As of 01.01.2006
1. Scope of application
These general conditions of purchase are used by us with respect to
a) Legal or natural persons acting in their commercial or self–employed professional activity (entrepreneurs) at the conclusion of the contract
b) legal persons under public law or a public special assets
These general purchase conditions apply exclusively to all orders issued by us to contractors. We do not acknowledge opposing or deviating conditions of sale unless we have expressly agreed to their validity in writing. As far as special cooperation agreements with the contractor were taken in framework contracts, just–in–time–contracts and quality assurance agreements, they take precedence over these general terms and conditions. Just as prior are any agreed special terms and conditions.
2. Confirmation of order, export restraints
Unless otherwise agreed, after receipt of our order each contract is to be promptly confirmed in writing by the contractor using the duplicate order form. If there are export restrictions for the product or parts of it, the contractor will immediately inform us when ordering thereof.
The agreed payments for delivery are not paid in cash but by bank transfer to the account specified by the contractor. All payments are discharging of debt. Invoices shall be submitted in duplicate. Payment shall be made within 30 days of total receipt of delivery/ service, review and approval of the invoice.
Assignment of rights and obligations under this contract or sub–supply agreements with third parties are prohibited. The only exceptions are assignments to financial institutions in connection with refinancing of the contractor.
The contractor agrees to the offset of his claims and liabilities about us (CASTService GmbH). A list of these companies may be requested at any time. All prerequisites must be determined by the date of creation, not the maturity of the receivables. Are claims due on different dates, they will be charged with the value date of invoice. For mutual accounts, the netting agreement extends to the balance. The contractor agrees that securities existing for us or a company, the netting agreement extends to according to the preceding paragraph, shall each be liable for claims of all these companies.
6. Delivery date
Agreed delivery dates are binding and must be kept. Once the Contractor becomes aware of circumstances that may result in a delay in delivery/ service are to be immediately notified. The contractor shall then take all measures necessary for the acceleration of delivery without claiming additional costs for acceleration effort. In case of exceeding the agreed delivery date, the contractor is in default without the need for a special reminder. After unsuccessful expiry of an additional period of time set by us, we have – in addition to the assertion of damages caused by delay- the choice to continue to require the performance or withdraw from the contract and to claim damages.
The delivery must be made in accordance with the pricing as mentioned in the order. At least, however, the delivery is to carry out with internal or economy packaging suitable for transport route and form of transport. The contractor is obliged to only use the type of transport packaging that can be applied to a material recycling. In the event of any breach of this commitment, we are entitled to debit the respective contractor with the costs of disposing of the transport packaging delivered in violation of this agreement. Transport insurance is made by us, unless otherwise agreed. Every delivery is accompanied by a delivery note (in duplicate) with our order number, position number, place of receipt and, if necessary, item number. The invoice is to send to our accounting department with the same information as above.
8. Risk taking
The risk of loss or deterioration of the goods is usually passing to when reaching the contractually agreed destination and accepting the delivery item with the overall facility to be created. Furthermore, the Incoterms of the International Chamber of Commerce (ICC) Paris in its latest official release apply to risk taking.
The items to be delivered shall fulfill the commercial documents the contract is based on, as well as the CASTService factory norms, delivery instructions and technical specifications, the applicable statutory provisions (e.g. the Equipment Safety Act), relevant regulations, rules and directives (e.g. the German Accident Prevention Regulation and VDE-Standards), DIN-standards and other recognized rules of latest technology and all relevant regulations, directives and regulations of environmental protection. They shall also be equipped and suitable for appropriate use and suitably well labeled. The contractor shall carry out appropriate quality control in type and scope and apply a quality management system according to the latest state of the art. The contractor shall document the quality control. These documents are to be archived for at least 10 years and to be made available for us on request. Examinationof delivery at the factory by our officer ensures no acceptance in the legal sense.
10. Documents of production/ means of production/ models/ tools
The documents of production, means of production, models and tools made available to the contractor within the fulfillment of the delivery contract remain our property and must be labeled as such. They are to be stored separately from materials and inventories of the contractor. Pledging or other involvement of our property is strictly prohibited. In the event of a third-party disposal at our property, the contractor has to inform us immediately and make appropriate countermeasures with us. The production documents entrusted to the contractor as our property shall exclusively be used for executing our orders. They shall be returned after completion of the work. Products which have been produced with manufacturing equipment belonging to us or are funded by us in whole or in part (models, dies etc.) may only be delivered to us. Even after the contract a delivery to third parties is prohibited. Means of production built or made available by us must be kept and maintained for free. We shall be entitled to weed out our property or to claim restitution at any time. This includes granted access in the context of normal business hours.
