Purchasing Terms and Conditions of Wilhelm Schütz GmbH & Co. KG
1) General information – scope of application –
(1)
Our Purchasing Terms and Conditions are the only ones applicable; any terms and conditions of the Supplier to the contrary or deviating from ours will not be recognised unless explicitly agreed by us in writing. Our Purchasing Terms and Conditions shall also apply if we accept the Supplier’s delivery without reservation in the knowledge that the Supplier’s terms and conditions conflict with or deviate from our Purchasing Terms and Conditions.
(2)
Our Purchasing Terms and Conditions shall apply only to companies as defined in Sec. 310 (1) German Civil Code (BGB).
2) Tender documents
We reserve proprietary rights and copyrights to any illustrations, drawings, calculations and other documents; these may not be made accessible to third parties without our express written consent. They shall be used exclusively for production on the basis of our order and shall to be returned to us unsolicited after completion of the order. They shall be kept secret from third parties; the obligation of secrecy shall also apply after the execution of this contract; it shall expire if and insofar as the production knowledge contained in the illustrations, drawings, calculations and other documents provided has come into the public domain.
3) Price/terms of payment
(1)
The price shown in the order is binding. Unless otherwise agreed in writing, the price shall include free delivery to our main plant or our asphalt mixing and recycling plant in Oberursel or to the building site at the location specified in the order, including packaging. The return of packaging requires a special agreement.
(2)
If packaging costs are paid in exceptional cases, which is to be agreed separately, these shall be reimbursed by the Contractor in the event of a justified return of the goods. Transport packaging, outer packaging and sales packaging shall be taken back free of charge by the Contractor at the agreed place of delivery. When hazardous substances are delivered, the corresponding safety data sheets must be handed over. Individual packaging and containers of hazardous substances must be marked individually with danger labels by the Contractor. Order numbers and other notes on the order must be stated in the dispatch notes, consignment notes, package labels and invoices as well as in the correspondence concerning the order.
(3)
The statutory value added tax is included in the price.
(4)
We can process invoices only if these include the order number and construction site numbers as specified in our order; the Supplier is responsible for any consequences arising from non-compliance with this obligation, unless he can prove that he is not responsible for them.
(5)
Unless otherwise agreed in writing, we shall pay the purchase price with 3 % discount within 14 days calculated from delivery and receipt of the invoice or net within 30 days after receipt of the invoice.
(6)
We are entitled to rights of set-off and retention to the extent permitted by law.
4) Place of performance and fulfilment – transfer of risk –
The place of performance and fulfilment is the place where the object of the contract is to be delivered to us (debt to be discharged at the place of performance).
5) Delivery time / documents
(1)
The delivery time stated in the order is binding.
(2)
The Supplier is obliged to inform us immediately in writing if circumstances occur or become apparent to him which indicate that the agreed delivery time cannot be met.
(3)
In case of a delay in delivery we are entitled to the statutory claims. In particular, we are entitled to demand compensation instead of performance and withdrawal from the contract after the fruitless expiry of a reasonable period of grace. If we claim damages, the Supplier shall be entitled to prove to us that he is not responsible for the breach of duty.
(4)
The Supplier is obliged to exactly indicate our order numbers and, if applicable, construction site numbers on all shipping documents and delivery notes; if he fails to do so, we are not responsible for any resulting delays in processing.
6) Inspection of defects/liability for defects
(1)
We are obliged to inspect the goods within a reasonable period of time for any deviations in quality and quantity; a complaint is deemed to have been submitted in good time if it is received by the Supplier within a period of 5 working days, calculated from receipt of the goods or, in case of hidden defects, from discovery.
(2)
We shall be entitled to the full statutory claims for defects; in any case, we shall be entitled to demand that the Supplier remedy the defect or deliver a new item at our discretion. We expressly reserve the right to claim damages, in particular damages in lieu of performance.
(3)
We are entitled to remedy the defects ourselves at the Supplier’s expense if the Supplier is in default.
(4)
The period of limitation shall be 5 years and 6 months in the case of a building (e.g. renewal/extension/conversion/refurbishment of buildings, bridges, tunnels, canals, roads, paths, squares, etc.) and in the case of an object which has been used for a building in accordance with its usual purpose and has caused its defectiveness; otherwise the period of limitation shall be 2 years.
