General Terms and Conditions of Purchase

for the deliveries and services

 

1.1. These General Terms and Conditions of Purchase (hereinafter referred to as “Terms and Conditions of Purchase”) shall apply to all business relations between us, SCHOELLERSHAMMER GmbH, and our business partners, contractors and suppliers (hereinafter referred to as “Supplier”). These Terms and Conditions of Purchase shall apply exclusively to all orders for deliveries and services – subject to individual provi-sions. Conflicting and deviating terms and conditions of the Supplier shall not apply, even if we do not expressly object to them. Our Terms and Conditions of Purchase shall also apply to similar future contracts without us having to refer to them again in each in-dividual case.

1.2. An order confirmation from the Supplier shall be deemed as acceptance of our Terms and Conditions of Purchase, even if the Supplier refers to its own General Terms and Conditions.

1.3. These terms and conditions only apply to companies within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law.

2.1. Orders placed by us are only effective if they are made in writing or by e-mail.

2.2. Each order must be confirmed by the Supplier immediately in writing or by e-mail. The Supplier must expressly point out any deviations from our order, in particular in the case of price reservations, in the order confirmation. These shall only be effective if they are confirmed by us in writing or by e-mail.

2.3. Verbal agreements are only effective if they are confirmed in writing or by e-mail.

2.4. We are also entitled to make delivery call-offs by remote data transmission or by machine-readable data carriers.

3.1. All prices stated in the order are fixed prices, unless otherwise agreed by individual agreement.

3.2. Supplementary and additional orders are only subject to remuneration if they are not included in the agreed scope of services and have been commissioned by us. This also applies if a lump sum is agreed.

3.3. The costs for shipping and packaging, including their disposal, shall be borne by the Supplier.

4.1. Deliveries shall be made DAP to the destination specified in the order in accordance with ICC INCOTERMS 2020. The place of delivery is also the place of performance for the delivery and any subsequent performance. If the place of delivery is not specified sepa-rately, the place of delivery shall be our registered office in Düren, Germany.

4.2. The deliveries and services must be provided on the delivery or service date specified in the order or on another agreed date.

4.3. We are entitled to postpone the delivery or service once by up to a further 6 (six) weeks up to one week before the deadline. This shall not give rise to any claims on the part of the Supplier.

4.4. The Supplier must document the delivery in writing by a person authorized by us.

4.5. As soon as the Supplier realizes that he will not be able to provide his delivery or service on time in whole or in part, he must inform us immediately in writing, stating the reasons and the expected duration of the delay. Neither this notification nor our silence in re-sponse shall constitute recognition of a new delivery date or affect our claims.

4.6. If the Supplier delivers or performs late or in a smaller quantity than agreed, the ac-ceptance of this performance shall not affect our claims.

4.7. If the Supplier is in default with the delivery or service, we are also entitled to demand compensation instead of performance after the expiry of a reasonable deadline set by us. In the case of a covering purchase, we may in particular claim any additional costs as compensation.

4.8. If the Supplier is in default with the delivery or service, we shall be entitled – in addition to further statutory claims – to demand a lump-sum compensation for default in the amount of 0.25% of the net order value of the deliveries and services with which the Supplier is in default for each calendar day after the occurrence of default, but not more than a total of 5% of the total net order value. This shall not apply if the Supplier proves in individual cases that less damage or no damage at all has been incurred. We reserve the right to prove that the actual damage caused by the delay is higher.

4.9. If our claim to the Supplier’s performance is jeopardized by the Supplier’s inability to per-form, in particular the opening of insolvency proceedings, we shall be entitled to request the Supplier to make advance payment or provide security within a reasonable period of time and to withdraw from the contract after the unsuccessful expiry of the deadline.

4.10. Our other claims in the event of a delay in delivery or performance shall remain unaf-fected. This shall also apply to withdrawal from the contract due to events of force majeure or other circumstances for which the Supplier is not responsible, insofar as the performance of the contract becomes unreasonable for us.

6.1. Invoices are to be sent in duplicate for each individual order and separately from the deliveries. They must be verifiable and include our order number and purchase order number. Value added tax must be shown separately. Any additional deliveries and ser-vices must be listed separately in the invoice with reference to the previous written agreements. If certificates of material testing have been agreed, these must be attached to the invoices.

6.2. Unless otherwise agreed, the agreed price shall be due for payment within 14 (fourteen) calendar days with a 3% discount on the gross invoice amount or without discount with-in 30 (thirty) calendar days net from complete delivery and performance and receipt of a proper invoice

6.3. Payments do not constitute acceptance or acknowledgement of a proper delivery or service

6.4. Advance or cash on delivery payments shall only be made by separate written agree-ment. The statutory provisions shall apply to default of payment.

7.1. We are not obliged to accept partial deliveries or services or services that cannot be accepted. Assumed acceptance through conclusive behavior is excluded.

7.2. We shall be entitled to refuse acceptance if any defect in the service impairs its suitabil-ity for use, even if the Supplier describes the defect as insignificant.

7.3. Completion of the service shall only take the place of acceptance if the Supplier’s ser-vice is a contractual service, the nature of which makes acceptance impossible or unu-sual according to common usage.

7.4. Information on the quality of the deliveries and services (e.g. in drawings, plans or other specifications) are agreed as contractually agreed quality – even if this is not required for the contractually agreed purpose.

7.5. The safety data sheets applicable to the goods must be handed over to us with delivery of the goods at the latest.

7.6. The Supplier undertakes to enable the customs authorities to verify the proof of origin and to provide the necessary information as well as any official confirmations that may be required. He shall be obliged to compensate us for any damage incurred by us as a result of the declared origin not being recognized by the competent authority due to in-correct certification or lack of the possibility of verification, insofar as he is at fault.

