General Terms of Purchase
Kirow Ardelt GmbH
§ 1 General - Scope
(1) These Terms shall apply exclusively, and conflicting conditions of suppliers or others differing from these Terms shall be accepted only in cases where we have expressly approved their validity in writing. Our Terms of Purchase shall also apply if we take delivery without reservation and are aware of a supplier's conditions conflicting with, or differing from, our Terms.
(2) Any arrangements made with suppliers to execute this Contract shall be written into this Contract.
(3) Our Terms of Purchase shall only apply to companies within the meaning of § 310 para. 1 BGB.
(4) These Terms shall also apply to future business with a supplier.
§ 2 Offers – Ordering documents
(1) The supplier shall, within two weeks, take our order by returning the signed duplicate of this order.
(2) Rights of ownership and copyrights are reserved in figures, illustrations, drawings, calculations and other documents which shall not be made accessible to third parties without our express permission in writing. They shall be used exclusively for manufacture in keeping with our order and returned to us unsolicited after its execution. These documents shall be kept secret from third parties. A complimentary provision applying in this case is § 9 para. (4).
§ 3 Prices – Terms of payment
(1) The price as per order shall be binding. In the absence of written agreements to the contrary, the price shall include store door delivery with packing, the return of which shall be agreed separately.
(2) Legal VAT shall not be included in the price.
(3) All invoices shall be made out in duplicate and may be processed only if they give the order no. as per our order. The supplier shall bear any consequences of non-compliance unless it is proven that he is not responsible.
(4) Unless otherwise agreed in writing, we shall pay the purchase price within 14 days from delivery and receipt of the invoice, less 3 % discount, within 30 days less 2 % discount, or within 90 days after receipt of the invoice.
(5) We shall be entitled to set-off rights and the retention of goods on a legal scale.
§ 4 Delivery time
(1) Delivery times given in the order shall be binding.
(2) Suppliers shall notify us in writing at once if circumstances occur or emerge which suggest that the agreed delivery time can not be complied with.
(3) If delivery is delayed we shall be entitled to a penalty of 0.5 % of the order value per full week, limited to 5 %. We shall be entitled to a penalty in addition to performance and undertake to advise the supplier of the proviso of a penalty no later than 10 workdays from receipt of the delayed shipment. Further claims and rights shall be reserved.
(4) We shall be entitled to postpone delivery dates for complete/part shipments by up to 4 weeks without any charge to us.
§ 5 Shipping – Transfer of risks - Documents
(1) Unless otherwise agreed in writing, store door delivery shall be to Leipzig, Niemeyerstraße 2-5.
(2) Truckloads may only be delivered between 6 a.m. and 2.30 p.m. from Monday to Friday. No outside vehicles may deliver goods at any other time. Previous permission shall be obtained for the delivery of larger consignments/weights by truck.
(3) Suppliers shall indicate our exact order nos. and references on all shipping documents and delivery notes, otherwise we shall not be responsible for any delays in processing.
(4) On the dispatch date, suppliers shall send us a detailed shipping note for each consignment giving gross/net weights, marks on packages/parcels, item designations, quantities/measures and order signs. Suppliers shall be liable for any damage/costs, and particularly standby charges, transfer and specific shunting costs, etc. which accrue to us due to non-compliance with our shipping regulations.
§ 6 Inspection of defects – Liability for defects
(1) We are obliged to inspect the goods within a reasonable period for possible defects in quality/quantity. Complaints will be deemed to have been made in time if they are received by the supplier within 5 workdays from the receipt of goods or, in case of hidden defects, from the date of detection.
(2) We shall be entitled to full legal claims arising from defects and may demand, at our discretion, the remedy of defects or the delivery of new goods by suppliers. We expressly reserve the right to damages, particularly in lieu of performance.
(3) If there is an imminent danger/urgency, we are entitled to remedy defects ourselves at the supplier's expense.
(4) The statutory period shall be 36 months from the transfer of risks.
§ 7 Product liability - Exemption - Third-party insurance
(1) Suppliers responsible for a product defect shall, at first request, indemnify us from related claims for damages from third parties if the cause resides in their territory or organizational area and they are liable under legal relationships with third parties.
(2) Within the scope of liability for losses acc. to para. (1), suppliers shall also be obliged to pay for possible expenses pursuant to §§ 683, 670 BGB and §§ 830, 840, 426 BGB which have accrued from/in connection with a recall campaign conducted by us. As far as possible and reasonable, we shall advise suppliers of the content and scope of such recalls and invite their comments, with no prejudice to other legal claims.
(3) Suppliers undertake to effect product liability insurance with a total policy value of €10 mn per personal injury/material loss – as a lump sum – for the term of this contract, i.e. until expiry of the statutory period for defects in each case. This shall be without prejudice to any other claims for damages we are entitled to.
§ 8 Protective rights
(1) Suppliers warrant that no third-party rights in Germany are violated by, and in connection with their deliveries.
(2) In the event of relevant third-party claims on us, suppliers shall be obliged to indemnify us from such claims following a first written request. We shall not be entitled to make any arrangements and, in particular, settlements with such third parties without the supplier's consent.
(3) The supplier's indemnity obligation applies to any expenditure we may necessarily incur from, or in connection with third-party claims.
(4) The statutory period for such claims shall be 10 years from contract conclusion.
§ 9 Reservation of ownership – Provision of parts - Tools -Secrecy
(1) We reserve ownership of parts provided to suppliers who process/reshape them on our behalf. If the reserved items are processed together with others not owned by us, we become coowners of the new items taken at their value (purchase price plus VAT) relative to that of the other items at the time of processing.
(2) If the item provided by us is inseparably blended with other items not owned by us, we become co-owners of the new items taken at their value (purchase price plus VAT) relative to that of the other items at the time of blending. If blending is such that the suppliers' items become main items, pro-rata co-ownership of these shall be deemed to be transferred to us by suppliers who retain sole/coownership on our behalf.
(3) We reserve ownership of tools which suppliers shall use exclusively to manufacture goods ordered by us. Suppliers shall, at their own expense, take out insurance for all our tools against fire, water and theft at replacement value and shall, at this time, assign to us any compensation claims therefrom which we hereby accept. Suppliers shall, at their own expense and in due time, maintain, inspect and repair our tools where necessary and notify us of any malfunctions at once. Failure to do so by negligence shall not detract from claims for damages.
(4) Suppliers shall keep strictly secret all our figures, illustrations, drawings, calculations and other documents and data, which may not be revealed to third parties except with our express consent. This obligation to maintain secrecy shall apply even after contract implementation and shall expire when, and to the extent that the manufacturing know-how embodied in these figures, illustrations, drawings, calculations and other documents has become generally known.
(5) If reservation rights in paras. (1) and/or (2) exceed the purchase price of all our unpaid reserved items by more than 10 %, we shall be obliged, at the supplier's request, to release these reservation rights at our own discretion.
§ 10 Legal venue – Place of performance
1. Where the supplier is a businessman, the place of litigation shall be our registered office. However, we may also bring an action against the supplier before his local court.
2. Unless otherwise specified in the order, the place of performance shall be our registered office.
Sep. 26, 2008/KIROW