§ 1 Validity of Terms
1. Our orders and contracts shall be based exclusively on these purchasing terms. They shall be considered acknowledged upon acceptance of the order or contract or upon the performance thereof. They shall also apply to all future business transactions even if we do not explicitly refer to them again.
2. Any counter confirmation made by the supplier with reference to his terms of business or sale is hereby rejected. Any reference we make to any correspondence or documents containing such terms shall not constitute the acknowledgement of such terms. Deviations from our purchasing terms shall be subject to written confirmation from us.
§ 2 Offers and Offer Documents
1. Orders may be placed in writing or by telephone and must be confirmed in writing by the supplier without delay.
2. We are entitled to cancel the order if the supplier does not accept the order within seven working days of receipt thereof.
3. In case the supplier accepts the order with deviations, he is obliged to clearly indicate this expressly in his written order confirmation. The contract is valid only if we confirm those deviations in writing.
4. We hereby reserve the title of ownership and copyrights for drawings, drafts and any other documents originated by us or third parties. These documents or their content may only be made accessible to third parties with our explicit permission. They shall be used exclusively for production based on our order. Upon completion of the order, they shall be automatically returned to us including all copies and transcripts. The obligation to maintain secrecy and prohibition of exploitation shall continue to apply subsequent to the transaction of the contract until the information contained in the documents in question becomes public knowledge.
§ 3 Prices
1. The price stated on the order shall be binding. In absence of any written agreement to the contrary, the price shall include delivery and customs duties free our works (DDP according to Incoterms 2000) or the stated delivery address including packaging. At our request, the supplier shall be obliged to take back and duly recycle packaging. Instead of taking back the packaging, the supplier may also be requested to bear the costs of recycling the packaging in the statutory manner.
2. We shall not grant remuneration of any nature for the compilation of offers, cost estimates, drawings or similar items unless this is specifically agreed to in writing.
§ 4 Delivery
1. Deviations from our contracts and orders are only admissible if given our prior written approval.
2. Agreed upon delivery periods and dates are binding. Punctual compliance with the delivery periods and delivery dates is determined by the date of receipt of the goods by us. Unless “Delivered Duty Unpaid” or “Delivered Duty Paid” is agreed (DDU or DDP Incoterms 2000), the supplier shall make the goods available in good time, taking into account the time needed for loading and shipment to be arranged with the forwarder.
3. Should the supplier be unable to comply with the stated delivery period, he shall be obliged to inform us accordingly in writing without delay. Should the supplier fail to provide us with such information without delay and as a result damages or losses are incurred, the supplier shall be obliged to provide compensation for such damages or losses. The supplier is only entitled to invoke the absence of documents to be provided by us, if he didn’t receive them within a reasonable time period after reminding us in writing.
4. In the event of delivery delays, we shall be entitled to legal claims; particularly the claim for compensation with respect to non-performance after a reasonable grace period has passed. In this case a grace period of two working days shall be considered reasonable.
5. As a principle partial deliveries are inadmissible unless we explicitly agreed to them or can reasonably be expected to accept them.
6. The values for quantities, weights and measurements established by us during the incoming goods inspection shall be factual unless proven otherwise.
§ 5 Place of Fulfilment, Transfer of Risk, Documents
1. For the supplier, the place of fulfilment shall be the destination at which he has to deliver the goods. The supplier bears all risks of loss or damage to the goods until the goods are received by us or by our representative at the location to which the goods are to be delivered.
2. All deliveries shall be made free our works or the stated delivery address unless agreed to otherwise in writing.
3. Our order number must be quoted accurately on all dispatch documents, delivery notes and invoices. We shall not be responsible for delays in payment caused by the omission of these details.
4. We shall be released from our contractual obligations should we experience force majeure or other disruptive events, e.g. strikes or legally admissible lockouts etc., for which we cannot be held responsible and which render it considerably more difficult or impossible for us to meet our obligations. In the event of temporary hindrances, however, we shall only be released from such obligations for the duration of the impediment plus a reasonable period. We shall be entitled to rescind the contract should we no longer have any interest in the contract due to the impediment.
