Version of 1 June 2014
These Terms of Purchase form an integral part of all of our commercial/business contracts. They also apply to existing and future business relationships. No further reference to these Terms of Purchase will be necessary when future orders are placed.
The following Terms of Purchase apply together with the „Supplier Code of Conduct”. The components set out in this Supplier Code of Conduct are an integral part of the contract. Both documents are available on the internet at the following link: www.lohmann-koester.de Contradictory standard terms and conditions, in particular terms of sale, are hereby expressly rejected with respect to commercial/business transactions. They will only apply if approved by us in writing. Deviating agreements, in particular ones reached verbally, will likewise only be binding if confirmed by us in writing. The conclusion of a contract will not fail due to contradictory standard terms and conditions.
Orders may only be placed in writing (letter, fax, PC fax, e-mail). Orders placed verbally will only be valid if we acknowledge them in writing. The Supplier must confirm our orders in writing immediately, specifying prices and the shortest delivery time / the delivery time stipulated by us.
Prices quoted are fixed and include all ancillary costs, in particular packing, transport and insurance, unless expressly agreed otherwise in writing. If the parties agree otherwise, the costs for freight and packing shall be shown separately in the invoices. Our Order Number is to be quoted in all correspondence and other documents, including invoices and delivery note.
Delivery of goods/services, performance
The periods and deadlines stipulated/agreed for deliveries of goods/services must be adhered to. When an order is accepted the delivery period for the goods/services will be assumed to have commenced to run on the order date. If it is impossible to adhere to a delivery period or deadline, the Supplier must notify us immediately of the reasons and the probable duration of the delay. If agreed periods or deadlines for deliveries are not adhered to because of circumstances for which the Supplier is responsible, we will be entitled after setting a reasonable extension of deadline to withdraw from the contract and/or to claim damages. The Supplier must pay all additional costs incurred as a result of late delivery for which the Supplier can be held responsible. The acceptance of late delivery does not represent any waiver of other claims.
Unless expressly agreed otherwise in writing, deliveries will be on a „free domicile“ basis to the destination stipulated/ agreed. In the case of commercial/business transactions the destination will at the same time be the place of performance.
Unless the means of transport is expressly stipulated/ agreed, the Supplier must select a suitable means of transport in accordance with the principles of good faith. The Supplier must deal with the necessary formalities for the carrier.
All duties in connection with customs clearance, in particular the processing of export documents, must be fulfilled by the Supplier on his own expenses. The Supplier is obliged to furnish us with the necessary import documents (e.g. export licenses or preferential certificates) at his own expenses.
In case of deliveries from countries with which the E.U. has made preferential arrangements, we expect that the goods of foreign origin are entitled to preferential treatment. If goods should be delivered which do not meet this requirement, the Supplier has to pay the E.U. customs duty. Unless expressly otherwise agreed in writing, the Supplier is not entitled to make part deliveries or to deliver more or less than the amount ordered.
Part and supplementary deliveries made for reasons for which the Supplier is responsible must be made at the Supplier‘s expense and accorded top priority, regardless of the invoice value. This does not affect our right to enforce further claims.
Unless expressly agreed otherwise in writing, deliveries of goods must be made during the periods specified below. If they arrive later, unloading will not be possible until the next working day. Any costs incurred as a result of a failure to adhere to the periods specified below must be borne by the Supplier, unless we are responsible for that failure.
Monday to Thursday: 8 AM to 4 PM
Friday: 8 AM to 12 noon
A delivery note must be enclosed with each consignment in single format. If a consignment consists of more than one packed item, the item which contains the delivery note must be clearly indicated.
The performance of contractual obligations of the Supplier by third parties is subject to our approval, even if the third party concerned is a company affiliated to the Supplier as defined in § 15 German Companies Law.
