1.1 For the orderer, offers of the contractor shall be free of charge.
1.2 In order to be valid, orders shall be placed in writing. Orders placed in another way shall not be binding until a written order has been placed. Every order shall be confirmed immediately by the supplier. Any subsequent agreements shall be confirmed by the orderer in writing before they become binding for the orderer. All of the supplier’s writings shall contain the order number and the date of the order as well as the material number.
The waiver of this requirement of the written form shall also require the written form. The supplier’s business terms shall only be allowed as far as they do not contradict these purchase terms and conditions or limit or exclude any of the orderer’s statutory rights. This shall also apply if the orderer does not object to contrary terms and conditions or accepts the delivery without objection. If the supplier fulfils an order, this shall be considered an acceptance of these purchase terms and conditions. The supplier shall be liable towards the orderer like for its own infringements of the agreement for the compliance with the contractual obligations also in the event of contracting subcontractors.
2.1 The agreed dates shall be binding. The arrival of the goods at the receiving point or the point of use indicated by us or the complete acceptance in due time shall be decisive for the compliance with the delivery date or the delivery period. The delivery date shall only be complied with at the delivery of the goods and the agreed technical documentation.
2.2 In the event that the supplier recognizes that an agreed date cannot be met for any reason, the supplier shall give us written notice immediately and state the reasons for the delay and the respective period.
2.3 The supplier shall only be entitled to claim relief by reason of not having received necessary documents / data to be delivered by us, if he should not have received them despite a written reminder within an acceptable period of time.
2.4 The supplier shall be obliged to indemnify us for any damage directly or indirectly caused by the delay. The acceptance of a delayed delivery or performance shall not be deemed to be a waiver of claims for compensation.
2.5 In the event that the contractor does not comply with the agreed delivery dates, after missing the agreed delivery date a contractual penalty amounting to 0.5 per cent per each calendar week that has started up to a maximum of 5 per cent of the contract value shall be due.
2.6 Early supplies or partial deliveries shall require the orderer’s consent. In the event that this consent was not given, the goods may be sent back at the supplier’s expense. If the goods are not sent back in the event of an early delivery which lacked the orderer’s consent, the goods shall be stored until the delivery date at the supplier’s cost and risk.
2.7 We only accept partial deliveries in accordance with an agreement which was expressly given. In the event of agreed partial deliveries, the remaining quantity shall be indicated.
2.8 Force majeure and industrial action shall not release the contracting parties from their obligations to perform the agreement for the period of the disturbances and to the extent of their effect.
Within reasonable limits, the contractual parties shall be obliged to immediately provide the necessary information and to adjust their obligations to the changed conditions in good faith.
We shall be released from the obligation to accept the ordered delivery / performance fully or partially and insofar shall have the right to rescind from the agreement, if the delivery / performance should - considering economic aspects - not be utilisable anymore at our company due to the delay caused by the force majeure or the industrial action, respectively.
3.1 Any drawings or other written documents, models and tools which were left to the supplier for the completion of an order, shall remain in the orderer’s ownership and shall be sent back free of charge after the order has been completed.
3.2 We reserve our ownership rights and copyrights of abovementioned drawings and of other written documents as well as of the drawings and written documents created by the contractor on the basis of the orderer’s information; it shall not be allowed to further use or to reproduce or to disclose them to third parties. The contractor shall be liable towards the orderer for any damages which occur through an infringement of this provision.
3.3 The contractor’s warranty and guarantee obligations regarding the delivery item shall not be affected by the orderer’s consent regarding drawings, calculations, and other technical documents. This shall also apply to suggestions and recommendations of the orderer.
4.1 The agreed prices shall be fixed prices. Changes, which result in unavoidable changes of costs, shall lead to a written offer and after an agreement regarding the price they shall lead to price adjustments, changes in orders or further orders. Costs for packing, freight and transport to the shipment address or point of use, respectively, designated or by us shall be included in these prices and shall be indicated separately in the invoice. The way of pricing shall not affect the agreement regarding the place of delivery.
4.2 The shipment shall be made at the supplier’s risk. The risk of any deterioration, including the accidental perishing shall remain with the supplier until the delivery to the shipment address or point of use designated by us.