§ 6 Checking for Defects and Guarantee
1. Acceptance is dependent on a satisfactorily examination for faultlessness, particularly with regard to accuracy and completeness, insofar and as soon as this is pertinent in the ordinary course of business.
2. Our obligation to provide notification of defects in accordance with § 377 HGB (Commercial Code) shall be considered fulfilled if we make notice of deviations in quality or quantity within 14 working days of the delivery of goods. In the case of hidden defects, a notice within 14 days of the day on which the defects were discovered shall suffice.
3. The statutory provisions relating to inadequacies in quality and title apply unless stated otherwise herein below.
4. In principle we have the right to select the type of supplementary performance. The supplier may refuse the selected type of supplementary performance if it is only possible at disproportionate expense.
5. In the event the supplier does not begin rectifying the defect immediately after our request to do so, in urgent cases, especially to avoid acute danger or greater damage, we are entitled to undertake such rectifications ourselves or to have it undertaken by a third party at the expense of the supplier.
6. In case of defects of title, the supplier shall also hold us harmless from any potentially existing third party claims, unless the supplier is not accountable for the defect of title.
7. The limitation period for claims based on defects is 3 years – except in cases of fraudulent misrepresentation – unless the item has been used in a building construction in accordance with its customary use and caused the defectiveness thereof. The limitation period commences when the product is delivered (passing of risk).
8. If the supplier fulfils his obligation to supplementary performance by supplying a substitute product, the statute of limitations for the substitute goods delivered shall begin anew after delivery thereof; unless the supplier explicitly and appropriately performed the supplementary performance in good will, to avoid disputes or in the interests of continuation of the supplier-customer relationship.
9. Should we incur expenses as a result of unsatisfactory delivery of the product, in particular related to transport carriage, labour costs, costs of material or costs of incoming goods control beyond the normal scope of the control, then such costs shall be borne by the supplier.
§ 7 Terms of Payment
1. Unless anything to the contrary is agreed to in writing, we shall pay the purchase price within 14 days of the receipt of the invoice with 3% cash discount or thereafter pay the net invoice within 30 days after receipt of the invoice.
2. The place of fulfilment for our payments shall be the location of our registered offices. Payments shall be remitted at our discretion by sending a crossed check or transferring the amount to a bank or post office account. The date on which the check is mailed or the date of the bank transfer shall be the base for determining payment within the deadline.
3. The supplier shall not be entitled to assign his claims on us to third parties without our written consent.
§ 8 Product Liability, Exemption and Liability Insurance Protection
1. Should the supplier be responsible for product damages, he hereby indemnifies us from compensation claims by third parties upon initial request, should he be liable vis-à-vis third parties. Insofar as the cause of damages falls within the area of responsibility of the supplier, the supplier shall have the burden of proof to that extent.
2. In the case of paragraph 8.1 above, the supplier assumes all costs and expenses, including the cost of any legal action.
3. In that respect, the supplier also hereby undertakes to reimburse us for any costs ensuing from or in connection with a recall campaign. When possible, we shall notify the supplier of such actions in advance and offer him the opportunity to cooperate with us and discuss the efficient execution of the recall campaign.
4. The supplier hereby undertakes to hold product liability insurance for an insured sum of at least Euro 1.000.000, -- (one million) each for personal injury damages and for material damages as well a damages on production capital. The insurance shall also cover damages abroad (including the United States of America, Canada and France). The above shall not affect further compensation claims on our part.
5. Regarding any further means, the legal statutes shall apply.
§ 9 Protection Privileges
1. The supplier shall be liable for ensuring that the protected privileges of third parties are not violated or detrimentally affected in connection with his delivery.
2. Should claims of third parties be made on us regarding a violation of protected privileges, upon our initial request, the supplier shall be obliged to release us from such claims unless the supplier is not accountable for the violation. The supplier’s obligation to release us from claims shall also include all expenses to us in connection with the demands of third parties.
§ 10 Reservation of Title, Provision of Items, Tools
1. We hereby reserve title of ownership to all parts provided by us. Processing or remodelling of such parts by the supplier shall be done solely for us. Should such parts be processed, combined or mixed with objects not belonging to us, we shall acquire co-ownership of the newly created item in the proportion to the value of our parts to that of the other objects included. The supplier shall store the items of which we have sole ownership or co-ownership of for us.
