Terms and Conditions of Purchase of TrigasFI GmbH
§ Section 1 – Area of Validity
1. Our terms and conditions of purchase are valid exclusively. We shall not acknowledge contradicting terms and conditions of purchase nor terms and conditions of the supplier if it differs from ours, unless we expressly agree to it in writing. Our general terms and conditions are also valid should we carry out delivery unreservedly, having been advised of stipulations on the part of the customer which conflict or diverge from our own conditions.
2. All the agreements made between us and the supplier for the purpose of executing this contract are to be put down in writing.
3. The terms and conditions of purchase are only valid for companies in accordance with section 14 paragraph 1 and section 310 paragraph 1 of the BGB (German Civil Code).
4. These conditions of purchase are also valid for all business transactions with the supplier in future.
§ Section 2 – Quotation – Tender Documents
1. We retain the rights of ownership and proprietary rights for all illustrations, drawings, calculations and other documents. They may not be made accessible to a third party without our express permission. On the completion of the order, all documents are to be returned back to us.
2. If a supply is demanded from the supplier, the supplier must comply with the requested type, quality, quantity and composition of the order; and if there are any deviations, the supplier must expressly make these known. The preparation of an offer is free of charge and if otherwise, the supplier must indicate this expressly. To be legally valid, declarations of acceptance and all orders require a written or telegraphic confirmation.
§ Section 3 – Prices – Terms and Conditions of Purchase for Payments
1. The price indicated in the order is binding. If not agreed otherwise in writing, the delivery price “free
domicile” includes packaging. The supplier is under obligation to withdraw packaging if we so demand.
2. In all cases, the prices are understood as net prices including VAT.
3. We shall only process invoices which comply with the conditions in our order with an indication of the order number. The supplier is responsible for all the consequences resulting from not observing this obligation.
4. If not agreed otherwise in writing, we shall pay the purchase prices within 14 days after delivery and receipt of invoice at a 2% cash discount or the net price within 30 days after receipt of invoice. The payment schedule does not commence until the receipt of the goods.
5. We are entitled to set-off and retention rights by law.
6. Claims to deliveries and services may only be transferred to a third party following our written agreement.
§ Section 4 – Time of Delivery
1. The price indicated in the order is binding. Receipt of the goods by us is of the essence as regards compliance with the delivery date.
2. The supplier is under obligation to inform us immediately in case he is unable to meet the agreed delivery time.
3. In case the of a delay in delivery, the buyer is entitled to delay damages of 1% of the delivery value at the end of each week, however, not more than 10%. We reserve the rights to additional claims. We have the right to demand a contractual penalty in addition to the fulfillment of the contract; we are under obligation to declare the reservation of the contractual penalty towards the supplier within 10 working days commencing from the receipt of the belated delivery.
4. If proof of quality was agreed to, this shall also be a crucial component of the delivery. The delivery is thereby only complete if we receive the proof of quality.
§ Section 5 – Transfer of Risks – Documents
1. If not agreed otherwise in writing, delivery shall be made free domicile.
2. The supplier is under obligation to precisely indicate our order numbers on all shipping and delivery
documents. Should he fail to do so, processing may be delayed, which we shall not be liable to.
3. The supplier is under obligation to package the goods for the necessary transportation to us to avoid damage under normal handling of the goods. The costs of handling shall be borne by the supplier. The costs of shipping insurance shall also be borne by the supplier.
§ Section 6 – Notice of Defects according to Terms and Conditions of Purchase of TrigasFI GmbH
In view of quality assurance, the supplier is under obligation to perform accurate goods issue inspection. We
shall immediately inform the supplier of defects of the delivery in writing as soon as they are detected
according to the proper conditions of business. In this respect, the supplier renounces the defense of late notification of defects.
