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Purchasing Terms and Consitions of the H. Stoll AG & Co. KG
Purchasing Terms and Conditions of H. Stoll AG & Co. KG, Reutlingen
Section 1 Validity
- Our purchasing terms and conditions shall only apply for businesses, legal entities created under public law and public law special funds which are based in Germany. They shall apply for all orders – including future orders - placed in the course of a permanent business relationship. The Seller recognises these terms and conditions as being binding on him by sending us an order confirmation not raising any objections thereto or by carrying out our order.
- We shall object to the inclusion of the Seller’s terms and conditions of business. They shall not be recognised by us, in particular in so far as they are contrary to these purchasing terms and conditions. They shall not become part of the contract even in those cases in which we do not expressly object to them after receiving them. Likewise, payments made by us or the acceptance of quotes, goods or services by us shall not be regarded as acceptance of the Seller’s terms and conditions of business which are contrary to our purchasing terms and conditions.
- Our purchasing terms and conditions of business shall apply in particular for contracts for the sale and /or the supply of movables to us, regardless of whether the Seller manufactures the goods himself or buys them in from third parties (Sections 433 and 651 of the German Civil Code [BGB].
- Specific agreements made with the Seller in a specific instance shall, in all cases, take precedence over these purchasing terms and conditions. A written contract or our written confirmation shall determine the content of such agreements.
Section 2 Obtaining quotes, Enquiry documents
- All documents and items handed over for the preparation of quotes shall remain our property. They are to be returned to us in full together with the quote at our request.
- It shall be forbidden for the party to whom the documents relating to a quote are sent by us to retain our documents, to reproduce them for his own or for third party purposes and any other use.
- Costs incurred as a result of working out quotes for us or in connection with visits shall also be for the Offerer’s / Seller’s account, even in those cases in which the quote is prepared at our request.
Section 3 Orders and Conclusion of contract
- Only orders placed in writing shall be valid and are to be regarded as an offer to enter into a contract. Delivery call-offs may also be made by electronic request.
- If the Seller does not accept the order within 10 days from the order date, we shall be entitled to revoke our order. Carrying out the order within 10 days from the order date shall be regarded as acceptance of the order.
Section 4 Prices
- The prices quoted in our orders are fixed prices, even if the supply contracts are lengthy in duration. No additional demands made by the Seller will be recognised. Price increases must be recognised by us in writing.
- The prices are “franco domicile” or free other place of unloading stated in the order, including packing. If collection by us has been agreed, the prices shall be “free on truck”.
Section 5 Payment, Offsetting, Assignment of claims
- Invoices are to be presented in duplicate together with the relevant documents and data in due form after delivery. They must include our parts designation, the number of packed units, the quantity of the invoiced items - listed separately by type - gross and net weights, order date plus our order number. If invoices refer to goods from different orders the quantity for each order is to be listed separately. The Seller must state our order number in all correspondence.
- Invoices are payable at our choice within 15 days from the receipt of invoice to qualify for a 3% prompt payment discount, within 30 days to qualify for a 2% prompt payment discount or within 60 days straight net. If the goods are received later than the invoice, the terms of payment and periods of time within which payment has to be made to qualify for a prompt payment discount shall only begin to run from the agreed delivery date. If shipping documents / invoices have been raised incorrectly, the payment term shall only begin to run following presentation of the corrected invoice documents.
- In the event of default, we shall owe default interest amounting to 2.5% per annum above the base rate at that time, no less, however, than 4% per annum.
- In so far as it has been agreed that certification confirming material tests is to be furnished, they shall constitute an important and integral component of the delivery and they are to be forwarded to us together with the invoices. The payment period and period of time in which payment must be made to qualify for a prompt payment discount shall not begin before the agreed certification has been received.
- We shall be entitled to offsetting and withholding rights as laid down by law. Given this, we shall be entitled, as before, to deduct a prompt payment discount from the Seller’s prices. The Buyer may only exercise offsetting and withholding rights in the event that claims have been uncontested or finally and non-appealably established.
- The Seller may only assign his claims against us with our written consent.
Section 6 Delivery Periods and Delivery Dates
- Agreed deadlines and periods of time are binding. This shall also apply for call-off orders. Periods of time shall begin to run on the order date.
- It shall be the point in time at which the goods are received by us or at the delivery point specified by us which shall determine compliance with the delivery date or period. If it has been agreed that we are to collect the goods, the Seller shall have to make the goods available for collection, taking into consideration the normal amount of time required for loading and transportation. If acceptance of the goods is necessary, it shall be the point in time at which acceptance takes place which will decide whether the goods have been delivered in time.
- If the Seller foresees that he is unable to comply with an agreed date for whatever reason, he shall have to inform us without undue delay in writing stating the reasons and the probable length of delay. Such notification shall not preclude the assertion of claims for default damages by us in the same way as the taking delivery by us of goods or services supplied late shall not preclude the assertion of claims for default damages by us.