2. We also hereby reserve title of ownership to all tools provided by us. The supplier may only use said tools for the manufacturing of goods ordered by us. At his own expense, he shall insure the tools at replacement value against damages caused by fire, water or theft. He shall perform the required maintenance and inspection work in good time and at his own expense. He shall inform us of any disturbance immediately. Compensation claims on our part shall not be affected. The terms stipulated in this clause shall apply accordingly to tools produced by the supplier but which are subject to the remuneration of pro rata tool costs.
3. Persons who carry out work on our factory premises in fulfilment of the contract must observe the respective plant regulations. Our liability for accidents suffered by these persons on our factory premises is excluded except when caused by wilful or gross negligent breach of duty by our legal representatives or persons employed in the performance of our obligation.
§ 11 Documentation and Confidentiality
1. The supplier shall keep confidential with respect to third parties all business and technical information made available by us (including features which may be derived from objects, documents or software provided and any other knowledge or experience) as long and to the extent that it is not proven public knowledge, and it may only be made available to those persons in the supplier’s business facility who necessarily need to be involved in the use thereof for the purpose of delivery to us and who are also committed to confidentiality; the information remains our exclusive property. Without our prior written consent, such information must not be duplicated or exploited commercially – except for deliveries to us. At our request, all information originating from us (if appropriate also including any copies or records made) as well as loaned items must be, without undue delay, returned to us in full or destroyed. We reserve all rights to such information (including copyright, trademarks, other intellectual property rights, etc.) In the event such information is provided to us by third parties, the reservation of rights also applies for the benefit of such third parties.
2. Products manufactured on the basis of documentation drafted by us such as drawings, models and the like, or which are based on our confidential information, or manufactured with our tools or with tools modelled on our tools, may neither be used by the supplier itself nor offered or supplied to third parties. This also applies analogously to our print orders.
§ 12 Export Control and Customs
1. The supplier is obliged to obtain all required documents and approvals (export approval, customs documents, declaration of origin etc) at own expense and to pay all customs duties and taxes charged. The supplier exempts us from any demands as a result of non-compliance with export and/or import provisions.
2. The supplier shall be obliged to inform us about any applicable (re-) export licence requirements for the products under German, European or US export control law and customs regulations as well as the export control law and customs regulations of the products’ country of origin.
3. Upon our request the supplier shall provide any other foreign trade data pertaining to the products and their components in written form and shall inform us about all changes to such data without undue delay and prior to delivery to us.
§ 13 Conditions for Execution of Orders
1. If for the execution of orders further drawings or data than the ones provided by us become necessary, the supplier shall undertake the preparation and compilation of such drawings or data without special compensation.After completion, those drawings shall be provided to us for dimensional inspection and release.
2. If not explicitly demanded otherwise, for all deliveries and services German laws and regulations, VDE and VDI provisions, safety regulations of German administrations and professional associations need to be observed.
3. For delivery items (e.g. boiler, pressure vessel etc.) that require technical inspection and approval by the German TÜV or any other relevant authority, the supplier shall duly take care of all requirements at his own expense and provide to us the certificate of inspection.
4. We reserve the right to inspect the delivery items already during the production process and/or before delivery. Such an inspection will not be regarded as acceptance of the goods and will not affect the implied or explicit warranty of the supplier according to § 6 of these Purchase Conditions.
§ 14 Final Terms
1. We are allowed to save and use for trade procedure the personal data which has been acquired by us during the business relationship.
2. The supplier may only use the joint business relationship in his advertising with our explicit consent.
3. The place of jurisdiction for disputes between the supplier and us arising from any business transaction to which these purchasing terms apply shall be the location of our registered offices or the supplier’s registered offices.
4. Should individual points not be dealt with in these terms, the law of the Federal Republic of Germany applies. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) and the provisions of collision law that would demand the application of another legal system are excluded.
5. Should individual terms of the General Purchasing Terms be or become completely or partially invalid, the validity of the remaining terms shall not be affected. The invalid term shall be replaced by the legally valid term that best approximates the intended purpose of the invalid term.
Last update: September 2009
Knauf PFT GmbH & Co. KG
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