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General Terms and Conditions Of Business

Conditions of Purchase of Motorenfabrik Hatz GmbH & Co. KG

                                                                                                               Status: September 22, 2016

 

 

 

§1

Relevant conditions, ownership rights

 

1.1

These Conditions of Purchase of Motorenfabrik Hatz GmbH & Co. KG, Ruhstorf a.d. Rott – hereinafter also called “Principal” or “we” – shall become a component part of contracts concluded by us with third parties (=contractors = suppliers) unless written deviations are agreed upon in the contract.  They shall also apply for all our future business with this Contractor.

 

1.2

Opposing general Conditions of Sale and Delivery by Contractor (= third-party CSDs) or those deviating from our Conditions of Purchase shall not become a component part of the contract.  This shall also apply if we have not individually objected to the third-party CSDs given to us or advised to us.  Our unopposed receipt of third-party services and/or deliveries (hereinafter jointly called “service“ only) shall not mean acceptance of third-party CSDs.

 

1.3

Drawings, drafts and other presentations which we make available to Contractor – irrespective of whether these are originals or copies – shall only be given to him on a loan basis and shall remain our property.  They may not be used for other purposes, copied or transmitted to third parties or otherwise made known to them, or used for services or deliveries to third parties; and they shall be returned to us at the earliest possible, upon our request or – at the latest – immediately after completion of the order.

 

1.4

If we provide parts, they shall remain our property.  Contractor shall take over the processing or remodeling for us; and upon the processing or mixing with third-party property, we shall acquire co-ownership at the value relationships of our goods versus the other goods at the time of processing or mixing.

 

 

 

§ 2

Contract conclusion, price, force majeure

 

2.1

The written form shall be required for performance contracts (order and acceptance) and performance call-offs, as well as their amendments and supplements and all other agreements relating to a contract or its handling.

 

We shall be entitled to use the text form or the telecommunication form; in this case, Contractor shall also be entitled to make statements in this form.

 

Oral agreements shall only be effective if they are immediately confirmed by one side.

 

If our orders are accepted by Contractor only with deviations, Contractor shall make explicit reference thereto at a prominent place; the contract shall only come about upon our consent.

 

2.2

As long as an explicit, written price agreement is missing, a contract shall not be concluded and a performance call-off shall not be binding for us, unless otherwise explicitly agreed upon.


2.3

Any events of force majeure as well as any kind of operating disorders which we are not responsible for and which result in a restriction or suspension of our operations shall entitle us to postpone the fulfillment of acceptance obligations taken over; or – if the performance is no longer of interest for us at a later point in time – to withdraw from the contract entirely or in parts.  Force majeure shall be equivalent to strike, lockout and other circumstances at us or at third parties which persistently disturb our flow of operations and thus seriously interfere with the fulfillment of our obligations or render it impossible for us.  We shall be obligated to inform Contractor as early as possible and reasonably about such situations and their effect on our business relations.

 

 

 

§ 3

Orders, offers, content of delivery and performance

 

3.1

We expect Contractor to declare to us within one week whether he accepts or rejects an order placed by us; our right shall remain unaffected to revoke an order until receipt of the acceptance declaration.

 

3.2

In the absence of any other explicit declaration, any price statement shall be understood such that the goods or services shall be surrendered to us in Ruhstorf a. d. Rott or at the explicitly stipulated other place of delivery, or, respectively, that it shall be rendered there; and that all costs, charges, fees, taxes, customs, insurances, freights and packaging which are due or justified until then shall be included in the price.

 

3.3

Unless Contractor explicitly, unambiguously, clearly and in writing declares otherwise in his offer or upon contract conclusion, he shall owe to us that his delivery or service will be suitable for the purpose specified by us or resulting from the nature of the matter or usual in the industry, that it meets the statutory provisions accordingly applicable for it in Germany and that it is in compliance with the data in technical specifications, inspection certificates, certificates of origin, attestations or confirmations which we have requested until contract conclusion or which Contractor submitted to us or which have been generally published by Contractor or with his knowledge.

 

3.4

The quantities specified in the contract or in the call-off shall be exactly complied with.  Deviations shall give us the right to refuse acceptance. Without explicit agreement, Contractor shall not be entitled to partial services or successive performance.

 

 

 

§ 4

Due dates, delivery, passing of risk, contract penalty, documents

 

4.1

Stipulated due dates and deadlines shall be binding.  Decisive for compliance with the delivery due date or the delivery deadline shall be the receipt of the goods at the contractually stipulated place of delivery.

 

4.2

The risk shall only pass to us if we have unconditionally accepted the goods at the stipulated place of delivery.  For industrial services and for goods which Contractor manufactured upon our order, the risk shall only pass to us when we have received the goods and have formally and unconditionally accepted it in writing; acceptance inspection shall be performed upon Contractor’s application.


4.3

If Contractor is negligently in default of delivery or service, he shall incur – per day of delay – a contract penalty in the amount of 0.075 percent of the gross remuneration stipulated for this delivery/performance; however, altogether not more than five percent of this remuneration.  We shall reserve the right to demand penalty until payment of this delivery/performance. Our right to claim damages in excess thereof shall remain unaffected thereby, making allowance for the contract penalty; and Contractor’s right shall also remain unaffected – i.e. to prove that we did not suffer any damage.

 

4.4

The agreement of new due dates – after default has already come about or after Contractor has declared that he will not meet the stipulated due date – or the unconditional acceptance of goods delivered with a delay shall not mean any waiver of rights that we are entitled to, due to a default of delivery.

