General Conditions of Purchase
(Version 7 – 2009) Halfen GmbH
Last Updated: 1st July 2009
§ 1 Principal Terms and Conditions
These general terms and conditions of purchase shall apply exclusively. Any terms and conditions of the Supplier that conflict with or deviate from these general terms and conditions of purchase shall only be deemed valid with the specific written acceptance of Halfen GmbH, hereafter known as the ‘Purchaser’. These general terms and conditions of purchase shall also apply if the Purchaser, upon knowledge of terms and conditions of the Supplier that conflict with or deviate from these general terms and conditions of purchase, unconditionally accepts the Supplier’s delivery.
Should, in the case of a particular order, terms and conditions that deviate from these general terms and conditions of purchase be used, these general terms and conditions of purchase will be considered as supplementary and subordinate.
These terms and conditions of purchase shall apply to all future business with the Supplier that differs from the aforementioned particular order.
§ 2 Offers / Conclusion of Contract / Orders
Orders, conclusions and delivery requests must be made in writing. Any form of verbal agreement, including subsequent amendments and supplements, shall only be valid when confirmed in writing by the Purchaser.
The Supplier is obliged to accept the Purchaser’s order within two weeks of the order date.
§ 3 Deliveries / Delivery Dates
Delivery schedules and shipping instructions set by the Purchaser shall be strictly complied with. Unless otherwise agreed, partial deliveries and partial services shall not be permitted.
Agreed dates and deadlines shall be binding. Compliance with delivery dates or delivery deadlines shall be determined by the delivery of goods to the appropriate premises or designated place of delivery, or the successful completion of a service and/or delivery of goods.
Should delays arise on the part of the Supplier, the Purchaser shall be entitled to assert statutory claims and, particularly after a reasonable period of time has expired without result, claim damages and withdraw from the contract in lieu of performance. Should the Purchaser claim damages, the Supplier shall be entitled to prove to the Purchaser that he is not responsible for the breach of duty.
The unconditional acceptance of a delayed delivery or service does not constitute a waiver of the damage claims to which the Purchaser is entitled on account of the delayed delivery or service. This shall be valid until the completion of the payment owed by the Purchaser for the service in question.
The Supplier may only cite the absence of necessary documents that the Purchaser was obliged to provide if the Supplier sent a written reminder yet did not receive the documents within a reasonable period.
§ 4 Prices
The prices specified in the Purchaser’s order are fixed prices.
Alterations arising as a result of cost increases that occurred subsequent to the order are not permitted. Prices are quoted carriage paid to the specified delivery location, including freight, packaging, insurance and other related costs.
§ 5 Payment
Unless otherwise agreed, payment shall occur within 15 days subject to a 3% discount, or within 30 days net, from the invoice date.
The payment period shall commence on receipt of the Supplier's invoice, but not before the complete delivery and/or acceptance of the delivery and service by the Supplier and acceptance by the Purchaser. Payment instalments and/or the invoicing of payment instalments made shall require the written agreement of the Purchaser.
Payment does not indicate the acknowledgement of a delivery or service as being in accordance with the contract.
The Purchaser shall be entitled to offset rights and retention rights to the extent permitted by law.
§ 6 Transfer of Risk / Terms of Shipment
Unless otherwise agreed in written form, the delivery shall be carriage paid. Shipment shall occur at the risk and expense of the Supplier. The place of performance shall be the Purchaser’s place of business or the delivery location specified in the order.
The goods ordered shall be sufficiently protected from any kind of damage through the use of a form of packaging and means of transport suited to the purpose and/or as stipulated by the Purchaser.
The Purchaser is only obliged to return packaging material where a separate express agreement has been made, unless the law requires otherwise.
§ 7 Transfer of Contract Execution to Subcontractors
Without the prior written agreement of the Purchaser, the Supplier is not entitled to fully or partially transfer the execution of the contract or contractual requirements to a third party. Should the agreement of the Purchaser be granted, the Purchaser’s contract partner shall remain fully responsible for the performance of the contract. At the Purchaser’s request, he shall be informed of the names of all subcontractors.
§ 8 Retention of Title / Prohibition of Assignment
The goods shall become the property of the Purchaser at the transfer of possession. The Purchaser is entitled to resell goods or incorporate goods into another product without limitation. This shall not entitle the Supplier to any claims, and the Supplier shall in particular not be entitled to retention of title or extended retention of title.
The transfer or sale of any demands or requirements taken from this contract by the Supplier requires the prior written consent of the Purchaser. § 354a of the German Commercial Code (HGB) shall remain unaffected.