11. Suspension/ rescission
We reservefree suspension of a job during the agreed delivery period. The agreed delivery and payment deadlines shift for the duration of the suspension. If we are hindered in the execution of a granted contract the delivery and/ or service was meant for, we shall be entitled to rescind the contract at any time. In this case we are required to reimburse the actual cost of work performed, including an appropriate part of the profit surcharge. The authorization of the amounts claimed by the contractor shall be given proof by him. In the event of the contractor or one of his creditors filing a petition of insolvency procedure over the assets of the contractor disregarding our other statutory or contractual rights, we may rescind the contract and/ or enter the contracts of the contractor and his subcontractors at our choice.
12. Warranty, complaints and liability for performance
With regard to the characteristics of investment banking an examination and, if necessary, complaint
can only take place after installation and commissioning of the delivery and/ or provision of services.
The AV does therefore not rely on late complaint because of §§ 377 or 378 of the German Commercial Code (HGB). The contractor shall guarantee the freedom of defects of his delivery and services within the bounds of statutory regulations. Any defects will be shown to the contractor in writing immediately upon detection and in proper business process. The contractor immediately corrects defects in delivery or service at our choice within statutory regulations and while maintaining our claim for damages. The expenses for the remedy of defects include transportation costs, customs costs, travel costs and labor costs as well as removal and installation costs. All costs incurred for the detection of the defect and its causes as well their remedy are also to be borne by the contractor. If the contractor falls behind with the remedy of defects, we are entitled to use substitute performance. In case of danger to life and limb, endangering operational safety, to prevent excessive damage or if it is merely about minor defects, we also have the right to use substitute performance even if the conditions of delay are not available and without further warranty is to be touched. We are also entitled to otherwise obtain replacement. The provisions of this clause 12 shall also apply to the warranty on repair and replacement. In these cases, the warranty period begins with repair and replacement. In these cases, the warranty period for repaired or as spare part delivered items starts with its commissioning. The limitation of our warranty rights is inhibited, as long as after detection of the claimed defects our claims are not rejected by the contractor in writing. In the event of conversion, we are entitled to free use of the contractor’s service until an alternative solution is ready on the spot, at the longest, however, over a period of 2 years from the written assertion of the desire to dissolve the contract. In the context of redemption of his goods and/ or services, the contractor shall restore the state that existed before. The warranty period is 24 months after acceptance of the overall system the goods and/ or services were meant for, the longest, however, 36 months after passing of the risk. The claims expire after a further 12 months. If we must give our customers an extended warranty period, the contractor is also willing to acknowledge this. We will inform him accordingly and– if permitted –give him the opportunity to examine and check the documents relating to the warranty period.
13. Product liability
If the contractor is responsible for a damage which did not take place on the delivery item itself, he releases us from any third–party claims. This includes reasonable defense costs. The contracting partners will provide adequate support for a case of product liability and allow each other access to the relevant documentations/ drawing documents/ test reports etc. under the common defense. The contractor will support the product liability insurance with an adequate defrayment of global risk of physical injury and material damage of at least € 2.5 million per damaging event and will provide examination of the police on request. The amount of the insured capital does not represent a limit to possible liability for damages.
14. Protective right of third parties
The contractor is liable for ensuring that neither domestic nor foreign protective rights will be infringed by manufacturing, delivery and use of delivery or service items ordered by us. If third parties assume liability for infringement of intellectual protective rights, the contractor is obliged to indemnify us from these claims on first written demand. The contractor’s duty of indemnification refers to all expenses that come from or in connection with the claim by a third party. Furthermore, the contractor shall at his own expenses provide the end user with the right to continue using the delivery item or modify the shown delivery item so that the copyright infringement does not longer exist.
The contractor is obliged to treat all passed technical and commercial documents and other information obtained strictly confidential and to keep them secret. He also has to oblige his sub- suppliers to strict confidentiality and secrecy. The obligation of confidentiality shall also apply after the completion of the contract. In particular, this applies to the agreed prices and their assessment principle.
16. Place of performance/ jurisdiction
The place of performance for delivery obligation happens to be the agreed or the mailing address. For any other obligations of both parts the place of performance is Aachen. It is governed by German law, although with the exception of the Law on International Sale of Goods from 05. July 1989 (BGBI. II 586). Any legal case arising from this contract shall be heard in Aachen. However, we are entitled to call upon the court being competent for the contractor’s head office.