 

4.5

Delivery notes and invoices shall be provided with our order and call-off data and with our material number.

 

 

 

§ 5

Incoming goods inspection, warranty, product liability, statutory limitation

 

5.1

We shall inspect the delivered goods in accordance with the agreements individually stipulated with Contractor (e.g. quality agreements).  If those are lacking, we shall proceed with the inspections in accordance with the conditions of a proper flow of business operations, and we will optionally use inspection and test methods which are application-specific, or production-specific or product-specific.  A complaint stated within 10 workdays counted as of the date of delivery is on-time in any case, unless it concerns defects or quantity deviations which are manifestly visible already upon the delivery of goods.

 

5.2

We shall have full statutory claims without reductions in case of deficient or breached contract performance. If a consumer or another buyer of a product manufactured by us has claims against us for defects or damages which were caused or contributorily caused by goods or rendered services delivered to us by our Contractor either deficiently or in breach of obligations, the regulations of §§ 478, 479 BGB  (Civil Code) shall apply accordingly for our recourse to our Contractor, unless we have furthergoing claims on the basis of other statutory or contractual regulations.

 

5.3

Contractor shall release us from any obligation under product liability, including any expenditures of and in connection with recall actions which fall upon us due to faults or defects of the goods or services delivered by Contractor, as far as the faults or defects were caused in his area of control and organization.  This shall also apply if we have processed the goods further but Contractor is responsible for the fault which triggers the product liability.  Any additional statutory claims which we are entitled to shall remain unaffected.

 

5.4

For the statutory limitation of our claims under deficient or otherwise breached contract performance, the statutory regulations and the statutory due dates plus a period of six months each shall apply, unless longer periods of limitations apply according to court decisions or on the basis of our contractual agreement.

 

 


 

§ 6

Payments, discount, assignments, maturity, setoffs

 

6.1

Unless otherwise agreed upon, we shall make payment within 14 days after receipt of goods and invoice, at a 3% discount, or within 30 days without any deduction – always providing contractual performance and correct invoicing. We shall be entitled to pay by mailing collection-only checks or by making a bank transfer, at our discretion.  Payment shall be considered on-time if we demonstrably issued the payment order to the bank within the aforementioned due date, or if we mailed the check to Contractor.

 

If the invoices do not contain the data specified under 4.5, the 14-day period for discount deduction shall only begin upon the day on which all data requested by us are submitted.  We shall not pay for C.O.D. shipments; the costs resulting therefrom shall be borne by supplier.

 

6.2

Without our prior written consent which may not be refused without good reason, Contractor shall not be entitled to assign his receivables or have them collected by third parties.

 

6.3

If our Contractor suffers pecuniary deterioration (= debt overload, insolvency or impending insolvency) and if application is accordingly made to institute bankruptcy proceedings over his assets, all our claims against him shall be due and unconditionally payable – at the time the application for bankruptcy proceedings is made – even as far as this concerns claims maturing at a certain future date, or claims subject to a condition subsequent or precedent. As far as we have claims versus our Contractor at this point in time which are not made in terms of money or the amount of which is indefinite or uncertain, we shall be entitled to state in figures the amount owed and claim it according to reasonable discretion.

 

6.4

If insolvency proceedings are instituted over the assets of our Contractor, we shall be entitled to set off against his receivables even with claims to which we are entitled which are still conditional or which are not yet due and payable and/or to which a third party is entitled in whom we have a direct or indirect interest at this time or who will then have an interest in us. As far as claims versus the contractual partner, at this point in time, are not made in terms of money or the amount of which is indefinite or uncertain, we shall be entitled to state in figures the amount owed according to reasonable discretion.

 

 

 

§ 7

final provisions

 

7.1

For all claims and legal disputes arising under this contractual relationship, the law of the Federal Republic of Germany shall apply – with the exception of the provisions of the UN Purchase Rights (CISG).

 

7.2

Legal venue shall be D-94032 Passau for all claims and legal disputes arising under this contractual relationship.

 

7.3

Should individual provisions of these Conditions of Purchase be invalid, this shall not affect the validity of the remaining provisions.  By mutual consent, the invalid provision shall be replaced by a regulation which is equivalent to the economic purpose of the provision to be replaced.  This shall apply accordingly if the Conditions of Purchase are altogether invalid.

 

 

 

 

7.4

We expect from our suppliers the absolute compliance with all applicable laws, as well as the compliance with the fixed principles mentioned in the “Code of Conduct for suppliers of Motorenfabrik Hatz” (available on our homepage under http://einkauf.hatz-diesel.de/code_of_conduct).

 

7.5

The supplier has to make sure that the goods comply with the valid regulation versions acc. (EG) no.1907/2006 (“REACH-regulation”) for registration, rating, approval and limitation of chemical substances. In particular, attention has to be paid to restrictions and/or prohibitions of materials resp. the use and possible contents of substances have to be mentioned on the list of candidates (SVHC). The supplier is also responsible on his own authority that the goods or parts which are delivered by him absolutely comply with the valid requirements of the regulations 2011/65/EU (“RoHS”), correspond to the national regulations fixed within the European Union and are suitable for RoHS-conform manufacturing processes. Furthermore, the supplier ensures that he does not deliver materials or products containing tin, tantalum, wolfram and gold, which has been carried to end in conflict mines of the Democratic Republic of Kongo or close-by conflict areas (so-called “conflict minerals”).

 

 

 

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