§ 9 Amendments
The Purchaser is entitled to request amendments to the construction and design of delivery items and to the delivery date insofar as these amendments can be reasonably expected of the Supplier. Any cost increases or decreases or changes to the delivery date caused by such amendments shall be subject to appropriate mutual agreement.
Should the Supplier wish to make amendments (e.g. deviations from specifications, material, measurements, production methods, location of production, transfer to a third party, etc.) to or for parts that the Supplier supplies or has previously supplied according to the Purchaser’s standards, the Purchaser must be informed of such amendments before they are made. All amendments and suggestions for amendment made by the Supplier shall always require the written agreement of the Purchaser.
§ 10 Warranty
The Supplier warrants that his goods and/or services meet the agreed specifications, conform to the acknowledged rules of technology and do not contain defects that remove or impair the value or efficiency of the goods for general use or use as stated in the contract.
The Supplier warrants that the items supplied comply with the standards, industrial safety regulations, accident prevention regulations, environmental specifications and other laws and regulations in force at the time of delivery or performance.
The Purchaser shall only carry out an incoming goods inspection with regard to obvious defects, transport damages and the completeness and identity of the delivered goods. The Purchaser shall notify of any such defects within a reasonable period and shall reserve the right to carry out a more detailed inspection of incoming goods. Furthermore, the Purchaser shall notify of any defects discovered in accordance with the circumstances prevailing during the normal course of business. In this respect, the Supplier shall waive the right to raise an objection regarding the delayed notification of defects.
The Purchaser shall be entitled to full statutory claims for defects. The Purchaser is in any event entitled to, at his own discretion, demand the remedy of defects or delivery of new goods from the Supplier. The Purchaser expressly reserves the right to claim damages, particularly the right to claim damages in lieu of performance.
Claims for defects, irrespective of their legal basis, shall be subject to a period of limitation of 36 months after delivery and/or acceptance has been effected. Longer contractual or statutory periods of limitation shall remain unaffected by this.
Should the Supplier fail to commence the remedy of defects immediately following the Purchaser’s demand for this rectification, the Purchaser shall be, in urgent cases, particularly to avert imminent danger and/or to avoid disproportionately high damage, entitled to carry out the remedy of defects himself or have it carried out by a third party at the cost of the Supplier.
Should the Supplier fulfil the obligation of supplementary performance by sending a replacement delivery, the period of limitation shall start anew for the replacement goods following their delivery, unless, at the time of supplementary performance, the Supplier explicitly and appropriately reserves the right to effect the replacement delivery solely as a gesture of goodwill.
Should the Purchaser incur any costs, particularly transportation, transit, labour or material costs, or costs for an incoming goods inspection on a larger scale than normal, the Supplier shall bear these costs.
§ 11 Product Liability
Where the Supplier is responsible for any product damage, he is obliged to exempt the Purchaser from damage claims made by third parties upon first request, if the cause lies in the Supplier’s organisational sphere of responsibility and the Supplier is liable in relation to third parties.
In this context the Supplier is also obliged to reimburse any costs that occur from or in connection with a product recall carried out by the Purchaser. The Purchaser shall inform the Supplier, as far as is possible and reasonable, about the content and scope of the product recall measures to be carried out and provide the Supplier with the opportunity to make representations. Other statutory claims shall remain unaffected.
The Supplier is obliged to take out sufficient public and product liability insurance and maintain this throughout the contact period, including periods of limitation. Should the Purchaser be entitled to further damage claims, these shall remain unaffected. Upon request, the Supplier must provide the Purchaser with a duplicate of the valid insurance certificate.
§ 12 Industrial Property Rights
The delivery of goods and the Purchaser’s application of these goods shall not infringe third party industrial property rights. Upon request, the Supplier is obliged to provide the Purchaser with all industrial property rights and applications for industrial property rights that are known to him or come to his attention and which he uses in connection with the goods/services ordered or provided. Should the Supplier, in connection with the production and/or delivery of goods and services, discover that industrial property rights or applications for industrial property rights may be infringed through these actions, he is obliged to inform the Purchaser of this immediately and without request.
In the case of a culpable infringement of third party industrial property rights, the Supplier shall bear all costs for warding off claims lodged by third parties against the Purchaser as a result of the infringement of industrial property rights, arising as a result of goods delivered by the Supplier. The Supplier shall exempt the Purchaser from all claims made using such industrial property rights insofar as the Supplier is responsible for them.
If the Purchaser’s application of the delivered goods is impaired by existing third party industrial property rights, the Supplier shall bear the costs for either securing appropriate permission or modifying or replacing the parts of the delivery concerned so that the application of the delivered goods no longer violates any industrial property rights and is also in accordance with contractual agreements.
