General Terms and Conditions of Purchase of VEMAG Maschinenbau GmbH

1. General – scope of application

Our General Terms and Conditions of Purchase (Terms) are exclusively applicable to contracts concluded with us. Terms and conditions of the Supplier which conflict with or differ from our Terms shall only form part of the contract if we have consented to their application in writing. Our Terms shall also apply if we accept a delivery from a Supplier without reservation in the knowledge that such Supplier has terms and conditions which conflict with or differ from our Terms.
All other agreements which have been entered into between us and the Supplier for the execution of the concluded contract must be recorded in writing. To the extent that these Terms stipulate the written form, this requirement shall also be satisfied using fax or electronic means.
Our Terms only apply to companies within the meaning of § 14 German Civil Code (BGB).
Our Terms also apply to all future transactions with the Supplier.

2. Offer – offer documentation

We shall retain ownership and copyright in images, drawings, calculations and other documents which we have made available to the Supplier for the submission of the offer and/or execution of the delivery. The documentation shall not be made available to third parties – including subcontractors of the Supplier – without our express written consent. They shall be exclusively used for the production based on our order and shall be returned to us without request following the completion of the order. They have to remain confidential (cf..§ 13).
Offers, visits, advice and the working of plans by the Supplier shall be free of charge for us.

3. Orders

Orders and agreements are only binding if they have been issued in writing or have been confirmed by our purchasing department.
Mistakes in writing, calculations or other obvious inaccuracies in orders or other declarations can be corrected by us at any time including after the conclusion of the contract without imposing any obligation on us.
Upon the conclusion of the contract, our Terms shall become part of the contract without limitation. In the case of oral orders, this shall take place through the acceptance of our order or through the delivery of the ordered goods.

4. Confirmation of order

All orders (purchase offers) issued by us require a written confirmation from the Supplier. If the written confirmation does not take place within 8 working days, we are no longer bound by our offer (purchase order). The Supplier cannot derive any claims against us from an offer that has become invalid.
Confirmations of order which we receive after the expiry of this deadline shall be deemed to be a new offer which requires our written acceptance.
The Supplier must expressly point out in the confirmation of order and obtain our approval of any changes from the order.
Delivery schedules shall be binding unless the Supplier has made a written objection within at least five (5) working days after receipt.

5. Delivery time

The delivery time specified in our offer is binding.
The Supplier is obliged to immediately inform us in writing if circumstances occur or become recognisable to him, which mean that the stipulated delivery time cannot be adhered to.
In the event of a delay to delivery, we are entitled to our statutory claims without limitation, including the rights of rescission and claim to compensation in place of performance following the expiry without success of a reasonable extension of time.

6. Prices – terms of payment

The price stated in our order is binding. In the absence of a differing written agreement the price includes free delivery and packaging. The return of packaging requires a separate agreement.
Statutory value added tax is not included in the price of the order.
The invoices are to be issued in accordance with the specifications of our order, in particular the order number and article identity number are to be given as they appear on the order. If this obligation is not complied with we are not responsible for any consequences arising therefrom (such as delays with payment.)
Unless otherwise agreed in writing, we shall pay the purchase price within 14 days - calculated from delivery and receipt of invoice – with a discount of 2 %, or within 30 days - calculated from delivery and receipt of invoice – in the net amount.
In the event of a delay on our part, interest in the amount of 5 percentage points above the respectively valid basic rate of interest of the ECB shall be payable.
We are entitled to statutory rights of retention and set-off.

7. Transfer of risk - documents

Unless otherwise agreed in writing, the delivery shall take place free of carriage costs.
The risk first passes to us, including if shipment has been agreed, when the goods are delivered to us at the agreed location.
The Supplier is obliged to give our order number and article identity number on all despatch papers and delivery notes. If it fails to do so, we shall not be held responsible for any resulting delays (such as in relation to payment).

8. Warranty

We are obliged to check the goods within a reasonable period for any defects and variations in quality and quantity. The notice of defects shall be given by us in good time in the case of obvious defects if it is received by the Supplier within a period of 10 working days from our receipt of the goods or in the case of hidden defects, if it is notified to the Supplier upon discovery.
We are entitled to statutory warranty claims without limitation. In cases of supplementary performance, rectification of a defect or subsequent delivery shall be deemed to have failed after the second unsuccessful attempt. The Supplier shall bear the expenses required for the purpose of supplementary performance, in particular the costs of transport, handling, labour and materials; these also include assembly and disassembly costs. The Supplier shall also bear such costs arising or increasing due to the goods in question being transported to a location other than our place of business.
The warranty period is 36 months from the passing of the risk.