4.3 In the event that we are exceptionally invoiced separately for packaging, we shall be entitled to send carriage free back to the supplier packages which are in a good condition in exchange for a compensation of 2/3 of the value indicated therefor in the invoice.
4.4 The delivery item shall be shipped packed and free of charge to the receiving point designated by the orderer. On the shipping document (consignment note, parcel mailing form, bill of lading, etc.) shall be indicated signs, numbers, the order date as well as the receiving point. The delivery address indicated by the orderer shall be exactly complied with. A delivery note indicating the order number shall be enclosed with every individual shipment. In the shipping documents, every order shall be treated separately. Unless expressly otherwise agreed, for the calculation on the basis of the weight or for standard prices, the officially determined weight shall be decisive. In this case, tools or equipment may not be shipped together with the delivery items; otherwise the supplier shall bear the costs of reloading. The weight indicated in the offer (quotation) shall be complied with; a margin of 5 per cent shall be permitted. Delayed deliveries of remaining quantities shall be made carriage free and free of expenses for the orderer. Additional freight charges, which need to be paid due to the usage of a faster mean of transport in order to reduce the supplier’s delay, shall be completely borne by the supplier.
5.1 In the event that an acceptance of goods is agreed, the acceptance date shall be determined after a written request of the contractor. The result of the acceptance of goods shall be stated in an acceptance certificate.
5.2 The relevant costs of the acceptance shall be borne by the contractor. The orderer and the contractor shall bear the personnel costs incurring to each of them.
6.1 Invoices shall be issued in duplicate, whereby the second copy shall be designated clearly visible as such copy. The invoice shall include the order number and the order date. In addition, every invoice shall separately indicate the turnover tax. The invoice shall be sent separately to the billing address stated in the order.
6.2 Payments shall be made after receipt of the invoice, the delivery item and the agreed documentation. The orderer shall comply with the maturity date of the invoice and pay them as collective invoice always in the last week of the month in which invoices are due. When doing so, the orderer shall make sure that the payment will be received in the month in which the payment is due. This procedure shall not give reasons for a delay in payment. A discount of 3 per cent shall be due if payment is made earlier by the orderer on request of the supplier. The orderer reserves the right to choose the payment method (e.g. bank transfer, cheque). Claims against the orderer may only be assigned to third parties with the orderer’s consent. 6.3. For organisational reasons, payments of the orderer shall always be made without examination of the supplier’s performances. These payments shall not constitute any acknowledgement and shall not include the orderer’scdeclaration that the performances are accepted as in conformity with the agreement.
6.4 The orderer reserves the right to acknowledge excess or short deliveries.
7.1 The supplier shall guarantee and warrant that all items supplied and all performances performed are in accordance with the best available technology, the relevant legal provisions and the rules and regulations of authorities, professional associations and trade associations. For the passing of the risk, the Incoterms (currently the Incoterms 2000) as last amended at the time of the conclusion of the agreement shall apply, as far as the pricing on that basis has been agreed. If in particular cases derivations from these provisions shall be necessary, the supplier shall be obliged to obtain our written consent therewith. The supplier’s guarantee or warranty obligation, respectively, shall not be affected by this consent. In the event that the supplier has reservations against the method of performance required by us, the supplier shall immediately give us written notice thereof. We shall notify the supplier immediately in writing of obvious defects of the delivery / performance, as soon as they are detected under the conditions of an orderly course of business.
7.2 Upon request, the supplier shall immediately after the request and free of charge (ancillary costs included) remove any defects of the delivery / performance which have been given notice of during the guarantee or warranty period, respectively, at our discretion by repair or by exchange of the defective parts. These defects shall also include the absence of warranted characteristics and not receiving guaranteed data. Any further statutory claims, particularly claims for rescission, reduction of the purchase price or compensation shall remain unaffected.
7.3 In the event that the supplier shall culpably not comply with its guarantee or warranty obligation within a reasonable time limit set by us, then we ourselves may take the necessary measures at the supplier’s cost and risk without prejudice to the supplier’s guarantee or warranty obligation or make third parties taking these measures. The supplier shall advance a reasonable amount of money for that. In urgent cases, we shall be entitled to remedy the defect ourselves or make third parties doing so after coordination with the supplier. In accordance with our obligation to reduce damages, we shall be entitled to remove small defects without prior coordination and to charge the supplier with the expenses without the guarantee or warranty obligation of the supplier being thereby affected. The same shall apply if exceptionally high damages are threatening.