7.7. The Supplier shall carry out a quality control that is suitable in type and scope and cor-responds to the state of the art. We are entitled to convince ourselves of the type and execution of the quality inspection at the Supplier’s premises. Our customer, its agents and we ourselves are entitled to inspect the production of the items to be delivered at the seller’s plant and, if necessary, at the plants of its Suppliers.

7.8. Our rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions) and in the event of other breaches of duty by the Supplier shall be governed by the statutory provisions and, exclusively in our favor, by the supplements and clarifications contained in these Terms and Conditions of Purchase.

7.9. The statutory provisions (Sections 377, 381 German Commercial Code) shall apply to the commercial obligation to inspect and give notice of defects with the following proviso: Our obligation to inspect shall be limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, incorrect and short delivery) or which are recognizable during our quality control in the random sampling procedure. If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspec-tion is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Notwithstanding our duty to inspect, our complaint (notification of defects) shall in any case be deemed to be immediate and timely if it is sent within 10 (ten) work-ing days of discovery or, in the case of obvious defects, of delivery.

7.10. In the event of subsequent performance, the Supplier shall bear the expenses neces-sary of subsequent performance as well as the costs of removal and installation in-curred in the course of subsequent performance. The type of subsequent performance owed by the Supplier shall be deemed to have failed after the first unsuccessful attempt. We shall then be entitled, at our discretion, to demand a reduction of the remuneration (reduction) or to withdraw from the contract.

7.11. In urgent cases in which it is no longer possible to inform the Supplier of the defect and the potential damage and to set him a deadline to remedy the defect, we shall be entitled, even without setting a deadline, to remedy the defect, have it remedied or procure a re-placement at the Supplier’s expense.

8.1. We reserve ownership rights and copyrights to order documents, in particular manufacturer’s instructions and technical documents such as plans, calculations, drafts, etc., which we provide to the Supplier for the purpose of submitting an offer or executing an order or which the Supplier makes according to our specifications.

8.2. The Supplier may only use the order documents within the scope of the fulfillment of the contract for which he is responsible.

8.3. He may not disclose the documents to third parties and must keep them secret from them, unless we have expressly agreed to the disclosure in writing. In this case, the Supplier must also impose the above obligations on the third party.

8.4. After completion of the order, the order documents must be returned to us without re-quirement.

9.1. Existing claims against us may only be assigned with our express consent.

9.2. We shall be entitled to rights of set-off and retention to the extent permitted by law. The Supplier shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims.

13.1. The Supplier shall be liable without limitation in accordance with the statutory provisions and these Terms and Conditions of Purchase. Any restriction or limitation of the Suppli-er’s liability is expressly rejected.

13.2. The Supplier is obliged to indemnify us against claims within the scope of producer and product liability as the defect giving rise to liability is attributable to a product delivered by the Supplier or falls within the Supplier’s sphere of control and organization.

13.3. Within the scope of its indemnification obligation, the Supplier shall reimburse expenses pursuant to Sections 683, 670 BGB arising from or in connection with claims asserted by third parties, including recall actions carried out by us. We shall inform the Supplier of the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment. Further legal claims remain unaffected.

14.1. The reciprocal claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.

 

14.2. Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims for defects is 3 (three) years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall al-so apply accordingly to claims arising from defects of title, whereby the statutory limita-tion period for third-party claims for restitution in rem (Section 438 (1) No. 1 BGB) shall remain unaffected; furthermore, claims arising from defects of title shall in no case be-come time-barred as long as the third party can still assert the right – in particular in the absence of a limitation period – against us.

14.3. The limitation periods under sales law, including the above extension, shall apply – to the extent permitted by law – to all contractual claims for defects. Insofar as we are also en-titled to non-contractual claims for damages due to a defect, the regular statutory limita-tion period (§§ 195, 199 BGB) shall apply, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.

15.1. The Supplier is obliged to comply with the applicable statutory provisions. This applies in particular to anti-corruption and money laundering laws as well as antitrust, labor and environmental protection regulations. In particular, the Supplier undertakes not to offer or grant advantages in business dealings or in dealings with public officials that violate applicable anti-corruption regulations. The statutory regulations on occupational safety and health protection are recognized and complied with as an essential part of all oper-ating procedures.

15.2. The Supplier shall also ensure that its goods and services comply with the relevant re-quirements for placing on the market in the European Union and the European Econom-ic Area.

15.3. The Supplier ensures the payment of an appropriate wage and equal remuneration for work of equal value as well as compliance with the applicable minimum wage laws and will oblige its Suppliers to the same extent. Upon request, the Supplier shall provide evi-dence of compliance with these obligations. In the event of a breach, the Supplier shall indemnify us against third-party claims and is obliged to reimburse any fines imposed on us.

15.4. The Supplier shall respect and protect the legal interests of the German Supply Chain Due Diligence Act (hereinafter “LkSG”), namely internationally recognized human rights, the avoidance of forced and child labor and the elimination of discrimination in hiring and employment.

15.5. The Supplier shall implement appropriate and effective measures in its business area to ensure that its Suppliers also comply with the aforementioned rights and obligations.

15.6. The Supplier shall respond to inquiries regarding compliance and social responsibility in the supply chain within a reasonable period of time. The Supplier shall immediately clari-fy any risks and violations of human rights and environmental obligations within the meaning of the LkSG and inform us without delay. The Supplier undertakes to cooperate in compliance and social responsibility measures and to provide truthful and complete information. If necessary, the parties may agree on additional measures. These may al-so include training and further education of the Supplier to enforce the Supplier’s con-tractual assurances.