We are entitled at our reasonable discretion to demand that the Supplier redeems packaging materials in an appropriate way without charge to us. We may collect the suppliers packaging materials and give an appropriate report to the Supplier. The Supplier may in all cases only charge durable packaging materials (e.g. crates, bale cords etc.) at cost and must credit 3/4 of the value charged within three month if they are returned carriage-paid in usable condition.
All damages arising from improper packing shall be borne by supplier.
In case of imports from countries against which the EU has imposed restrictions concerning certain packaging material (e.g. wood from the U.S.A.), the delivery has to be made in appropriate packaging materials which do not fall under such restrictions (e.g. plastic palettes).
Passing of risk, transfer of title
Unless expressly agreed otherwise in writing, the risk will not pass until goods/services are received by us.
On principle, title to goods supplied will pass to us when the respective delivery is obtained.
Simple reservations of title by the Supplier shall only become part of the contract if we have expressly consented to these in writing. Accordingly, also extended or wider reservations of title will only apply if we have expressly consented to these in writing.
Unforeseeable events, force majeure
In the case of unusual, unforeseeable events, in particular force majeure, war and actions taken by sovereign powers, the Supplier must without delay commence negotiations with us regarding their effects on the Contractual relationship.
There will be no general release from obligations to deliver. Even in these cases it will on principle remain possible to enforce other claims, in particular based on incorrect/incomplete performance.
Characteristics, assurance/guarantees, warranty, liability
The quality, quantity, dimensions and other characteristics of goods/services delivered must conform to statutory/ agreed requirements. In the case of supplies of machines/systems the Supplier is responsible for adherence to the relevant work safety and accident prevention regulations and for perfect design from the safety point of view in accordance with the most recent generally accepted standards of technology. All of the documents necessary for acceptance, operation, servicing and repair shall form a part of the scope of delivery in each case.
A reference to recognized standards implies on principle an assurance representing a guarantee of characteristics irrespective of fault, unless expressly agreed otherwise in writing. Samples, patterns, other documentation etc. and information in the form of e.g. photographs, drawings and statements of dimension or weight supplied to us also represent guarantees of characteristics irrespective of fault
The Supplier also guarantees that the use and/or selling-on of the goods/services supplied by him will not breach industrial property rights of third parties. Under this guarantee he will, at our first request, indemnify us against all claims by third parties based on breaches of industrial property rights. This does not affect our right to enforce any claims above and beyond this which are due to us, in particular claims to damages.
Our duty of § 377 German Commercial Code is limited to the control of the identity and completeness of delivery as well as obvious external transportation damage.
In the event of incorrect/incomplete performance, we may, at our discretion and taking into account what is reasonable, either initially demand rework/replacement or immediately demand the taking back of the defective delivery and the reimbursement of the price, a reduction of the price, compensation for damages and/or termination of the contract / compensation for wasted work/expenditure.
Guarantee and other claims, in particular ones based on incorrect/incomplete performance, will be as provided by law unless otherwise specified in these Terms of Purchase.
Upon the giving of a justified notice of defect, defects of all kinds shall be eliminated by supplier; this shall apply even where such defects are not discovered until such time as the relevant goods are used or processed.
With respect to defects in connection with job processing, our claims against the supplier shall likewise extend to the product provided. Products provided shall be treated as suppliers own product as from such time as supplier receive them. Supplier shall be obliged to monitor the quality and quantity of the products provided and to notify immediately us of defects, changes, etc. In addition the supplier shall handle the products provided with due care and consideration during to production process. In the event of production processing, we may demand to pay for the cost of replacement, if we are unable to use the product due to the fault of the supplier.
By means of urgent issues arousing danger to operational safety and in order to mitigate any disproportionately large damages we shall be entitled to eliminate the defect ourself or have it eliminated by Third Parties and claim reimbursement by the Supplier. Furthermore the Supplier must be informed immediately, excluding issues concerning defects by delivery or defects not rectified by the Supplier despite of two reminders or defects not rectified to our satisfaction.