- If the Seller falls into arrears with rendering his performance we may, in addition to asserting other claims, demand a lump sum as compensation to cover default damages amounting to 0.1% of the net price per full working day, not exceeding a total of 5% of the net price. We shall be at liberty to prove that the damages sustained by us are higher than this amount, while the Seller shall be at liberty to prove that our damages are less than this amount.
Section 7 Dispatch regulations
- The consignments must be delivered to the address stated in the order.
- The Seller has to comply with our packing regulations. The shipping documents required are to be attached to the goods. In particular, a delivery note with the following information is to be enclosed with each consignment: delivery note number, our order number, parts designation, quantities.
- Part deliveries are only allowed with our written consent. The outstanding quantity of goods to be supplied is to be stated in the delivery note of part deliveries.
- We shall be entitled to return the packing.
Section 8 Notification of defects
- Any duty we may have to inspect the goods and notify defects shall only commence if the goods plus the relevant documents and delivery note have been received at the destination specified in the order.
- We shall only check the goods at goods inward inspection for external damage and discrepancies in terms of identity and quantity which can be ascertained from the outside. Such defects will be notified by us without undue delay. We shall reserve the right to conduct a more detailed goods inward inspection. Otherwise we shall notify defects as soon as they are identified in the course of our regular business procedures. Given this, the Seller shall waive the objection that a defect has been notified late.
- If the Seller has undertaken to conduct a goods outward inspection as a quality control measure, we shall only be obliged to notify obvious defects or defects actually discovered but not, however, to inspect the supplied goods.
- Within the meaning of Section 377 of the German Commercial Code [HGB], without undue delay in terms of an inspection means within 10 days.
- There are no formal requirements governing the notification of a defect. If the defect is notified in writing, the period of time within which the notification must be notified shall be complied with if the notification is sent before the period expires. We shall only have to furnish proof of posting.
Section 9 Quality and Documentation
- The technical specifications, features and standards stated in our orders shall constitute integral parts of the contract and they describe the nature of the goods owed by the Seller. They shall also apply for follow-up orders, order amendments and supplements. If the Seller harbours reservations about the design we wish to have, he shall have to notify us in writing without undue delay. Modifications shall be subject to our prior written consent.
- When ordering on the basis of a sample, the goods and services supplied must comply with the sample’s specifications, features and standards.
- We shall be entitled to inspect the material procured by the Seller to fulfil the order, the manufacturing process and the goods ready for delivery at his suppliers’ premises, his sub-suppliers’ premises and his sub-contractors’ premises or have such inspections conducted by a third party.
- Regardless of the above provisions, the Seller shall be responsible for inspecting the quality of his goods and services on a continual basis as well as maintaining an appropriate quality control system and to submit his quality control records to us upon request. He shall have to point out possible improvements he makes.
Section 10 Rights in the event of Defects
- Our rights in connection with material and legal defects and other breaches of duty shall be governed by the statutory regulations unless specified otherwise below.
- The Seller vouches that his goods or services as well as those of his sub-suppliers and sub-contractors are free of material and legal defects when risk passes over and that in term of design and material they comply with state-of-the-art technology, the official and technical regulations and standards in force at that time as well as accident prevention regulations.
- If the Seller’s goods or services breach third party rights in particular, this is also to be regarded as a legal defect. This shall not apply if Seller has manufactured his goods or services to drawings handed over by us or other descriptions or information which are the equivalent of such drawings and he does not ought to have known that this results in a breach of third-party’s property rights.
- Upon request the Seller shall notify us if he has used his own or licensed property rights and applications for such rights to the goods and services. Furthermore, he shall notify us without undue delay of risks of breaches and alleged breaches of which he becomes aware. Conversely, we shall also inform the Seller of them as well.
- If a defect becomes apparent within six months of the passing of risk, it shall consequently be assumed that the thing was faulty when risk passed over to us.
- In the event of material or legal defects we shall be entitled to statutory rights and claims. Regardless of the type of contract with the Seller, we shall be entitled to choose the type of cure. If necessary a cure must be rendered in a multi-shift operation, working extra hours or on Sundays and on public holidays. The Seller shall have to bear all expenses required for the purpose of cure. If, in spite of a cure being effected, the goods or services still show defects, the Seller shall have at our request to rectify the defects by means of a modifying the design or using other materials. If the Seller is in default with effecting a cure, if he disputes that there is a defect, moreover, in the event of special urgency and in the event of imminent danger, we shall be entitled to effect a cure ourselves or to have it effected by third parties. The Seller shall bear the costs incurred as a result of this.
- If there is a legal defect extant, the Seller shall, at our request, be obliged, to obtain a corresponding licence from the proprietor of the respective property right free of charge for us.
- Our other statutory rights and claims shall not be affected by the aforegoing.
