Terms and Conditions of Purchase of Pumpenfabrik Wangen GmbH
1. Scope of application
The following terms and conditions of purchase shall apply exclusively to purchase orders. Any of the Supplier's terms and conditions in derogation hereof shall be non-binding upon the Purchaser, even if the Supplier states that its deliveries will be effected only subject to its terms and conditions.
Further, the acceptance of deliveries or services without explicit objection cannot be deemed to be an acknowledgement or approval of the Supplier’s terms and conditions. This must be pointed out by the Supplier in a separate letter, should the Supplier not agree with the above handling of the transaction. In this case, the Purchaser reserves the right to withdraw the purchase order. The unopposed confirmation or execution of the order shall be deemed to be an acknowledgement of the Purchaser’s terms and conditions of purchase.
2. Conclusion of contract, modifications
2a. Enquiries and offers always shall be free of charge and non-binding for the Purchaser, otherwise this must expressly be pointed out to the Purchaser prior to placing the order.
2b. Purchase orders shall be binding only if made in writing. Also, any possible changes, ancillary agreements or other declarations and communications are subject to the written form requirements. Should the Purchaser accepts the Supplier’s offer unmodified, the contract shall materialise upon receipt of the purchase order, which will require no further order confirmation on the part of the Supplier.
If the Supplier’s order confirmation deviates from the terms and conditions of contract, this must be pointed out to the Supplier. Otherwise the contract shall materialise without deviations.
2c. Within the scope of acceptability the Purchaser may request that the Supplier modify the structure and design of the delivery items. The Supplier shall make the modifications within a reasonable time limit. Mutually agreeable regulations must be established concerning the effects of such changes, in particular with respect to additional costs or cost reductions as well as delivery deadlines.
If the modifications become necessary, in particular with respect to the type of composition of the processed material or the structural design, compared with previous similar deliveries and services or the placed order, the Purchaser must be informed prior to the start of production and/or in the case of subsequent modifications, prior to their execution. This will require the Purchaser’s written approval. The Purchaser is not obligated to inspect deliveries and services for similarity upon taking delivery.
2d. The Supplier shall treat the conclusion of contract confidentially. The contracting parties agree to treat all business or technical details, which are not public knowledge and to which they become privy in the course of their business relations, as business secret and to impose a corresponding obligation on subsuppliers.
3. Prices, terms and conditions of payment
3a. The agreed prices are fixed prices, including packaging, shipping and insurance costs. Subsequent claims of any type shall be excluded herefrom.
3b. Except as otherwise agreed, payment shall be effected within 14 days at 3% discount or within 60 days without deduction.
3c. The time limit shall start upon receipt of the contractual performance and a proper and verifiable invoice. In the case of early deliveries, the time limit at the earliest shall start at the agreed delivery date.
3d. Invoices must be submitted separately from the delivery of goods, stating the order number, delivery location, supplier number, article number, number of units and unit price, as well as the quantity per delivery, without copies. Improperly submitted invoices shall be deemed to have been received only on the date on which the correct invoice was received by the Purchaser.
3e. The method of payment shall be the Purchaser's choice. As a function of the Purchaser’s automatic payment transactions, these deadlines may be exceeded by a maximum of five working days, without losing the entitlement to discount deduction.
3f. Certifications of material tests and/or material certificates essentially shall apply as an integral part of the order and must be sent together with the delivery to the Purchaser. The payment period for invoices starts upon receipt of the agreed certification.
3g. As soon as and to the extent that the Supplier’s claim is opposed by a Purchaser’s counterclaim, the Purchaser may initiate a set-off, taking into consideration discount deductions. The set-off will effect the cancellation of mutual claims in the set-off and, where appropriate, discount amount. The Purchaser shall be entitled to rights of retention within the statutory limits.
3h. The Supplier's claims against the Purchaser may be transferred only with the Purchaser's approval.
4. Terms of delivery, packaging, shipping
4a. Deliveries shall be effected free of charge to the Purchaser's address, including packaging, or to a delivery point as specified in the order.
4b. The transfer of risk from Supplier to Purchaser this prior to the shall take effect only upon delivery to the delivery address and/or place of use requested by the Purchaser.
4c. The agreed delivery dates shall be binding. The receipt of the merchandise at the Purchaser's address or the place of delivery specified in the purchase order shall be relevant. The delivery deadlines will be reasonably extended only if the Supplier is prevented from meeting its obligation in the case of force majeure.
4d. If the Supplier realises that the agreed deadline cannot be maintained, it immediately must notified the Purchaser, stating reasons and the expected delay. The Supplier may only plead the causes of a delay for which it is not responsible, if it has complied with is the reporting requirements.
4e. In the case of delay, the Purchaser is entitled to demand a contractual penalty from the Supplier. This amount shall be 0.5% for each week or part thereof or a maximum of 5% of the total order value. The agreement of the contractual penalty or its enforcement shall not affect the Purchaser’s legal claims due to default in delivery.
4f. The Supplier only may plead the absence of documents necessary for executing the order and to be supplied by the Purchaser if the Supplier did not receive the requested documents within a reasonable time period.