§ Section 7 – Guarantee according to Terms and Conditions of Purchase of TrigasFI GmbH
Guarantee of the supplier
1. The supplier guarantees that the goods and services to be delivered meet the order specifications of the approved designs, the corresponding legal regulations and norms (DIN norms, EC norms etc.) the standard of the technology and the respective security regulations. They shall also carry the obligatory CE sign and a conformity certificate. The supplier also guarantees for the performance specifications and other features indicated in the confirmation of order.
Delivery of defective goods
2. In the event of the delivery of defective goods and if the respective legal and subsequently mentioned conditions exist and there are no agreements otherwise, we can demand the following:
a) Before the commencing production (processing or installation), we shall, so far this is possible, grant the supplier the opportunity to sort out or repair any defects or make replacements. If the supplier cannot execute this or if he does not do so immediately, we can, in this respect withdraw from the contract without setting new dates and shall also return the goods at the supplier’s risk. In urgent cases, for example risk of default or especially pressing deadline, we can, following agreement with the supplier, repair the defects ourselves or have a third party do so. The supplier shall bear the arising costs. If the same goods are repeatedly delivered with faults, we are, after a written warning following repetitive defective supplies, entitled to withdraw from the unfulfilled scope of supply.
b) If due to the defective supplies we incur expenses, especially transport, travel, labor, material or other costs for a delivery inspection exceeding the regular scope the supplier shall bear these costs.
c) If in spite of observing the obligations according to paragraph 6, the defect is detected following the
commencement of production, we shall – according to paragraph 439 sections 1, 3 and 4 of the German Civil Code demand for rectification or replacement for the purpose of reimbursing the transport costs as well as dismounting and mounting costs.
d) In the event of a culpable breach of duty that extends beyond the supply of defective goods (e.g. in the event of a duty of disclosure, counsel or inspection), we can demand for the payment of damages resulting from defect as well as damages to the buyer’s customers in accordance with paragraph 8 of the German Civil Code.
Consequential damage caused by defect refers to the damage that results due to the supply of defective goods to other objects other than the damages suffered by the goods themselves.
We are entitled to additional damage claims due to defective supplies resulting from paragraph 437 of the German Civil Code or directly from the regulations named there if this is contractually agreed upon.
Return of goods
3. If we have to take back goods we produced or sold due to defects caused by the supplier, the returned goods or services or if we have to reduce the sales price due to such defect or had to give in to demands of any kind, we reserve the rights of recourse towards our supplier, whereby our warranty rights shall not be subject to a deadline.
Providing spare parts
4. Upon our demand, the supplier has to supply us immediately with the replacement parts at his own cost.
Statute of limitations
5. Claims to warranty liability expire after 24 months as of passing of risk.
Conditions for claims for defects
6. Claims to damages shall not be raised if the defect is as a result of violating the operating, maintenance and installation instructions, inappropriate or improper usage, wrong or negligent handling and of course wear as well as alterations made by us or a third party in the delivery state.
7. In the event of defective suppliers, our claims shall remain unaffected in view of the Product Liability Act regarding incorrect handling and business execution without order from paragraph 7. The composition and durability warranties must be expressly defined in written details.
§ Section 8 – Product Liability – Exemption – Liability Insurance Cover
1. If no other liability agreements are met in other parts of these terms and conditions, the supplier is under obligation to compensate for damage directly or indirectly resulting from a defective supply, due to the violation of official safety regulations or due to other legal reasons the supplier is responsible for.
Conditions for compensation
a) The liability for damages only applies if the supplier is guilty of the resulting damage.
b) If we are unable to raise claims alterable by mutual consent against a third-party due to a no-fault liability, the supplier shall accept liability as he would directly towards us. The principles of paragraph 254 of the German Civil Code apply for the damage settlement between us and the supplier. This also applies in the event
of direct use by the supplier.
c) The duty of replacement is excluded if we have effectively contained the liability towards our buyers. We shall try to agree to a reduced liability in a legally acceptable scope in the favor of our supplier.