- The statutory provisions shall apply for our rights and claims in the event of material or legal defects subject to the provision that the statutory period of limitation of 2 years shall be replaced with a period of limitation of 36 months beginning at the point in time at which risk passes over. The period of limitation shall start all over again for repaired parts or parts supplied as replacements when the repair is carried out or the replacement part is supplied. The period of limitation for parts which cannot be used in operations during the inspection of a defect and / or when a defect is rectified shall be extended by that length of the downtime.
- The period of limitation for our warranty claims shall be suspended until the Seller inspecting the goods to ascertain a defect notifies us of the results of his inspection or states to us that he defect has been rectified or refuses to continue rectifying the defect. The limitation of claims will come into effect at the earliest three months after the end of the suspension.
- If a claim is asserted against us on account of defects in our products or services and if these defects are attributable to the Seller’s goods or services or if the reasons for the defects are within the Seller’s sphere of organisation and control, the Seller shall be obliged, without us having to set him a period within which to effect a cure, to compensate us for all expenses we incur as a result of, or in connection with, the defects and to exempt us from all compensation claims for damages and other claims asserted against us as a result. The Seller shall also have to reimburse us for expenses arising from, or in connection with, a necessary recall campaign conducted by us.
If, in these cases, a defect becomes apparent in the Seller’s goods or services within six months from the passing of risk from us when we hand over goods or services to our client, it shall consequently be assumed that the Seller’s goods or services were defective when risk passed over to us.
The period of limitation for our claims against the Seller regulated in this paragraph shall not start earlier than two months after the point in time at which the expenses have been incurred. This suspension of the period of limitation shall end not later than five years after the point in time at which risk has passed over from the Supplier to us.
Any other rights and claims to which we may be entitled by law shall not be affected by the aforegoing.
Section 11 The Seller’s liability, Quality Control
- The Seller shall be liable for all degrees of culpability. We shall not recognise the Seller’s clauses limiting liability. In the cases of Section 10 Para (11) the Seller’s obligation to pay compensation shall however be precluded or limited to the extent that to which we have effectively precluded or limited our liability towards our buyers.
- The Seller has to conduct a suitable quality control system compliant with state-of-the-art technology in terms of scope and type and provide evidence of this to us upon request. Furthermore, he shall have to take out adequate insurance cover against the risks of product damage including the risk of a recall and show us the insurance policy for inspection at our request.
Section 12 Furnishing goods and manufacturing equipment
- Goods as well as models, samples, tools and other manufacturing equipment furnished by us shall remain our property. If such goods are processed or converted by the Seller this shall be done for us. Manufacturing equipment must not be used for goods and services destined for third parties.
- The Seller shall have to handle the goods and manufacturing equipment with care, keep them in good condition and insure them at his own expense against fire damage, water damage and theft at replacement value.
- At our request the Seller shall ascertain and notify us of the actual stock level of goods and manufacturing equipment furnished by us and held by him for our annual statement of accounts, and also more frequently if there are substantiated reasons for doing so.
Section 13 Non-disclosure
- The Seller shall be obliged to keep strictly secret all diagrams, drawings, calculations as well as other documents, information and items. They may only be disclosed to third parties with our written consent. This shall not apply in so far as the Seller has been called upon and is obliged to disclose such information as a result of instructions passed out by an official body.
- The Seller may only supply items which he has manufactured or developed to our instructions or by using documents handed over by us to third parties with our written consent.
- The above non-disclosure obligations shall also apply after an order has been handled. They shall no longer apply - subject to other rights to which we are entitled – at the earliest if, and in so far as, the manufacturing knowledge contained in the diagrams drawings calculation and other documents handed over has entered the public domain.
Section 14 Place of jurisdiction, Applicable law
- The exclusive place of jurisdiction shall be the court having jurisdiction where Stoll has its principal place of business, in Reutlingen, Germany.
- We shall moreover, be entitled to take legal action against the Seller at his general place of jurisdiction.
- The law of the Federal Republic of Germany shall apply.
Section 15 General Provisions, Place of Fulfilment
- The place of fulfilment for the supply obligation is the delivery address stated in our order. The place of fulfilment for all other obligations under this contract shall be Reutlingen.
- If a Party to the contract stops making his payments, if insolvency proceedings are opened on his assets or if the opening of such proceedings is rejected on account of insufficient assets, the other Party to the contract shall be entitled to withdraw from that part of the contract not fulfilled.
- We draw attention to the fact that we shall save the Seller’s data for the intended purposes of the contractual relationship in accordance with Sections 27 et seq of the German Federal Data Protection Act [BDSG].
- Should a provision of these terms and conditions or of the other agreements made be, or become, invalid, the validity of the rest of the contract shall not be affected as a result. The Parties to the contract shall be obliged to replace the invalid provision with an arrangement coming as close as possible to it in terms of economic success.
Section 16 Reservation of title
- The title to the goods supplied shall pass over to us when payment has been made for them in full. With the exception of the ordinary reservation of title, which we recognise, none of the Seller’s reservations of title shall apply.