7.4 The statutory claims and/or claims that are contractually agreed regarding material defects shall be subject to a limitation period of two years after delivery or acceptance of the performance, unless the law and/or the agreement do provide for longer periods. In the event of defects of title these claims shall be subject to a limitation period of thirty years. This limitation period shall start on delivery of the delivery item to us or the third party designated by us and at the reception or utilisation point stipulated by us. For devices, machines, and facilities, the guarantee or warranty period, respectively, shall start at the acceptance date which is stated in the written acceptance certificate of our purchasing department. For parts of the delivery which could not remain in operation during the examination of the defect or the removal of the defect, an ongoing guarantee or warranty period, respectively, shall be extended by the period of the interruption of the operation. The guarantee or warranty period, respectively, shall start anew at this date for repaired parts or parts supplied as a replacement notwithstanding the statutory suspension of the duration of such a period.
7.5 In the event that on the basis of the infringement of governmental safety regulations or of domestic and foreign product liability provisions or laws a claim is made against us due to a defectiveness of our product which results from the goods of the supplier, then we shall be entitled to claim these damages from the supplier insofar as these damages are attributable to the products supplied by the supplier. These damages shall also include the costs of a product recall program carried out as a precaution. The supplier shall designate the items of the supplier in a way in which these are permanently recognisable as the supplier‘s products. The supplier shall have in operation a quality assurance system of such character and size as is appropriate to correspond with the best available technology, e.g. in accordance with DIN [German Industrial Standard] ISO 9001 and/or DIN ISO 14001. We shall be entitled to examine the supplier’s system after coordination by way of quality audits. The supplier shall enter into a respective quality assurance agreement with us, insofar as we deem it necessary. In addition, the supplier shall insure itself against all risks from the product liability and provide us with an insurance police if requested. The amount of the insurance sum is still to be determined.
7.6 The removal and the return of rejected delivery items shall be made at the supplier’s cost and risk. Replacements shall be supplied and assembled at the supplier’s risk free utilisation point. A new warranty period shall start for exchanged or repaired delivery items.
The contractor shall be liable for all damages arising from the infringement of provisions of the Immissionsschutzgesetz [German law concerning the protection against harmful effects on the environment through air pollution, noise, vibrations, and similar factors], the Altölgesetz [German law for the disposal of waste oils], the Wasserhaushaltsgesetz [German water resources management law], the Abfallbeseitigungsgesetz [German waste disposal law] and the regulations existing in connection therewith. This shall release the orderer from any claims of third parties which are asserted against the orderer due to an infringement of these laws.
The supplier undertakes to fulfil the order with due regard to all relevant security and accident prevention regulations and also undertakes to supply the relevant safety devices. Upon an assembly, apart from the mentioned regulations the special regulations set by the factory shall be taken into account. Before the start of the assembly, the supplier shall ask about the existence of special regulations and their content. In the event that protective devices that might possibly be necessary are not included in the total order price, this fact should be separately pointed out to the orderer.
In the event of the invalidity of individual provisions of this agreement, the other provisions shall entirely remain in force. Forthwith, instead of invalid provisions rule shall apply which are closest to what was intended in an economic sense in accordance with the sense and purpose of the invalid clause and the statutory provisions. The supplier undertakes to treat all commercial and technical details which are not obvious and which are disclosed to the supplier during the business relations as confidential and undertakes not to disclose them to any third parties. The supplier shall oblige its subcontractors accordingly. The supplier shall not be entitled to transfer the order to third parties without our previous written consent. Unless something else was expressly agreed, the place of delivery or performance for the delivery or performance obligation shall be the shipping address or utilisation point, respectively, required by us. The place of jurisdiction, including for Urkundenprozesse [German Civil Procedure: summary procedures where plaintiff relies entirely on documentary evidence] shall be Chemnitz. The relation between the supplier and our company shall exclusively be governed by the law of the German Federal Republic. The regulations of the United Nations Convention on Contracts for the International Sale of Goods as of 11 April 1980 and similar international regulations, however, shall be excluded.
