General terms and conditions of purchase
1. Scope of application
1.1. Abele Ingenieure GmbH (“the purchaser”) places orders solely on the basis of these general terms and conditions of purchase; any terms and conditions of purchase which contradict or deviate from these general terms of conditions of purchase are not accepted by the purchaser, unless the purchaser gives his express written consent to their validity. The supplier’s implicit acceptance of deliveries or services as well as payments from the purchaser do not indicate the purchaser’s agreement to any terms and conditions of the supplier which are contrary to the purchaser’s terms and conditions of purchase.
1.2. These terms and conditions of purchase will also apply to future contracts with the purchaser in the version that is valid at the time of contract conclusion.
1.3. These terms and conditions of purchase only apply vis-à-vis companies according to 310 Abs. 1 BGB (German Civil Code).
2. Quotes, orders, contract conclusion, contractual documents
2.1. Compensation for visits or the preparation of quotes, projects, drafts or samples is not granted.
2.2. Orders, call orders, contracts of all kinds as well as any changes or amendments made to them are only effective if they are made in writing. The written form is also considered kept if the declaration is made by fax, e-mail or other data transmission. A signature is not required for the written form requirement to be fulfilled. The above written form requirement also applies to the cancellation of this written form agreement. To be effective, verbal agreements before or during the contract conclusion require written confirmation by the purchaser.
2.3. The order is considered as accepted if the supplier does not object in writing within 14 days of the order date.
2.4. Deviations from orders only become part of the contract if the purchaser confirms them in writing.
2.5. The documents listed in the order, which must be provided to the supplier upon request, are part of the order. The delivery/service is only considered completed if all conditions outlined in the documents are met.
2.6. The supplier is obliged to check the tender documents, order text details, drawings, process requirements and other documents for correctness and completeness. The supplier is also obliged to check for inconsistencies and compliance with the relevant public legal regulations as well as the purchaser’s goals and intentions and to notify the purchaser immediately and in writing of any faults, contradictions or ambiguities.
2.7. Additional demands made by the supplier at a later date based on the supplier not being familiar with the local or technical circumstances, as well as errors, ambiguities or contradictions in the previously mentioned documents are therefore not accepted.
3. Termination by the purchaser
3.1. The purchaser is entitled to withdraw from the contract or cancel the contract with immediate effect if the supplier stops his payments or applies for insolvency or similar legal proceedings regarding his assets or if such proceedings are opened or the opening is rejected due to a lack of assets. Damage claims asserted by the purchaser remain unaffected.
3.2. If one of the cases outlined in section 3.1. arises, the supplier assigns all claims for defects as well as claims for the refund of any overpaid compensation to which the supplier is entitled from his suppliers or sub-suppliers – subject to the condition precedent – to the purchaser. The purchaser accepts the assignment and is entitled to freely decide whether he wants to assert a claim against the supplier and the supplier’s sub-suppliers. The supplier is obliged to submit all documents necessary for the assertion of claims to the purchaser.
4. Shipping, packaging, deliver terms, partial delivery, early delivery
4.1. Delivery occurs on DDP terms to the known delivery address according to Incoterms 2010. If no delivery address has been provided, the purchaser’s head office must be used as the delivery address.
4.2. A timely dispatch notice must be provided for every shipment including the order number.
4.3. The order number as well as any information defined by the purchaser as necessary for assigning the product correctly must always be repeated in all relevant documents (order confirmation, dispatch notices, delivery note, waybills, invoices etc.).
4.4. The delivery must be protected from damage by way of suitable packaging. The supplier packages, ships and insures the goods in a professional manner, as necessary and at his own expense. Only environmentally friendly packaging materials may be used. Shipping and packaging provisions must be adhered to as well as specifications from the purchaser regarding shipping and packaging. In addition, the standards of the German Federal Association of Wooden Packaging Material, Pallets and Export Packaging e. V. (HEP) must be complied with. All additional costs and consequential damages arising from non-compliance must be borne by the supplier. Packaging materials must be taken back by the supplier upon request of the purchaser.
4.5. Excess deliveries and extra services as well as partial deliveries and partial services are only accepted with the prior written agreement from the purchaser.
