, VAT No., VAT ID No., articles, own and supplier article numbers, order quantities, order dates, order prices, terms of delivery and payment, shipping method, information on the carrier, address for invoices and deliveries, and the annual turnover, in the framework of their intended use. In the event of the data being processed by third parties, SCHÄFER shall oblige such third parties to maintain strict secrecy.
10. Legal venue, applicable law and place of performance
10.1. The place of performance shall be the place of business of SCHÄFER; if not otherwise agreed upon.
10.2. The legal venue shall be the place of business of SCHÄFER; SCHÄFER shall, however, be entitled also to sue the supplier at his domicile.
10.3. The contract and all claims arising there from shall be subject exclusively to the law of the Federal Republic of Germany. The international purchase law shall be excluded. This shall apply expressively also to the application of the convention of the United Nations regarding the contracts on the International Sale of Goods (CISG). Basis of the contract is the text of the General Conditions of Sale and Delivery in the German version.