The documents pertaining to the offer, such as figures, drawings, specifications of weights and dimensions shall only be approximately authorative, unless they are expressly designated as binding. The supplier reserves the ownership right and copyright of estimates of costs, drawings, and other documents; they may not be disclosed to third parties. The supplier shall be obliged to disclose to third parties schemes which were designated as confidential by the customer only with the customer’s consent.
The written order confirmation of the supplier shall be decisive for the scope of delivery. In the event of an offer of the supplier with a time limit which has been accepted in due time, the offer shall be binding unless an order confirmation has been made in due time. Supplements and changes shall require the supplier’s written confirmation.
3.1 Unless there is special agreement, the prices shall be ex works including loading at our premises and excluding packaging. The respective amount of the statutory VAT shall be added to the prices.
3.2 Unless there is a special agreement, the payment shall be made in cash without any deductions to the paying agent of the supplier, namely: 1/3 after receipt of the order confirmation, the remaining amount after delivery.
3.3 Withholding payments or any offset because of possible adverse claims of the orderer which are contested by the supplier shall not be permitted. In the event that partial invoices have not been paid in due time, ASE shall be entitled to require the payment of the total amount of the delivery item’s value before the delivery in order to prevent any damages.
3.4 Agreements about additional prices shall be made regarding requests of changes or extensions of the scope of delivery by the orderer.
3.5 In the event that too high amounts have been paid, an interest rate of 5 per cent above the respective prime rate of the European Central Bank but not less than 12 per cent shall be charged.
4.1 The delivery time shall commence upon sending the order confirmation, but not before the provision of the documents, permissions, approvals to be procured by the orderer and not before the receipt of an agreed prepayment.
4.2 The delivery time shall be met if the delivery item has left the factory premises before the specified date has passed or if preparedness for shipping has been stated until then.
4.3 The delivery time shall be postponed appropriately if measures have been taken in the context of industrial disputes, particularly strikes and lockouts, as well as the occurrence of unforeseen impediments, which are beyond the supplier’s control, as far as such impediments have been proven to have relevant influence on completing or delivering the delivery item. This shall also apply if these circumstances affect any subcontractors. The supplier shall also not be liable for the abovementioned circumstances if these occur during a delay in delivery which was caused before. In important cases, the supplier shall inform the orderer as soon as possible about the start and the end of such impediments.
4.4 In the event that the supplier suffers damage due to a delay which has been caused at the supplier’s fault, the supplier shall be entitled to claim compensation for the loss occasioned by the delay, and any further claims shall be excluded. This compensation shall amount to 0.5 per cent per complete week of the delay, but in total a maximum of 5 per cent of the value of that part of the overall delivery which as a result of the delay cannot be used in due time or in accordance with the agreement.
4.5 In the event that on the orderer’s request the shipment is being delayed, then the orderer shall be charged with the costs caused by the storage, but not earlier than one month after the notification of the preparedness for shipment and in the event of storage at the suppliers factory premises, however, at least 0.5 per cent of the invoice amount shall be charged for every month. However, after having fixed an appropriate time limit which has expired without any results, the supplier shall be entitled to otherwise dispose of the delivery item and to supply the orderer within an appropriate extension of the time limit.
4.6 The fulfilment of the orderer’s contractual obligations shall be a prerequisite for complying with the delivery time.
5.1 The risk shall pass onto the orderer at the lastest when the delivery items have been shipped, and namely also if partial deliveries are made or if the supplier has undertaken to provide also other services such as the costs of shipping or the carriage or the assembly. On the orderer’s request, the supplier shall insure the shipment at the orderer’s cost against theft, breakage risks, transport losses, damages by fire or water as well as other insurable risks.
5.2 In the event that the shipment is delayed due to circumstances which the orderer is liable for, the risk shall pass onto the orderer at the time of preparedness for shipment. However, the supplier shall be obliged to effect the insurances that the orderer requires at the orderer’s desire and cost.
5.3 The orderer shall take delivery of the delivered items, even if they show insubstantial defects, regardless of the rights arising from section 7.
5.4. Partial deliveries shall be permitted.
6.1 All delivered goods shall remain in our ownership [in German law: “Vorbehaltungsware“] until all claims from the supply agreement have been satisfied, particularly also the respective outstanding balance claims, to which we are entitled in the scope of the business relationship. This shall also apply to future and conditional claims, e.g. arising from reverse bills of exchange.
