General Terms and Conditions of Purchase
General Terms and Conditions of Purchase of Wolf Power Systems GmbH
as of 09/2020
I. GENERAL INFORMATION
a) These General Terms and Conditions of Purchase shall be applicable to commercial transactions with business entities, legal entities under public law and special asset funds under public administrative law.
b) The Terms and Conditions set forth below shall govern exclusively with respect to our orders. We do not acknowledge any general terms and conditions of business of the supplier. All statements by the supplier made in offers or in communications accepting orders (order confirmations) which deviate from the Terms and Conditions set forth below shall only be valid if we have explicitly acknowledged them in written form. Silence or acceptance of a shipment does not constitute consent.
c) Unless otherwise agreed, any references to Incoterms shall be deemed to refer to Incoterms ® 2020.
Offers must comport with our enquiries; they shall be free of charge and without obligation to us. Any and all correspondence must be conducted solely with the offices shown on the front page of this document, and must refer to our enquiry/order data.
Confirmations and agreements shall only be binding if issued or confirmed by us in writing.
a) The prices shown in the order are binding. No change of prices is permitted without a written agreement of the Parties. The prices are deemed fixed prices and are deemed to cover everything the supplier is required to do to discharge its duty to supply goods and services to the agreed destination. VAT is not included in the stated prices. We shall only assume responsibility for payment of freight, packaging and other costs where we have expressly so agreed. The supplier shall recover and dispose of packaging at its own cost and expense.
b) Payments shall be made exclusively in euro.
c) We shall only be deemed to be in default of payment if a prior dunning notice has been given in writing.
d) The supplier shall not grant price terms to us that are any less favourable than the price terms granted to other buyers, provided that, in the specific case, the terms and conditions are comparable.
V. FORCE MAJEURE
Events of force majeure, in particular war, civil war, export or trade restrictions based on a change of the political situation, as well as strikes, lock-outs, disruptions to operations, restrictions to operations, natural catastrophes or similar events rendering it impossible or unreasonable for us to perform the contract shall be deemed to relieve us from the duty to formally accept the goods in a timely manner for so long as such events persist. No claims for compensatory damages may be derived therefrom. The Contracting Partners undertake to notify one another thereof without delay and to adjust their obligations to the circumstances in good faith.
VI. DELIVERY DATES
The agreed delivery dates are binding and must be complied with exactly.
b) We must receive the goods we have ordered on the agreed date at the destination we have indicated. In the event of a default of delivery, the statutory rules shall apply. In particular, the supplier shall automatically be deemed in default in the event it culpably fails to meet the agreed delivery date. If a grace period we set expires without result, we shall be entitled to withdraw from the contract and to demand a contractual penalty of 0.5% of the net order value per week or part thereof, to a maximum, however, of 5% of the net order value; we shall, in addition, be entitled to demand damages.
c) Notwithstanding such default, our claim for the delivery of the goods shall continue without the need for any separate declaration on our part. In the event that the default results in changes of quantities, the supplier shall have an obligation to meet/comply with such changes. We shall not bear any obligation to formally accept goods and services prior to the end of the delivery date.
VII. NOTICE OF DELIVERY
The supplier undertakes to submit a separate notice of delivery immediately upon despatch of the delivery, directly to the office within our organisation which has placed the order, indicating the precise contents of the shipment by count, dimensions, weights etc. and the order number. The delivery notice must reach us before the shipment itself in any event.
VIII. PASSAGE OF RISK
In all cases, the risk of compensation/payment shall only pass to us at such time as we formally accept the delivery.
IX. ISSUANCE OF INVOICES
a) Invoices must be submitted in verifiable format, in duplicate, to us immediately upon delivery. Duplicate invoices shall be specially labelled as such.
b) Invoices for monthly deliveries must be issued no later than the 3rd of the month following the delivery. Invoices which have not been received by the 3rd of the month following the end of the month in which the delivery took place shall only be settled at the end of the month following the month in which the invoice was received, upon unamended terms and conditions and without payment of any interest.
c) Invoices shall be based on the quantities, dimensions and volumes determined by us. In the event of any differences in weight, we shall only recognize the weights determined by us. However, the supplier may at any time provide proof of the quantities, dimensions and volumes determined by the supplier.
X. MODE OF PAYMENT
a) At our discretion, we shall make payment within 10 days’ time at a cash discount of 3%, or within 30 days net, from the date we have received both the invoice and the goods in complete and defect-free condition.
b) Payment shall be deemed to have been made in good time if we verifiably despatch our payment instructions or a cheque to the supplier within the above-referenced payment period.
c) Whenever invoices do not contain the details referred to above in Clause 7, the 10-day period for cash deductions shall only begin to run on the date on which all of the details requested by us have been provided. We shall not honour COD shipments; any costs arising from this shall be charged to the account of the supplier.
