General conditions of purchase
of TSK Prüfsysteme GmbH (hereinafter: TSK)
1. GENERAL PROVISIONS
These general conditions of purchase apply to all present and future contracts with our business partners on supply and performance. We expressly contradict adverse or deviant terms in the general terms and conditions of trade of our business partners. Other agreements, amendments and sub agreements are valid only if and as far as we have agreed to them in writing. Seller, contractor and business owner shall be hereinafter referred to as "supplier".
Orders must be made in writing. This can be by means of electronic data transfer. Verbal sub agreements on orders are non binding if not confirmed by us in writing. This is also the case for subsequent amendments and additions.
All drawings, calculations and models necessary to carry out the order remain our property; we reserve the right to all copyrights to these documents. They may not be disclosed to third party. If the supplier does not accept our order he must return the documents to us without delay. The supplier must examine the drawings, tenders and instructions and carry out the work according to technical and legal regulations in force, in particular the applicable DIN norms and technological rules. He may not plead faulty tender or inaccurate instructions unless after expressing his doubts in writing, he was expressly told by us in writing to carry out the order.
3. CONFIRMATION OF ORDER
The confirmation of the order, signed and legally binding, must be received by us within two working days after our order. We reserve the right to cancel our order if the order has not been accepted and the price and delivery time have not been expressly confirmed within this deadline or if the order confirmation deviates at all from our order. Deviation from our order data must be confirmed expressly by us in order to be valid.
The prices stated in our orders are fixed and include delivery and unloading at the stipulated place of acceptance and include freight and delivery charges, packaging and insurance costs unless otherwise agreed. If the supplier increases his general sales prices after the contract has been concluded but before delivery this does not affect the price agreed with us. If the supplier lowers his general sales prices after the contract has been concluded we are entitled to these lower prices.
5. DELIVERY TIMES
Delivery dates and deadlines are binding. Delivery deadlines which are stated in weeks or months begin with the date of our order, unless the supplier proves a postal delay of more than three days. In this case the delivery deadline begins with the receipt of the order. The supplier shall be deemed in default if the delivery is not made by agreed delivery date or deadline. Delivery dates and deadlines shall be deemed observed if the goods have been received at the place of acceptance stipulated by us on or before the delivery date.
As soon as the suppler realizes that he cannot fulfil his contractual obligation in whole or part or not within the allotted time, he must inform us immediately in writing giving the reasons and the estimated length of the delay. If the suppler does not fulfil his obligations within the agreed delivery time he is liable according to statutory provisions. If delay or other circumstances which prevent a timely delivery occur, we are entitled in cases of imminent danger or extreme urgency without setting a subsequent deadline, without prejudice to our other legal rights, to claim compensation instead of performance for non fulfilled performance or incorrect performance, or to cancel the contract. If delay occurs due to force majeure the legal contractual consequences do not apply if we are informed immediately. For the same reasons we are also entitled to postpone the deadlines for taking delivery without the supplier having claim to compensation or being able to cancel the contract if the priority of other obligations makes it necessary.
If the delivery deadlines are not observed or the delivery is not to our satisfaction in terms of quality and performance we are entitled to cancel orders already made without liabilety to compensation. Furthermore when delivery deadlines or completion dates are exceeded we are entitled to stipulate a contractual penalty of 100,00 € per day and to deduct this from the bill. Irrespective of this contractual penalty we are entitled to claim damage compensation for the culpable delay of the delivery, if the resulting damage is more than the imposed contractual penalty.
Deliveries and partial performances before the agreed delivery date must be agreed expressly by us in writing. The agreed date for payment is not affected by early delivery. Delivery and performance by third party must be expressly agreed by us in writing.
6. TERMS OF DELIVERY
Unless otherwise agreed, the goods shall be delivered to us carriage free, including packaging with no extra charges. Delivery must be carried out observing possible delivery regulations arising from the order and we must receive advice of dispatch on same day; the delivery must be made to the address stipulated by us. The supplier is liable to us for all costs which occur due to the non observance of the regulations above or due to incorrect addressing of the shipment. The delivery is carried out at supplier's risk, who for expediency's sake, should take out sufficient insurance against transport damage. Risk is transferred to us when the delivery is handed over to us and accepted by us. This is also the case when on the basis of a special agreement we have agreed, as an exception, to pay the freight costs. Each shipment must be accompanied by a delivery note which contains our order number, exact number of items and description of the items. Part deliveries or remainder deliveries must be described as such in the delivery documents; they are admissible on the basis of written agreement.
The return or taking back of empties, packaging and storage equipment is carried out according to statutory laws in place and is at supplier's expense.