§ 13 Confidentiality, Advertising
The Purchaser reserves all proprietary rights and copyrights to all documents related to the order submitted to the Supplier, for example calculations, drawings, etc. The Supplier shall undertake not to reveal these documents to any third parties nor make them accessible unless the Supplier has received the express written agreement of the Purchaser to this effect. These documents shall be used solely for production on the basis of the Purchaser’s order. The documents shall be immediately returned to the Purchaser should the Supplier fail to accept the Purchaser’s order within the period defined in § 2. Should the Purchaser's order be accepted, the documents shall be returned to the Purchaser without request, at the latest once the order has been processed.
The confidentiality obligation shall also continue to apply after the execution of this contract. It shall expire when and if all production knowledge included in the illustrations, drawings, calculations and other documents provided has become public knowledge.
When advertising, the Supplier may only refer to his business relationship with the Purchaser if he has received prior written agreement from the Purchaser to this effect.
§ 14 Working on the Purchaser’s Premises / Accident Prevention Regulations
When working on the premises of the Purchaser, the Supplier shall be responsible for ensuring that he and any possible subcontractors observe legal and internal accident prevention regulations, safety regulations and environmental specifications.
Before commencing work, the Supplier must introduce himself to the Health and Safety Officer on the Purchaser's premises. The Health and Safety Officer shall inform the Supplier of company work rules and provide him with health and safety training.
§ 15 Declarations of Origin for Delivered Goods
If required, the Supplier shall provide the Purchaser with a supplier’s declaration and/or all documentation required by the customs authority or other authorities free of charge and without restriction. The Supplier shall compensate the Purchaser for all additional costs and any damages that the Purchaser may incur as a result of an incomplete or false declaration, insofar as the Supplier is liable for this.
§ 16 Force Majeure, Obstacles to Acceptance
In the case of events of force majeure as well as strikes, lockouts, riots, official measures, other events for which the Purchaser is not liable, or unpredictable, inevitable and serious incidents, the Purchaser shall be entitled to delay the fulfilment of his purchase commitment for the duration of the hindrance plus a reasonable lead time. Should the execution of contract become unreasonable for either party, the party concerned shall be entitled to withdraw from the contract in this respect. The Supplier may not derive any claims for damages from a delayed purchase commitment and/or withdrawal from the contract by the Purchaser.
§ 17 General Provisions
The Purchaser shall be entitled to terminate the contract without notice if an application for the opening of insolvency proceedings against the assets of the Supplier has been filed or if insolvency proceedings have been opened or rejected due to a lack of assets.
When requested by the Purchaser, the Supplier is obliged to conclude a quality assurance agreement with the Purchaser. The Supplier shall undertake to disclose his operational procedures for this quality assurance agreement.
§ 18 Severability Clause
Should any part of this agreement be void or invalid, such invalidations shall not affect the remaining parts, which will remain in full legal force and effect.
§ 19 The Law Applicable to the Contract / Jurisdiction
All legal relations between the Purchaser and the Supplier shall be made exclusively under German law, excluding the United Nations Convention on Contracts for the International Sale of Goods. The place of payment and jurisdiction shall be Langenfeld.
Additional Conditions for the Production, Use and Storage of Manufacturing Equipment
§ 20 Definition
The following terms and conditions shall apply in addition to the general terms and conditions of purchase for the production, maintenance and repair, use and storage of manufacturing equipment by the Supplier for the Purchaser. The term ‘manufacturing equipment’ covers drafts, dies, measuring and testing devices, matrices, models, samples, tools, devices, drawings and similar items and data storage devices that are required for the production and testing of products or services ordered by the Purchaser. Unless otherwise agreed, the Supplier shall produce the manufacturing equipment according to the Purchaser’s specifications at his own expense and shall grant the Purchaser the right to purchase this equipment.
§ 21 Maintenance and Storage
The Supplier shall handle the manufacturing equipment with care and at his own expense and shall ensure that it is always operational and complies with the most recent drawing revisions. Following the execution of an order and/or discontinuation of a product line, the Supplier is obliged to retain the manufacturing equipment for a further ten years.
§ 22 Use of Manufacturing Equipment
The Supplier is obliged to use the manufacturing equipment exclusively for the production of goods for the Purchaser. This shall also apply, in particular, during the retention period following the discontinuation of series production. The Supplier is obliged not to give the manufacturing equipment to nor make it accessible to unauthorised third parties. Subcontractors shall be accordingly obliged to follow these terms. The manufacturing equipment must not be reproduced, sold, assigned as collateral security, pledged or otherwise passed on without the prior written agreement of the Purchaser.