4.6. In the case of deliveries being made earlier than agreed, the purchaser retains the right to return the delivery at the expense and risk of the supplier. If the early delivery is not returned, the goods are stored by the purchaser until the delivery date at the expense and risk of the supplier. The payment period of the invoice will be based on the agreed-upon delivery date.
4.7. Once the goods are handed over, they become the property of the purchaser. The supplier guarantees the absence of third-party rights (e.g. retention of title, right of lien) and holds the purchaser free from third-party claims in this regard.
5. Delivery date, delayed delivery, contractual penalty
5.1. Agreed-upon dates are binding. The timeliness of deliveries without installation or assembly/commissioning depends on when goods, including documentation, are received at the delivery address provided by the purchaser. The timeliness of deliveries with installation or assembly/commissioning as well as contractual services depends on when the delivery and installation of goods, including the respective documentation as well as the performance of all services, are fully completed by the supplier and ready for acceptance by the purchaser.
5.2. Notwithstanding any legal claims of the purchaser, the supplier is obliged to inform the purchaser immediately and in writing if circumstances arise or become apparent which make a timely delivery unlikely or impossible. In such cases, the supplier will take all necessary measures to adhere to the agreed contractual delivery date or to keep the delay as short as possible and will inform the purchaser in detail about all measures taken. A notification of the expected delay does not change the agreed delivery date in any way.
5.3. The supplier can only plead the non-provision of necessary documents by the purchaser if he has sent a written reminder to the purchaser regarding the provision of the documents and not received them within a suitable time period.
5.4. In the case of a delay in delivery or service on the part of the supplier, the purchaser is entitled to charge a contractual penalty of 0.5% of the net final invoice amount per week of delay, yet no more than 5% of the net final invoice amount in total. The net final invoice amount refers to the compensation owed on completion of the contract. Further legal claims remain unaffected; if such claims are asserted, a forfeited contractual penalty is offset against the asserted claims where applicable, insofar as an identity of interest between the contractual penalty and the asserted claims exists. The purchaser does not need to reserve the assertion of the contractual penalty on transfer of risk. He can assert them until the time of the final payment.
6. Transfer of risk
For deliveries with installation or assembly/commissioning as well as contractual services, the risk is transferred to the purchaser on acceptance. For deliveries without installation or assembly/commissioning, the risk is transferred upon receipt at the delivery address provided.
7. Acceptance of goods
Acceptance of goods is subject to the agreed-upon quality, condition and quantity. The period for inspecting the goods according to § 377 HGB (German Commercial Code) is a minimum of 10 days. This period is extended to a suitable time period in the case of time-consuming inspections.
8. Prices, accounting, payment, assignment, offsetting, withholding
8.1. The agreed-upon prices are fixed prices.
8.2. Invoices must be issued to the accounting department of the purchaser according to the most current accounting regulations and in line with current tax law, separately for each order including the order and project number of each item. Invoices must not be enclosed in the delivery and must reflect the designation and sequence of orders. Incorrect invoices received are only considered received by the purchaser from the time of correction.
8.3. Payment terms and discount agreements arise from the respective order. The payment and/or discount period begins with the delivery of the goods or acceptance of the service and receipt of a correct invoice by the purchaser. A discount is also allowed if the purchaser offsets payments or retains an appropriate amount of the payment due to defects. The payment and discount period for the retained amount begins when the defect has been completely remedied.
8.4. The assignment of claims arising from this contract to third parties by the supplier requires written permission from the purchaser.
8.5. Insofar as the supplier is obliged to deliver documentation, operation manuals, test and measurement protocols or other material test certificates, the payment period for invoices only begins when these documents have been delivered.
8.6. Payment does not imply that the correctness of the invoice or delivery/service has been contractually acknowledged.
8.7. The settlement of down payments or partial payments does not constitute acceptance or partial acceptance.
8.8. The supplier is only entitled to offset rights if his counterclaims have been established by declaratory judgment, are uncontested or recognised by the purchaser. The supplier is only entitled to exercise a right of retention on the basis of a counterclaim arising from the same contractual relationship or one that has been established by declaratory judgment, is uncontested or is recognised by the purchaser.