Unless otherwise expressly agreed an invoice in duplicate must be sent to us immediately after delivery. The invoice and all other delivery documents must include the date, the number and other order information and the place of acceptance. If these details are missing the agreed deadlines in the paragraph "Terms of Payment" will be extended by a week; if it necessary to make enquiries the payment deadline will begin when the written answer with the necessary details is received. If the invoice is received later than the delivery the discount deadline will be calculated from the receipt of the invoice. If the delivery is received later than the invoice the discount deadline will be calculated from the date of receipt of the goods.
8. TERMS OF PAYMENT
1. Payment will be made, unless otherwise agreed, within 10 working days with a 3% discount or within 30 working days in full.
2. The payment deadline begins as soon as the delivery or performance is made in full and without defect and the invoice has been correctly issued and received by us. Insofar as the supplier has to provide material tests, test protocols, quality documents or other documents these must be received by us before delivery and performance can be deemed to be made in full. Deduction of discount is also admissible if TSK offsets payments or withholds payments of a reasonable amount because of defects.
3. Making of payment shall not mean that the delivery or performance has been recognized as conforming to contract.
The supplier guarantees the use of the best and appropriate materials, correct, appropriate masterly execution according to cutting edge technology, appropriate construction, proper mounting, energy demands, performance and rate of efficiency etc in such a way that he will remedy all defects resulting from the lack of these features immediately at his own expense during the period of warranty at the place of use or in urgent cases have them remedied by third party. The performances, measurements, weights, strengths, durability and other features requested by us shall be considered guaranteed features of the object supplied. The supplier undertakes to carry out appropriate quality controls according to the applicable DIN norms or similar norms before delivery of the goods.
Taking into consideration the fact that with a large number of the goods it is not possible to examine them immediately for correctness and serviceability, the supplier recognizes, under revocation of §377 Commercial Code, complaints made outside statutory deadlines, including after payment has been made. A defect notification is considered to be timely if made without culpable delay after commissioning the object supplied.
We are entitled to statutory rights to claim for defects against the supplier and the latter is liable to us to the statutory scope. In cases of imminent danger or extreme urgency we are entitled to remedy the defects ourselves at supplier's expense. For faults which were not obvious at commissioning the supplier undertakes the statutory warranty from the point of commissioning. In the case of hidden defects we are entitled to demand reimbursement for unnecessary wages, materials, recourse costs of third party and other costs.
Payment does not constitute a waiver of the right to claim for defects.
10. PROHIBITION OF ASSIGNMENT
Assignment of supplier's claims against us to third party is inadmissible, unless otherwise expressly agreed. We reserve the right, however, to authorize such assignments and to pay third party with discharging effect. The payment to the new creditor includes the authorization of the assignment by us.
11. PROTECTION RIGHTS/PRODUCER?S WARRANTY
The supplier guarantees that by using the supplied goods or installation of the supplied materials etc. existing protective rights of third party will not be infringed. He undertakes expressly, for the case that third party claims are made, to indemnify us from these claims and pay for any damages incurred. The supplier indemnifies us from any claims made by commercial or private buyers on the grounds that they have suffered damage by using these products in a proper and foreseeable way and this damage is a result of faults in construction or production of the object supplied and/or of infringement of the obligation to check or instruct of the supplier.
12. DRAWINGS, MODELS, CONSTRUCTION DOCUMENTS
Drawings, models, construction documents, special tools and similar which we make available to carry out an order remain in all cases our property and must be returned to us after order has been carried out. If the supplier produces the object to be supplied at our instruction and/or amends it specially for our order, the drawings, models and construction documents, special tools and similar made by him must be sent to us along with the supplied object. If nothing is agreed to the contrary they are already included in the agreed price. The supplier may not use them for third party without our permission.
13. DATA PROTECTION
The supplier undertakes to deal with all information about purchaser's operating and company secrets including drawings and other information put at his disposal with the utmost confidentiality and within the framework of carrying out this order to strictly uphold the regulations of the Federal German Data Protection Laws including the written obligation of employees according to §5 of the Federal German Data Protection Laws. Any damage for us arising from an infringement of this obligation is purchaser's liability.
We are entitled to withdraw from the contract if insolvency proceedings are petitioned for or granted or if the supplier ceases payments or his company goes into voluntary or compulsory liquidation. We continue to be entitled to this right if the contract has been fulfilled in whole or in part by one or both contractual parties as long as the warranty deadline of the supplier has not yet expired.
15. PLACE OF PERFORMANCE AND FORUM
Unless otherwise stated in the order our registered office is the place of performance for delivery and performance. Insofar as the supplier is a businessman Porta Westfalica/Germany is the sole forum. We are also entitled to take legal action at place of purchaser's registered office.
Unless otherwise agreed Federal German law is applicable. UN rights of purchase do not apply.
Should individual terms of these General Conditions of Purchase be or become invalid/impractical in part or whole the other terms remain valid. The contractual parties undertake to replace the invalid/unenforceable term as soon as it is invalid/unenforceable by a term which in its economic aim is as close as possible to it.
Status: May 2008