(5)
The Supplier shall be obliged to remedy, at his expense, all defects which become apparent during the limitation period and which are attributable to being contrary to the contract if the Client requests this in writing before the expiry of the deadline. The claim for rectification of the reported defects shall become statute-barred after 2 years, calculated from the receipt of the written request, but not before the expiry of the standard periods according to the above item (5) or the period agreed in its place. After acceptance of the rectification of defects, a new limitation period of 2 years shall commence for this service, which, however, shall not end before the expiry of the standard periods according to the above item (5) or the period agreed in its place.
7) Product liability/exemption/third-party liability insurance cover
(1)
Insofar as the Supplier is responsible for product damage, he is obliged to indemnify us against claims for damages by third parties on first demand insofar as the cause is within his area of control and organisation and he himself is liable in the external relationship.
(2)
Within the scope of his liability for damage within the meaning of paragraph (1), the Supplier is also obliged to reimburse any expenses in accordance with Secs. 683, 670 BGB or in accordance with Secs. 830, 840, 426 BGB which arise from or in connection with a recall action carried out by us. We will inform the Supplier – as far as possible and reasonable – about the contents and scope of the recall measures to be carried out and give him the opportunity to comment. This is without prejudice to other legal claims.
(3)
The Supplier undertakes to maintain product liability insurance with a coverage of € 10,000,000.00 for personal injury and property damage; if we are entitled to further claims for damages, these remain unaffected.
8) Cash discount
(1)
The date of receipt of the payment order by the financial institution and the existence of the conditions for the execution of the transfer order by the financial institution shall be decisive for the timeliness of payment and the entitlement to claim the discount deduction in the case of a transfer or withdrawal from an account of ours.
(2)
Discounts will be deducted from each invoice amount for which the required payment deadlines are met.
(3)
The settlement of the payable in a justified amount is necessary, but also sufficient.
9) Payment modalities/assignment
(1)
All payments will be made in cashless form.
(2)
The Supplier/Contractor may assign his claim against us only if we have given our separate written consent. An assignment shall be effective against us only if we have been notified in writing both by the Supplier/Contractor and by the new creditor, stating the exact order number and, if applicable, the construction site number.
(3)
Sec. 354 a HGB remains unaffected.
(4)
The Supplier/Contractor is not entitled to assert any rights to refuse performance and/or rights of retention against claims on our part.
10) Retention of title – free-issue parts – tools
(1)
Insofar as we provide parts to the Contractor or Supplier, we reserve the right of ownership thereof. Processing or transformation by the Contractor or Supplier is carried out on our behalf. If our reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item (purchase price plus VAT) to the other processed items at the time of processing.
(2)
If the item provided by us is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the item subject to retention of title (purchase price plus VAT) to the other mixed items at the time of mixing. If mixing is carried out in such a way that the object of the Contractor/Supplier is to be regarded as the main object, it is deemed to be agreed that the Supplier transfers proportional co-ownership to us; the Supplier shall keep the sole ownership or co-ownership on our behalf.
(3)
We reserve ownership of tools; the Contractor/Supplier is further obliged to use the tools exclusively for the manufacture of the goods ordered by us. The Contractor/Supplier is obliged to insure the tools belonging to us at their replacement value at his own expense against fire, water and theft. At the same time, the Contractor/Supplier assigns to us all claims for compensation under this insurance even now; we accept such assignment. The Contractor or Supplier is obliged to carry out any necessary maintenance and inspection work on our tools as well as all maintenance and repair work at his own expense and in good time. He shall notify us immediately of any incidents; if he culpably fails to do so, claims for damages shall remain unaffected.
11) Written form clause
Any change to the contract requires our written confirmation.
12) IP rights
(1)
The Contractor or Supplier guarantees that no rights of third parties within the Federal Republic of Germany are infringed in connection with his delivery.
(2)
If claims are made against us by a third party for this reason, the Supplier is obliged to indemnify us against these claims upon our first written request; we are not entitled to conclude agreements with the third party – in particular to agree a settlement – without the Supplier’s consent.
(3)
The Contractor’s or Supplier’s obligation to indemnify refers to all expenses necessarily incurred by us from or in connection with the claim by a third party.
(4)
The period of limitation is 36 months, calculated from the transfer of risk.
13) Severability clause
In the event that individual provisions of this contract should be invalid, this shall not prevent the validity of the remaining provisions. The parties undertake to replace ineffective clauses by effective ones which correspond to the meaning and purpose of the invalid provisions as far as possible.
14) Place of jurisdiction
If the Contractor/Supplier is a business, our domicile is the place of jurisdiction; however, we are also entitled to sue the Contractor/Supplier at the court of his place of residence.