9. Execution documents, non-disclosure, tools, samples, items, free-issue parts, ownership protection
9.1. Samples, production facilities, tools, profiles, measurement and test devices, free materials, drawings, works standard sheets, print templates and similar which are provided to the supplier by the purchaser remain the property of the purchaser. They may not be used, copied or made available to third parties by the supplier for purposes outside of the contractual agreement and must be stored by the supplier with the due care of a diligent businessperson, free of charge and separate from other items he possesses. They must be marked as the purchaser’s property, kept absolutely confidential and be sufficiently insured against damage at original value. The listed documents and items must be returned to the purchaser upon completion of the order, whether or not requested by the purchaser. Any item manufactured according to the purchaser’s documents must neither be made available, nor entrusted or sold, to third parties by the supplier.
9.2. Any moulds, tools, samples, print templates etc. which have been billed to the purchaser, will become the property of the purchaser upon payment. They will be stored by the supplier for the purchaser free of charge and must be returned upon request.
9.3. Free supplies provided by the purchaser remain the property of the purchaser, must be stored separately by the supplier and must be marked as such. This also applies to the provision of order-specific materials (e.g. assembly aids). The processing, modification or restructuring of order-specific materials provided by the purchaser is made on behalf of the purchaser. The purchaser becomes the direct owner of the new or restructured item. If the supplier acquires (co-)ownership through the processing or mixing of the item, he will assign a value of the provision or material to the purchaser equivalent to the co-ownership share at the time the co-ownership arose.
9.4. Goods which are produced based on down payments will become the property of the purchaser and will be marked as the property of the purchaser by the supplier, stored for the supplier free of charge and adequately insured at their original value.
9.5. The purchaser is entitled to have the proper storage and marking of goods, supplies, tools, devices and models proven to him at any time.
10. Execution of deliveries, modifications to services
10.1. The supplier is obliged to ensure that all deliveries/services are executed professionally and according to the agreed specifications in line with the latest state of technology and in line with relevant statutory provisions at the place of use, provisions of the Foreign Trade and Payments Act (AWG), and the provisions of the relevant authorities and trade associations. The supplier is obliged to include the respective and valid safety data sheets in the delivery. The supplier indemnifies the purchaser against all third-party recourse claims if data sheets are not delivered to the supplier or if they are delivered with a delay or contain errors.
10.2. If the supplier has any reservations about the mode of execution requested by the purchaser, the supplier is obliged to inform the purchaser of these reservations immediately.
10.3. The supplier is obliged to use environmentally friendly products and processes for his deliveries/services as well as for third-party supplies and ancillary services.
10.4. The supplier requires prior written consent from the purchaser to change the contractual object or any related services. Any modifications made without prior written consent from the supplier and their consequences are at the expense of the supplier.
10.5. The purchaser can demand modifications of the object of delivery/service even after the contract has been concluded, insofar as such modifications can be reasonably expected from the supplier. For such modifications, the additional costs or cost reduction are determined on the basis of the calculation and purchase order arising from the main contract. If no written notice of the supplier is given regarding a necessary extension of agreed delivery periods and dates due to the modifications, an extension of such periods and dates is excluded, unless the necessity of an extension is evident.
11. Defect claims and limitation period
11.1. As a matter of principle, the purchaser always retains the right, even for service contracts, to choose the manner of supplementary performance. § 439 BGB (German Civil Code) applies accordingly.
11.2. The place of fulfilment for the supplementary performance is the place where the product is located as intended.
11.3. The supplier will bear the costs of all expenses arising from the determination and repair of defects, including those arising at the purchaser’s location, particularly inspection costs, assembly and disassembly costs, transportation and travel costs as well as work and material costs.
11.4. In the case of a replacement delivery, the purchaser is not obliged to pay compensation or value replacement for the use of the originally delivered defective goods.