6.2 For us as a supplier in the sense of § 950 BGB [German Civil Code], the handling and processing of the goods which remain in our ownership shall be made without binding ourselves. In the event that the goods which remain in our ownership are processed, assembled, mixed or commixed with other goods which are not in the seller’s ownership, the seller shall be entitled to the co-owner’s share in the new goods arising from this on the basis of the proportion of the value of the goods which remain in our ownership to the remaining processed goods at the time when they are processed, assembled, mixed or commixed.
6.3. In the event that the purchaser acquires the sole ownership of the new goods, the parties to the agreement shall agree that the purchaser grants co-ownership of the new goods to the seller in proportion to the value of the processed or assembled, respectively, mixed or commixed goods which remain in the seller’s ownership and shall store the new goods free of charge on the seller’s behalf.
6.4 The supplier shall be entitled to insure the delivery item at the orderer’s cost against theft, breakage risks, damages by fire or water as well as other damages, unless the orderer has verifiably effected the insurance.
6.5 The orderer shall not be entitled to pledge the delivery item or to transfer it by way of security. In the event of pledges as well as seizures or other dispositions by third parties, the orderer shall immediately inform the supplier of this event.
6.6 In the event of behaviour of the orderer which is not in conformity with the agreement, particularly in the event of delays of payment, the supplier shall be entitled to revocation after a demand and the orderer shall be obliged to return. The enforcement of the reservation of the title as well as the seizure of the delivery item by the supplier shall not be considered a rescission from the agreement, unless the Abzahlungsgesetz [German Law Covering Instalment Sales] applies.
The supplier shall be liable for the defects of the delivery, which also include the absence of expressly warranted characteristics, to the exclusion of further claims notwithstanding section 9.4 in the following way:
7.1 All those parts which prove to be unusable or not insignificantly limited in their usability within 24 months after the acceptance because of a circumstance which has existed before the passing of the risk, particularly because of defective design and insufficient workmanship, shall at the supplier’s choice and according to the supplier’s equitable discretion be repaired or delivered again free of charge. The supplier shall be notified immediately and in writing of the detection of such defects. Repaired parts shall become property of the supplier. The supplier’s liability for essential products of third parties shall be limited to the assignment of the liability claims that he has got against the supplier of the products of third parties.
7.2 The orderer’s right to assert claims based on defects shall always be subject to a limitation period of 6 months after a claim has been made in due time, but shall not become statute-barred before the expiration date of the warranty period.
7.3 The supplier shall not assume any warranty for damages which have arisen for the following reasons: inadequate or inappropriate usage, defective assembly or commissioning, respectively, by the orderer or third parties, natural wear and tear, erroneous or careless treatment, inappropriate utilities, substitute materials, insufficient construction works, inappropriate building ground, chemical, electrochemical or electrical influences, unless they have arisen as a result of a fault of the supplier.
7.4 The orderer shall give the supplier after agreement with the supplier the necessary time and opportunity to carry out all repairs or substitute deliveries which the supplier deems necessary at its equitable discretion; otherwise the supplier shall be discharged from the liability for defects. The orderer shall have the right to remove the defect or have it removed by third parties and to require the supplier to take over the costs for the mere removal of defects on the delivery item when providing a detailed specification of costs, but only in urgent cases of a danger for the operational safety and in order to ward of disproportionally high damages (in these cases the supplier shall be notified immediately) or in the event that the supplier is in delay regarding the removal of the defect. The assumption of costs for services of any kind shall not be guaranteed.
7.5 Out of the costs arising directly from the repairs or substitute deliveries, as far as the notice of defect proves justified, the supplier shall only bear the costs of the repair or the substitute delivery including the shipping charges. The costs for the assembling and disassembling with the necessary provision of mechanics and assistants and other costs possibly arising shall be borne by the orderer or the facility operator, respectively.
7.6 Regarding the replacement and the repair, the warranty period shall expire at the expiration of the initial warranty period for the delivery item.
7.7 The supplier shall be exempted from the liability for the results arising from possible changes or maintenance works carried out incorrectly on behalf of the orderer or third parties without the supplier’s previous consent.