9. Spare parts

The Supplier is obliged to provide us with spare parts for the products delivered to us for a period of at least ten (10) years after the delivery.
If the Supplier intends to discontinue the production of the spare parts for the products delivered to us, it shall immediately inform us of this following the decision to discontinue. This decision – subject to paragraph 1 – shall be taken at least six (6) months prior to the discontinuation of production.

10. Liability – indemnity – third party insurance

The Supplier shall indemnify us on first demand from all third party claims which are asserted against us by reason of breaches of obligation by the Supplier, in particular due to defects in material and title, insofar as and to the extent that the Supplier is internally obliged to compensate us. The Supplier shall reimburse all necessary expenses incurred by us due to the Supplier’s breaches of obligations.
If a claim is made against us due to a defect in the goods delivered by the Supplier under producer’s liability and/or product liability, the Supplier must, on demand, indemnify us from the liability resulting from the defect, to the extent that the cause falls within its domain of authority and organisation and it is itself liable in the external relationship.
If we are entitled to further claims for compensation, these will not be affected.
If the Supplier is liable for cases of damages pursuant to paras. (1) or (2), it is also obliged to reimburse us for any expenses arising out of or in connection with any recall action we implement pursuant to §§ 683, 670 BGB as well as §§ 830, 840, 426 BGB. To the extent possible and reasonable, we shall inform the Supplier of the content and extent of the recall action to be implemented and shall give the Supplier the opportunity to make a statement. Other statutory claims shall remain unaffected.
The Supplier is obliged to maintain blanket product liability insurance with coverage of € 10 million for each event of personal injury/damage to property. The level of our claims for compensation shall not be limited by the coverage of the third party insurer.

11. Third party rights to intellectual property and ownership

The Supplier shall ensure that in connection with its delivery, no third party rights are breached.
If a third party claim is made against us based on a breach of intellectual property rights in connection with the delivery of the Supplier, the Supplier is obliged to indemnify us from these claims upon first written demand; this claim shall not exist to the extent that the Supplier proves that it was neither responsible for the breach of the intellectual property right nor should have known about it at the time of the delivery applying the care of a tradesperson. We are not authorised without the consent of the Supplier to enter into any kind of agreement with third parties, in particular a settlement.
The Supplier’s obligation to indemnify also includes all expenses necessarily incurred by us out of or in connection with a third party claim, including any court proceedings.
If we are entitled to further claims for compensation, these shall remain unaffected.

12. Reservation of title - provision - tools

We retain the ownership of parts provided by us. Processing or transformation of the parts shall be carried out on our behalf by the Supplier. If the Supplier processes parts belonging to us with other items which do not belong to us, we shall acquire co-ownership of the new object in proportion to the open market value of our parts as against the other processed items at the time of the processing.
If the parts we make available are inextricably combined with other items which do not belong to us, we shall acquire co-ownership of the new object in proportion to the value of the reserved part (purchase price plus value added tax) as against the other combined items at the time of the combination. If the combination takes place in such a way that the Supplier’s item is to be regarded as the main item, it is deemed to have been agreed that the Supplier transfers to us pro rata rights of co-ownership. The Supplier shall keep safe the sole or co-ownership rights on our behalf.
Any tools that we have made available to the Supplier shall remain in our ownership. The Supplier is only authorised to use the tools for the manufacture of goods ordered by us and shall, following completion of the order, return such tools to us without the need for a request on our part.
The Supplier is further obliged at its own cost to insure tools belonging to us for their new value against damages caused by fire, water and theft.
The Supplier now assigns to us all claims for compensation against the insurer. We accept this assignment.
The Supplier is further obliged to punctually carry out in relation to the tools at its own cost, any maintenance and inspection works as well as all servicing and repairs. Any breakdowns must be immediately notified to us.
The Supplier is liable for damages arising from breaches of obligation in particular from the impossibility of restitution.
An extended and further reservation of title by the Supplier – in particular the reservation of title to the delivered goods until the complete payment of all claims under the entire business relationship – is excluded. In particular no processing takes place for the Supplier within the meaning of § 950 BGB.