Our claims are so excluded if the damage is as a result of violation of the operating, maintenance and
installation instructions, inappropriate or improper usage, incorrect negligent handling and of course wear or erroneous repairs on our side. The supplier is liable for our measures towards damage prevention if he is under obligation by law. According to paragraphs 683, 670 of the German Civil Code as well as 830, 840, 426, he is also especially under obligation to compensate for all expenses resulting from a product recall measure performed by us or our customers. We shall inform the supplier of the scope of the product recall measures – so far this is possible – and give him the chance to answer to it.
Product liability insurance
2. The supplier is under obligation to take up product liability insurance with a coverage of 5 Mio. € per person / property damage – flat rate. If we are entitled to further claims, this shall remain unaffected.
§ Section 9 – Trademark Rights according to Terms and Conditions of Purchase of TrigasFI GmbH
1. If the supplier is responsible for product damage, he is under obligation to exempt us from third-party damage claims on first demand since the cause is in his domain and organizational area and he himself is liable for external relations.
2. The supplier guarantees that his supply does not violate the rights of a third party outside the Federal Republic of Germany.
3. If a third party raises claims against us, the supplier is under obligation to exempt us upon the first written demand asking him to exempt us from these claims. We are not entitled to make any agreements, especially to reach a settlement with the third party without the approval of the supplier.
4. The supplier shall exempt us from all expenditures resulting from the claims made by a third party.
5. The exemption does not apply if the supplier produced the supplied goods in accordance with illustrations, models or other comparable descriptions or our specifications and does not know or could not know that trademark rights will be violated as a result of the products he manufactured.
6. If the supplier is not liable according to figure 3, the buyer shall exempt him from all third-party claims.
7. The contractual partner is under obligation, to inform himself immediately of known violation risks and to give himself the chance to mutually circumvent corresponding claims.
8. On our request, the supplier shall inform us of all its published and unpublished as well as licensed trademarks and trademark applications regarding the supplied goods.
§ Section 10 – Reservation of Property Rights – Provision – Tool – Observance of Secrecy
1. If we make parts available to the supplier, we reserve the rights of ownership to them. The supplier shall execute processing or reconstruction on our behalf. If goods to be purchased are processed with other items which do not belong to us, we shall acquire co-ownership for the new product proportional to the value of our item compared to the other processed items at the time of processing.
2. If the item provided by us is inseparably mixed with other items which do not belong to us, we shall acquire ownership of the new item proportional to the value of the goods to be purchased compared to the other mixed items at the time of mixture. If the mixture occurs in a form that makes the suppliers item the major item, the supplier shall transfer part ownership to us as agreed upon. The supplier safeguards the whole or part ownership on our behalf.
3. We reserve the ownership rights of tools. The supplier is under obligation to use the tools exclusively for manufacturing goods we ordered. The supplier is under obligation to insure our tools at original value against fire, water and theft at his own cost. The supplier is also under obligation to perform maintenance and inspection work at his own cost and timely. He must inform us immediately of all technical faults. If he fails to do so, our damage claims shall remain unaffected.
4. The supplier is under obligation, to keep all the illustrations, drawings, calculations and other documents and information received from us highly confidential. He may only make this accessible to a third party If we approve it. The obligation to secrecy also applies even after the completion of this contract. The obligation to secrecy becomes invalid when the manufacturing information contained in the illustrations, drawings, calculations and other documents become publicly known.
§ Section 11 – Duty of Notification
The supplier must inform us immediately of any changes in his company or assets if they affect the
performance of the orders or put them at risk.
§ Section 12 – Court of Jurisdiction – Place of Performance
1. Our business headquarters Neufahrn serves as the place of jurisdiction. This also applies to draft and check
claims. We are however entitled to press charges against the supplier at his residential court.
2. If the confirmation of contract does not state otherwise, our business location is our place of performance.
3. The German law is the applicable law to all legal issues. The United Nations Convention on Contracts for the International Sale of Goods – CISG does not apply.
§ Section 13 – Severability Clause
If one or more provisions of these terms and conditions of purchase become partly or wholly invalidated, the validity of the other provisions and the concluded contract shall remain unaffected.