11.5. In addition to purchaser’s statutory claims arising from a defect, the purchaser may, on account of a defect in the product supplied or work carried out, himself remedy the defect and demand reimbursement for the expenditure incurred, after the supplier has set a specific and reasonable period for supplementary performance and this period has expired without success, unless the supplier is legally justified in refusing the supplementary performance. If this happens, the statutory provision for the purchaser to carry out such work himself regarding a service contract (§ 637 BGB) applies to the order accordingly. In particular, the purchaser may choose to avert an acute risk of serious damage, remedy or have remedied the defect himself or obtain replacement at the supplier’s expense if it is impossible to inform the supplier of the defect and give him the opportunity to remedy it because of special urgency. The supplier may demand an advance payment from the purchaser for the expenditure incurred in remedying the defect.
11.6. Unless expressly agreed upon otherwise or unless the law does not provide for a longer period of limitation, the period of limitation is 36 months for defect claims. For a building or object which has been used according to the customary manner of utilisation for a building and has caused the deficiency, the limitation period for damage claims is five years.
11.7. The limitation period for material defect claims begins with the handing over of the contractual object to the purchaser or to a third party as determined by the purchaser at the delivery address provided by the purchaser. For objects of delivery to be assembled at the delivery address, the limitation period begins with the completed assembly, or if commissioning by the supplier has been agreed upon, with successful commissioning, or if test operations have been agreed upon, as soon as these test operations have been carried out successfully. As far as an acceptance must be carried out by law or contractual agreement, the limitation period begins with the successful acceptance. If the assembly, commissioning or test operations or the contractually agreed-upon acceptance are delayed through no fault of the supplier, the limitation period begins no later than six months after delivery of the delivery object. In the case of a service contract, the limitation period will always and only begin with the successful acceptance.
11.8. If the supplier delivers a replacement product as part of his supplementary performance, the limitation period for the replacement product starts afresh. If the suppler carries out extensive rectification work as part of the supplementary performance, the limitation period – with relation to the defects and their causes on which the rectification work is based – begins afresh, unless the supplier has expressly reserved the right to carry out rectification work only out of goodwill, to avoid disputes or in the interest of a continuation of the supply relationship.
11.9. In acknowledging the receipt of deliveries and approving submitted drawings, the purchaser does not waive any claims for defects or other rights.
12. Cessation of production, delivery of replacement parts
12.1. The supplier is obliged to deliver replacement parts for the period of customary technical use, yet a minimum of 10 years after supply of the delivery object and at appropriate conditions.
12.2. If the supplier stops supplying replacement parts after the end of, or during, the aforementioned period, the purchaser must be granted an opportunity to place a final order of the replacement part. The supplier must announce the intended cessation of supply in a timely manner and with advance notice of at least three months.
13. Property rights
13.1. The supplier guarantees that the goods delivered, or services performed, are free from third-party rights (particularly patents, licences, design patent, utility model or other third-party property rights) in Germany, or as far has he is informed about this, in the country of destination.
13.2. Before the contract is concluded, the supplier is obliged to inform the purchaser if property rights exist or have been registered regarding his product.
13.3. If the purchaser is prosecuted because of a violation of property right in the sense of section 13.1., the supplier will join the dispute on the side of the purchaser and bear all costs of the dispute.
13.4. The supplier will indemnify the purchaser from all third-party claims regarding the violation of property rights in the sense of section 13.1. and compensate for potentially occurring damage.
13.5. The parties will mutually inform each other in writing as soon as claims are asserted against them on the grounds of violating property rights.
13.6. If the contractual use of the delivery object/service performance is compromised through third-party property rights according to section 13.1., the supplier is obliged, without prejudice to his other contractual or legal obligations, to obtain from the property right owner, at his own cost and in agreement with the purchaser, the right for the objects of delivery/service to be used without limitation and without additional costs by and for the purchaser in line with the contractual agreement, or to alter those parts of the concerned products/services affected by the third-party property rights in such a way that they no longer fall within the scope of protection, yet still comply with the contractual agreement.
14. Product liability, producer liability, insurance
14.1. If claims are brought against the purchaser due to German or foreign product liability provisions because of a defect of his product arising from a deficiency in a product delivered by the supplier, he is entitled demand compensation for such damage from the supplier to the extent that this damage was caused by the supplier’s product.
14.2. The supplier is obliged to indemnify the purchaser from third-party damage claims at first request in the context of his product liability and to reimburse all costs and expenses including expenses for any prosecution.