13. Confidentiality

The Supplier is obliged to keep all images, drawings, calculations and other documents and information received from us strictly confidential. These can only be made available to third parties with our express consent. A right of retention of these is excluded.
The confidentiality obligation also applies for ten (10) years following the completion of this contract.
The confidentiality obligation shall not apply for such information which at the time of the conclusion of the contract was already publicly known or which was already known to the Supplier or which later became publicly known, without a contractual breach by the Supplier being the reason for such disclosure. The Supplier must also impose corresponding obligations on its employees and sub-contractors.
The documents specified above are to be returned to us following the implementation of the order without the need for a request on our part.

14. Export control provisions

The Supplier declares that its company and employees do not appear on any of the current sanctions lists. The Supplier undertakes to ensure that within the operation of its company the Anti-Terror Regulations and other applicable national and international trade and embargo provisions are complied with. The Supplier must indicate to us in writing all orders, prohibitions and limitations in relation to the goods. The Supplier further undertakes to immediately inform us in writing of any positive findings following a review pursuant to the above lists and provisions.
The Supplier completely indemnifies us from all direct and indirect claims of third parties resulting from the insufficient implementation on the part of the Supplier of the measures required under statute for the combat of terrorism.

15. Protective regulations/quality

The delivered goods must correspond with the specifications and quality requirements set out in the order. The Supplier undertakes to comply with all regulations and directives prescribed by the legislator, supervisory authorities, trade associations and the competent organisations in relation to implementation, accident prevention and environmental protection. The Supplier undertakes to comply with the recognised codes of practice, safety provisions and the agreed technical data for its deliveries.

16. Minimum wages

The Supplier gives an assurance that in the implementation of the deliveries it complies with its obligations under the German Minimum Wage Act, in particular the obligation to pay its employees in Germany at the latest on the respective due date, wages which are at least at the level of the minimum wage pursuant to § 1 Minimum Wage Act (or pursuant to the transitional provisions of § 24 Minimum Wage Act).
The Supplier further assures that it will only deploy such sub-contractors (including rental companies), which comply with their respective obligations under the Minimum Wage Act, in particular the obligation to pay its employees in Germany, at the latest on the respective due date, wages which are at least at the level of the minimum wage pursuant to § 1 Minimum Wage Act (or pursuant to the transitional provisions of § 24 Minimum Wage Act). This and all following regulations for sub-contractors shall apply correspondingly for any subsequent contractor chain.
The Supplier undertakes to immediately inform us if an employee deployed for us – whether this is the Supplier’s own employee or the employee of a sub-contractor – asserts claims under the Minimum Wage Act or if regulatory offence procedures under § 21 Minimum Wage Act are filed against the Supplier or a sub-contractor.
In the event of a claim by us under § 13 Minimum Wage Act or the filing of administrative fine proceedings under § 21 para 2 Minimum Wage Act the Supplier indemnifies us from all costs in relation to this (including reasonable legal costs and any fines imposed).
To the extent that the German Law on the Posting of Employees is relevant, para. 1 to 4 apply correspondingly.
We are entitled to terminate without notice the contractual relationship with the Supplier within two weeks of becoming aware that the Supplier or a sub-contractor breaches provisions of the Minimum Wage Act; we shall not be liable to the Supplier for any damages arising from this.

17. Jurisdiction – place of performance – severability clause

Jurisdiction for all disputes arising directly or indirectly from this contractual relationship shall be Verden. This jurisdiction also applies for legal disputes concerning the emergence and validity of all agreements between the parties including this clause. We are also entitled to bring an action against the Supplier in the place of its registered office.
Unless otherwise stated in the order, place of performance is Verden.
If individual clauses of the above Terms should be invalid in whole or in part, this shall not affect the validity of the remaining clauses and/or the remaining parts of such clauses. An invalid provision shall be deemed to be replaced by such provision which comes closest to the commercial purposes and statutory terms of the invalid provision and which is valid.

18. Applicable law

The law of the Federal Republic of Germany, and, if applicable, the rules of the United Nations Convention on Contracts for the International Sale of Goods (CISG), shall exclusively apply to these contractual relations.

General Terms and Conditions of Purchase of VEMAG Maschinenbau GmbH

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