4g. If the merchandise is delivered earlier than agreed, if will be stored until the agreed date of delivery at the Supplier’s cost and risk. The Purchaser is authorised to effect payment not earlier than on the agreed date.
4h. For shipments from preferential countries, the Supplier must attach the proof of preference to each consignment. The long-term Supplier statement according to EEC regulation 1207/2001 must be submitted once per year. Further, the Supplier agrees to comply with the relevant export control regulations and to submit to the Purchaser unsolicited in writing, not later than on the date of delivery, the products’ export control ID, in particular, in accordance with EU and US law.
4i. The delivery items must be packaged in a merchantable and proper manner. The Purchaser is authorised to prescribe the type and manner of packaging. If the Purchaser is invoiced packaging as an exception, the Purchaser reserves the right to return the re-usable packaging free of charge against reimbursement of the packaging value amount.
4j. Over or under-deliveries are permissible only in accordance with prior agreement.
5. Incoming goods inspection, responsibility for defects
5a. The Supplier shall constantly monitor the quality of its deliveries and services. The Supplier shall warrant that said deliveries and services have the characteristics described in the purchase order and that they are delivered in accordance with the latest technology, taking into consideration the relevant environmentally hazardous substance and accident prevention regulations and that they are in compliance with all acknowledged safety and occupational health regulations.
5b. An incoming goods inspection is limited to spot-checks, externally identifiable damage and open defects as well as identifiable deviations in identity and quantity. Defects, which the Purchaser is unable to discover through spot-checks, are deemed to be hidden defects. Further, the Purchaser shall report defects in accordance with the conditions of proper business operations as soon as they are discovered, at the latest, however, within five calendar days after said defects have been discovered. The Supplier shall wave the plea of late notice of defects.
5c. Except as otherwise agreed in the purchase order, the warranty period for deliveries and services shall be 24 months as of date of delivery.
5.d. In the case of deliveries of machines and systems, the warranty period of 24 months shall start upon acceptance and/or if the acceptance is delayed without the Supplier’s fault, on the day of making said machines and systems available for acceptance.
5e. The warranty period for buildings and building material is five years.
The Supplier agrees that the title to the contract goods shall be transferred to the Purchaser upon delivery, not later than upon payment of the respective delivery.
Each prolongation or extension of a reservation of title declared by the Supplier shall be in breach of contract and commits the Supplier to pay damages.
7. Liability, proprietary rights
7a. If the Supplier is responsible for a product defect, the Purchaser must be exempted from product liability claims and claims based on product liability law.
7b. In the case of breaches of contractual, legal or official regulations, the Supplier shall be liable for acting with intent and any type negligence, including any acts caused by its vicarious agents.
7c. The Supplier shall be liable that the delivery and use of the delivered items do not infringe third-party proprietary rights. The Supplier is obligated to indemnify the Purchaser against third-party claims, unless it is able to prove that it is not responsible for a breach of duty.
8. Deliveries according to the Purchaser’s information, drawings and models
8a. If ordered goods are produced in accordance with the Purchaser’s information, the drawings and models, which are required for special facilities, matrixes or similar, may be used only for production, processing the order and be supplied to third parties with the Purchaser’s explicit approval. The Purchaser shall exclusively be entitled to the right of disposal of purchase order-related production facilities and tools, in particular, with respect to joint use, modification or destruction.
8b. Models, samples, drawings or technical documents of any type shall remain the Purchaser’s property and must be treated confidentially. They may be used exclusively for processing of purchase orders and, together with any copies, must be returned to the Purchaser upon request. The Supplier agrees to take all acceptable and necessary measures to comply with the confidentiality request.
8c. If the Supplier makes improvements in connection with executing the order, the Purchaser shall have a free-of-charge, non-exclusive right of use in the improvement and in any possible proprietary rights.
8d. If, with respect to the Purchaser’s data, drawings and models, the Supplier is concerns about the intended type of execution, selection of materials or processing procedures, the Supplier shall notify the Purchaser in writing immediately, possibly even before the start of production.
9. Provisions of materials
9a. The materials, parts, containers, special packages, tools, measuring devices or similar provided by the Purchaser shall remain the Purchaser's property.
9b. When processing, combining, intermingling supplied materials, the Purchaser will be the joint owner of all new products in proportion of the value of supplied materials to the value of the overall product.
9c. The Supplier shall not be entitled to a right of retention in the provision of materials.
9d. The supplied material may be used only for the agreed purposes.
10. Place of performance, jurisdictional venue, applicable law
10a. The place of performance for all deliveries and services shall be the Purchaser’s principal place of business, unless another location has been agreed for the fulfilment of the delivery obligation.
10b. The jurisdictional venue is Wangen i.A. The Purchaser, however, is authorised to assert claims at any other statutory legal venue.
10c. The law of the Federal Republic of Germany shall apply. The application of the UN Sales Convention (CISG) shall be expressly excluded.
11. Other provisions
11a. Should individual parts of these terms and conditions of purchase be or become invalid, this shall not affect the validity of the remaining provisions.
11b. The Purchaser shall treat the Supplier’s personal data in compliance with the German Federal Data Protection Act.