14.3. Before any recall campaign which is wholly or partially the consequence of a defect of the contractual object delivered by the suppler, the purchaser will inform the supplier, and give him the opportunity to collaborate and engage in an exchange about an efficient execution, unless it is impossible to inform and involve the supplier due to special urgency. If a recall campaign is necessary due to a defect of the contractual object delivered by the supplier, the supplier will bear the costs of the recall campaign.
14.4. The supplier is obliged to maintain product liability insurance with a suitable insured sum (fixed sum of at least 2 million euros per personal injury/material damage) insuring all risks arising from product liability. The supplier will have to produce the respective certificate of insurance by request of the purchaser.
14.5. The supplier will have to produce an itemised report concerning compliance with appliance safety law by request of the purchaser. If the supplier cannot provide this proof or not within a suitable period set by the purchaser, the purchaser is entitled to withdraw from the contract if there is reason to believe that a delivery or service does not comply with current safety standards or poses considerable danger even when used properly.
15. Non-disclosure and publication
15.1. The supplier is obliged to keep secret the conditions of the order and the concluded contract as well as all information and other documents made accessible to the supplier for this purpose – no matter the form – and to keep secret all knowledge and experiences acquired by the supplier on the basis of the purchaser’s information provision and only to use it for fulfilling the order.
15.2. The supplier is obliged to treat the contract conclusion confidentially. The supplier may not, without prior written consent from the purchaser, indicate the business relationship or exhibit delivery items made for the purchaser in any publication, e.g. in promotional material, reference lists etc.
15.3. The supplier is obliged to obtain the same non-disclosure commitment from his sub-suppliers and employees.
16. Client protection
If the supplier delivers parts or components to the purchaser which the purchaser will built into plants, the supplier undertakes not to supply these parts or components directly to the respective client of the purchaser without the purchaser’s consent unless the supplier has already maintained a supply relationship – with regard to the parts and components delivered to the purchaser by the supplier – even before the contract was concluded. This obligation also applies for a period of four years after the last delivery of parts and components to the purchaser.
17. Copyrights and rights of use
The supplier transfers unlimited power of disposition and utilisation of results arising from the delivery object/service (including ideas, drafts, drawings, specifications, documents and designs) and software to the purchaser upon the completion of the delivery/service. The purchaser has the right to freely dispose of such items like an owner – accounting for third-party personal rights – in his own company, in associated companies or through third parties. For this purpose, the supplier grants the purchaser the irrevocable and unlimited right, temporally, spatially and content-wise, particularly with regard to all copyrights and claims relating to services delivered, service results, software and works, without separate compensation. This includes the provision of software source codes especially developed for the purchaser by the supplier (customised software). The purchaser is entitled to use, and especially alter and then use to the same extent as in its previous form, the service results, works and software in all known and yet unknown forms. The purchaser is entitled to further transfer the rights and to grant licences thereto to third parties. These rights continue to apply for an unlimited time even after the contract has been terminated. If the supplier calls on third parties to fulfil the contract, he will acquire their rights of use and transfer these rights to the same extent to the purchaser.
18. Place of fulfilment, legal venue, choice of law, final provisions
18.1. Should individual provisions in these general terms and conditions of purchase prove to be legally void in whole or in part, the validity of all other provisions remains unaffected. If any of these provisions prove void and if no regulations of dispositive statutory law exist, the parties agree to replace the void provision with an effective provision coming as close as possible to the economic intent of the void provision.
18.2. Unless otherwise agreed, the place of fulfilment for the deliveries/services is the delivery address provided in the purchase order. For all other obligations of both sides, the place of fulfilment is the location of the purchaser’s head office.
18.3. If the supplier is a registered merchant, a legal person under public law or a special public fund, the legal venue is the place of the purchaser’s head office. However, the supplier may also be sued at his place of jurisdiction.
18.4. In addition to this, the law of the Federal Republic of Germany applies to the exclusion of the UN Treaty on International Trade dated 11 April 1980.
18.5. The contractual language is German. If the contracting parties choose to use an additional other language, the German wording takes priority.
18.6. The purchaser is entitled to save, administer and pass on to third parties the supplier’s data held by the company within the framework of legal regulations, insofar as this is necessary for the business operation.