Returns, special right to terminate
It is on principle permissible to return goods as long as it is not unreasonable to expect the Supplier to accept this in the individual circumstances. This also applies to custom orders and packs which have been opened.
If the Supplier ceases to make deliveries, if insolvency proceedings are initiated with respect to its assets or if an application for the initiation of insolvency proceedings is rejected due to lack of assets, we will be entitled to withdraw from the contract insofar as this relates to deliveries not yet made.
Invoices must be submitted to us without delay in single version. They must conform to statutory requirements, in particular with respect to the provision of turnover tax details and the quoting of the Supplier‘s turnover tax identification number.
As long as nothing to the contrary has been expressly agreed upon, we will deduct a 3% discount from payments made within 30 days following receipt of the invoice / the goods, whichever occurs last. Net payment will – again in case that nothing to the contrary has been expressly agreed upon - be made within 60 days, likewise following receipt of the invoice / the goods.
In the case of temporary non-performance we reserve the right to withhold payment in whole or in part to a reasonable extent until the incorrect/incomplete performance in question has been remedied. Payment does not represent confirmation of proper delivery.
Secrecy, title production materials, industrial property rights
The Supplier must regard commercial and technical details which come to his knowledge in connection with an order as business secrets and keep them confidential. Mentioned details may only be passed over to Third Parties in the extent required for adequate performance of the order. The forwarding to Third Parties must be denoted in written form or (in case of an existing Confidential Agreement) must be governed similarly with a Confidential Agreement.
Drawings, models, tools, patterns, matrices, data carrier, know-how or other production materials (below referred to as “production materials”) handed over to the supplier for the execution of an order or manufactured by the Supplier on our behalf are our property and may not be used for other commercial purposes, duplicated, sold, pledged or made accessible to Third Parties in any other way without our prior written approval. In particular, we reserve all relevant industrial property rights, above all patents and copyrights, on illustrations, drawings, calculations and other documents generated by us. Any processing or combination of such materials is done on our behalf. We become joint owners of any products manufactured using our materials in proportion to the ratio of the value of our materials to the value of the entire product.
The product must be stored by the Supplier with the care to be expected from a prudent merchant. The Supplier will store these production material for us free of charge, insure them as third-party property and return them to us on request without delay, properly packed and in due condition, when the business relationship is terminated. The Supplier‘s own suppliers must be placed under a corresponding obligation
Storage of date
We are entitled to store data relating to the Supplier subject to the requirements of the respective current version of the German Federal Data Protection Act.
Legal venue, jurisdiction
For commercial/business transactions the exclusive legal venue for all disputes arising directly or indirectly out of the contract shall fall within the exclusive jurisdiction of the appropriate court at Purchaser domicile.
The legal relationship between us and the Supplier is exclusively subject to German law. Provisions, in particular those of inter- national private law, which could result in the application of other laws, are hereby expressly excluded. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are also expressly excluded.
Validity of terms
Should individual provisions of these Terms of Purchase be legally invalid, this does not affect the validity of the remaining provisions.
General Terms and Conditions of Sale
Version of 1 June 2014
Exclusive Validity of the Terms and Conditions of Sale
Formation and Content of the Agreement
Terms and Conditions of Payment
Packaging, Postage and Passage of Risk
Retention of Ownership
Industrial Property Rights and Copyright
Other Claims for Damages
Any claims for damages by the purchaser resulting from the impossibility of delivery, for which the vendor is responsible, the positive breach of contract, the violation of duties with regard to the agreement negotiations and an unlawful act are excluded, unless they are based on the intent or gross negligence of the vendor. This shall apply to both direct and indirect damages (consequential damages).
Applicable Law, Place of Fulfillment and Place of Jurisdiction
Lohmann-koester GmbH & Co. KG
Industriestraße 2 D-96146 Altendorf
Phone: +49(0)9545-48 0 Fax: +49(0)9545-48 111
www.lohmann-koester.de E-Mail: email@example.com