7.8 Further claims of the orderer, particularly a claim on the compensation for damages which have not arisen from the delivery item, shall be excluded. This exemption from liability shall not apply in the event of intent or gross negligence of the owner or senior executives and in the cases in which according to the Produkthaftungsgesetz [German Product Liability Act] there shall be a liability for defects of the delivery item for personal injuries or property damage at items which are privately used. The exemption shall also not apply in the event of the absence of characteristics which are expressly warranted, if the aim of the warranty was exactly to protect the orderer from damages which have not occurred at the delivery item itself.
7.9 Any further liability shall be excluded irrespective of its cause in law. In particular, we shall not be liable for lacks of economic success, lost profit, indirect damages, consequential damages and damages arising from claims of third parties.
In the event that the orderer cannot use the supplied item in accordance with the agreement because of omitted or deficient performance, suggestions and advice given prior to or after the conclusion of the agreement or because other accessory contractual obligations have not been fulfilled, in particular the instructions for operation and maintenance of the delivery item have not been given, to the exclusion of any further claims of the orderer the regulations of sections 8 and 9 shall be applied analogously.
9.1 The orderer may withdraw from the agreement in the event that the supplier’s entire performance should become definitely impossible before the passing of the risk. The same shall apply to the supplier’s inability to perform. The orderer shall have the right to withdraw from the agreement also in the event that of an order of items of the same kind a part of the order cannot be fulfilled in terms of the number of items and if the orderer has a legitimate interest in the rejection of a partial delivery. If that is not the case, the orderer shall be entitled to lower the consideration accordingly.
9.2 In the event of a delay of performance in the sense of section 4 of the terms and conditions of delivery and in the event that the orderer grants the defaulting supplier an appropriate additional period of time with the express declaration that after the expiration of this period the orderer will reject the acceptance of the performance and should the time limit not be met, then the orderer shall be entitled to withdraw from the agreement.
9.3 In the event that the impossibility occurs during the default of acceptance or through the orderer’s fault, the orderer shall still be obliged to make the counter-performance.
9.4 Furthermore, the orderer shall have the right to withdraw from the agreement if the supplier lets expire without effect and due to the supplier’s fault an appropriate additional time limit set for the supplier regarding a repair or substitute delivery in connection with a defect that the supplier is liable for in accordance with the terms and conditions of delivery. The orderer shall also have the right to withdraw from the agreement in other cases of the failure of the supplier’s repair or the substitute delivery.
9.5 Any other and further claims of the orderer shall be excluded, particularly those for rescission, termination, or reduction of the price as well as compensation for damages of any kind, and namely also regarding such damages which have not been caused to the delivery item itself. This exemption from liability shall not apply in the event of intent or gross negligence of the owner or senior executives and in the cases in which according to the Produkthaftungsgesetz [German Product Liability Act] there shall be a liability for defects of the delivery item for personal injuries or property damage at items which are privately used. The exemption shall also not apply in the event of the absence of characteristics which are expressly warranted, if the aim of the warranty was exactly to protect the orderer from damages which have not occurred at the delivery item itself.
In the event that a purchaser or the puchaser’s agent that is resident outside of the Federal Republic of Germany picks up goods or transports or ships goods to the areas outside of the Federal Republic of Germany, then the purchaser shall provide us with the proof of exportation which is required for tax reasons. In the event that the purchaser does not provide this proof, the purchaser shall pay the turnover tax on the invoice amount for deliveries within the Federal Republic of Germany in accordance with the applicable law.
In the event of deliveries from the Federal Republic of Germany to other EC member states, the purchaser shall notify us prior to the delivery of the purchaser’s VAT identification number, under which the purchaser carries out the taxation of intra-communal acquisitions. Otherwise, the purchaser shall be obliged to pay for our delivery in addition to the agreed purchase price the amount of turnover tax that we are obliged by law to pay.
In the event that the orderer is a merchant, a legal person under public law or a special fund under public law, legal action shall have to be taken for all disputes arising from the agreement at the court which has the jurisdiction for the supplier’s headquarters or the supplier’s branch office which carries out the delivery. The supplier shall also be entitled to bring an action at the orderer’s headquarters.
In the event that individual provisions of the agreement should be invalid, the other provisions shall remain effective. Forthwith, instead of invalid provisions rules shall apply which are closest to what was intended in an economic sense in accordance with the sense and purpose of the invalid clause and the statutory provisions.