XI. SUBSTANTIVE DEFECTS
a) We shall be entitled to assert statutory claims for substantive defects to an unlimited extent. We shall have the right to select the manner of subsequent performance (remediation or provision of a replacement).
b) The supplier has the duty to ensure that the goods, including their design and labelling, correspond to the details we have furnished. Our order shall be placed/our contract carried out in a due and proper manner in accordance with the state-of-the-art in effect from time to time.
c) The supplier’s warranty shall apply for a term of 36 months from the date of manufacture. The supplier shall not deliver any goods to us which were produced more than 3 months prior. For goods on which no date of manufacture is noted, the supplier shall furnish a guarantee for a term of 36 months from the date of delivery of the goods. The statutory periods for assertion of the defence of prescription and prescription itself shall only begin to run upon expiry of the agreed warranty period.
d) We shall inspect the goods solely for their correctness, completeness and suitability. The defence of belated inspection of the goods and assertion of defects (sec. 377 German Commercial Code) is deemed precluded. The foregoing shall not apply to obvious defects.
e) Our payment for the goods shall not constitute any acknowledgment that the delivery is in line with the contract and free of defects.
f) If a material defect becomes apparent within 6 months of the transfer of risk, it shall be presumed that the item was already defective at the time of the transfer of risk, unless this presumption is incompatible with the nature of the item or the defect.
a) The supplier’s liability to us shall be governed by the statutory provisions. We do not acknowledge any disclaimer or limitation of liability.
b) In its internal relations with us, the supplier is deemed the ‘manufacturer’ of the goods to be delivered as defined by the German Products Liability Act. The supplier shall indemnify us and hold us harmless against all claims of third parties asserted against us for a defect of the goods under German product liability law or under the product liability law of EU Member States or any non-EU country if and to the extent the cause of the damage has been identified as falling within the manufacturing process and/or otherwise within the supplier’s sphere of responsibility.
c). In the event that third parties assert claims against us with respect to goods stemming from the supplier, we undertake to inform the supplier in a timely manner and to make the relevant documents available to him. The supplier shall then have ten (10) business days within which to state whether we should defend against the claim or acknowledge it. In this context, the supplier shall also be obliged to reimburse us for any expenses incurred from or in connection with any recall campaigns we may justifiably carry out. To the extent possible and reasonable, we shall inform the supplier upon request of the substance and scope of any recall campaigns to be carried out, and afford the supplier an opportunity to comment thereon.
XIII. INTELLECTUAL PROPERTY RIGHTS/DEFECTS OF TITLE
a) The supplier hereby warrants that the good is free of defects of title, in particular third-party rights. The prescription period for defects of title shall be 15 years.
b) If a claim is asserted against us by a third party for our use or possession of the goods supplied due to an infringement on a trade mark, copyright or other intellectual property rights, the supplier shall indemnify and hold us harmless against such claims. The supplier shall inform us without delay wherever it appears possible that a violation of an intellectual property right, of whatever kind, may have occurred. The supplier’s duty of indemnification shall extend to all well-founded expenses and costs incurred by us arising out of or in connection with claims asserted by third parties.
c) In the event that third parties assert well-founded claims based on intellectual property rights, the supplier shall either procure a licence, make corresponding alterations to the product in question free of charge, replace it by a product which is free of any such intellectual property rights or, if such a measure makes no commercial sense, shall take the product back and refund the costs.
d) In all further and other respects, the statutory rules shall apply.
XIV. LAWFULNESS OF ENTREPRENEURIAL ACTION / LIQUIDATED DAMAGES
(a) The supplier undertakes to comply with the laws and regulations of the Federal Republic of Germany and the European Union and to conduct its business in accordance with the standards of these legal systems.
b) In particular, the supplier undertakes to respect the laws and regulations of the Federal Republic of Germany and the European Union regarding the protection of fair competition and antitrust laws.
c) In the event of a culpable violation of the provisions of competition law or antitrust law, the supplier undertakes to pay liquidated damages to Wolf Power Systems GmbH by way of compensation.
aa) In the event of serious violations, such as price agreements, quota agreements or market and customer divisions, the supplier undertakes to pay Wolf Power Systems GmbH liquidated damages amounting to 10% of the total annual net turnover (calculated on the basis of the previous year's turnover or, if this is unavailable, the current annual turnover of the scope of supply affected by this legal violation), for each violation.
bb) In the event of any other violation, the supplier undertakes to pay Wolf Power Systems GmbH liquidated damages amounting to 3% of the total annual net turnover (calculated on the basis of the previous year's turnover or, if this is unavailable, the current annual turnover of the scope of supply affected by this legal violation), for each violation.
d) Further statutory claims by us, claims for damages by us against the supplier arising from the violation and the right to assert further damages shall remain unaffected and may be asserted independently of the liquidated damages. In the event that such claims are asserted, any liquidated damages forfeited shall be offset against the damages asserted. The supplier shall be entitled to prove that we have incurred no damages or lesser damages.
e) In the event that the supplier is convicted or in the event that a conviction is not made due solely to an act of leniency, it shall be presumed that the supplier is responsible for the violation.
XV. DOCUMENTS, INITIAL DELIVERY
The drawings, drafts and other written material provided to the supplier, irrespective of whether these are originals or duplicates, shall remain our property and may not be used, duplicated or transmitted to third parties for any other purposes; following execution of our order, the supplier shall return them to us without delay. Where the delivery in question is a first-time delivery based on drawings or samples, the supplier shall initially send us 5-10 outturn samples for our inspection and approval.
XVI. FINAL PROVISIONS
a) The law of the Federal Republic of Germany shall apply to all legal relations arising out of the supply contract. The standard law on international purchase agreements of 11 April 1980 (the ‘CISG’) shall not apply.
b) In the event that any of the terms hereof should be or become invalid, the remaining provisions hereof shall remain valid and in effect.
c) The place of performance is Gorleben.
d) The place of jurisdiction in commercial business transactions is the court responsible for the registered office of the buyer. In addition to the foregoing, we shall be entitled to opt to proceed in the courts with general jurisdiction and proper venue for the supplier.