(last updated: 10.06.2009)
The following terms and conditions shall govern all purchase contracts and other contracts for deliveries and services, which are concluded by one of the German companies in the DURAN GROUP (hereafter “DG”) on the buyer or ordering party side. However, they do not apply to building services or employment relationships.
1. Priority
To the extent that nothing different is agreed in writing and in individual contracts, the legal relationships between the contractor and DG for the transactions described above shall exclusively be based on the following terms and conditions. Contradictory or supplemental terms and conditions of the contractor shall also not apply, if they are not objected to individually by DG, particularly if ordered goods are accepted or paid for without objection.
2. Written form
All orders and contracts, as well as their amendments or supplements must always be in written form. The written form requirement can only be waived in writing for specific contracts.
3. Cancellation
DG is entitled to cancel its order (application) free of charge, if the contractor does not confirm it in an unchanged form within two weeks after receipt.
4. Deadlines
a. Agreed deadlines for deliveries and services are binding. If delays are anticipated or have occurred, the contractor must immediately notify DG.
b. If the delivery deadline is exceeded due to the fault of the contractor (default), DG shall be entitled to demand compensation, notwithstanding its other rights.
c. If the contractor also does not deliver or perform within a specific, adequate period for supplemental performance, after its expiry, DG shall be entitled to appoint a third party with fulfilment of the contract and demand compensation for the necessary expenses and additional costs from the contractor. In addition, DG has the right to demand compensation in place of performance. The right of the contractor to supplemental performance and the obligation of DG to accept the service are excluded, as soon as DG obtains a replacement itself or demands compensation in place of performance.
5. Prices
The prices are fixed prices. They include all costs related to the deliveries and services to be provided by the contractor.
6. Processing and delivery
a. The contractor shall only be permitted to award sub-contracts with the consent of DG, to the extent that it does not only involve standard parts. The unapproved awarding of sub-contracts constitutes a serious contractual infringement and entitles DG to cancellation, notwithstanding its claim to compensation for a resulting loss.
b. Delivery call-offs are binding with regard to the type and quantity of the called-off goods and the delivery period. Partial deliveries require the consent of DG.
c. Each delivery must include a delivery note, which indicates the DG order number and the description of the content, according to type and quantity.
d. With devices, a technical description and operating instructions shall also be included free of charge. With software products, the delivery obligation is only fulfilled when the complete (technical and user) documentation has been delivered. With programs that have been specifically produced for DG, the program must also be supplied in source format.
7. Invoices, payments
a. Invoices shall be submitted to DG in duplicate, separately from the shipment; they must correspond to the wording of our order descriptions and contain our order number. The exact description of the ordering department and the date of the order must be specified. Invoices, which do not contain all of these details, will be returned, are regarded as not having been received, therefore do not form the basis of a maturity and are to be removed from the contractor’s collection files.
b. The period for payment of the invoice begins on the business day following receipt of a proper, reviewable invoice (date of receipt stamp - not invoice date) or acceptance of the goods/service, depending on which date is later. Invoices that are not reviewable or have defects or errors shall not form the basis of a maturity and can be returned by us at any time. In the latter case, the maturity shall only be justified upon receipt of the reviewable or corrected invoice. Missing delivery documents, receipt by an office other than that specified, incomplete details/error will delay the running of the payment period by the number of days required to rectify the defects caused by the contractor. The term of the delay for reviewing the invoice is to be taken into consideration in the contractor’s collection file, or removed from the collection file, if invoices are rejected due to being incomplete or containing errors. Payments do not mean acknowledgement that the delivery or service complies with the contract. With a faulty or incomplete delivery or service, notwithstanding its other rights, DG shall be entitled to withhold payments on all claims of the contractor arising from the business relationship, to an appropriate extent, without compensation, until proper supplementary performance has taken place, without the loss of any rebates, cash discounts or similar payment reductions.
c. Payment shall take place during the next payment run following maturity, using a means of payment chosen by DG.
8. Legal regulations
a. For all deliveries and services, the regulations of the Hazardous Materials Ordinance and safety recommendations by the responsible, German professional bodies or professional associations, e.g. VDE, VDI, DIN, shall be complied with. Relevant certificates, test certificates and evidence shall be included free of charge.
b. For deliveries and for performing services, the contractor shall be solely responsible for compliance with accident prevention regulations. Protective equipment and possible manufacturer’s instructions that are required according to these must be included free of charge.
9. Transfer of risk, acceptance, property rights
a. The risk shall transfer to DG, with delivery not including setup or installation, upon receipt at the delivery address specified by DG, with delivery including setup or installation, risk shall transfer to DG upon their successful completion, which is to be documented by an acceptance certificate. Mere commissioning or use by DG shall by no means replace the formal acceptance.
b. With delivery of goods subject to reservation of ownership, DG shall be entitled to an onward sale within the context of ordinary business operations. Not later than with payment of the full remuneration, will DG/its buyer become the owner.
10. Inspection and complaint obligation, investigation cost
a. Obvious defects of the delivery or service will be immediately notified by DG to the contractor as soon as they are ascertained, under the circumstances of the ordinary course of business. For defects that DG notifies within two weeks after being ascertained, the contractor waives the right to the objection of delayed notification of defects.
b. Goods inward inspections shall be carried out as spot-checks. DG is entitled to fully reject the delivery, if the agreed threshold quality value is exceeded, or to test it 100%, at the expense of the contractor.
c. If DG returns defective goods to the contractor, notwithstanding the actual amount of the resulting costs incurred, DG shall be entitled to re-charge the contractor with the invoice amount, plus a flat-rate cost of 5% of the price of the defective goods. However, the flat-rate shall be limited to a maximum of €550.- per returned shipment. Each party shall reserve the right to prove that the actual costs are higher or lower.
11. Warranty for physical and legal defects
a. Defective deliveries or services must be immediately rectified, at the option of DG, by means of delivering a non-defective item/non-defective repetition of the service (supplemental delivery) or by rectification of the defect. The supplementary performance will be regarded as having failed (Articles 440, 636 BGB [German Civil Code]) if the physical defect is still not rectified after the second attempt at supplementary performance. In the case of development or structural defects, supplementary performance will be regarded as unreasonable (Articles 440, 636 BGB [German Civil Code]) and will entitle DG to immediately assert the rights envisaged in Subsection 11 d).
b. During the time in which the delivery item or service is not yet in the possession of DG, the contractor shall bear the risk of loss, demise, deterioration and any other form of frustration.
c. After the unsuccessful expiry of an adequate grace period set by DG for supplementary performance, DG shall be entitled to have the defect and any resulting damage rectified himself, at the expense of the contractor, or have it rectified by a third party. The setting of the grace period can be dispensed with if the supplementary performance is frustrated or has failed, if the contractor seriously and ultimately refuses the supplementary performance as such, or rejects rectification or subsequent delivery due to disproportionate costs, if the type of supplementary performance is unreasonable for DG, or if special circumstances (including particular urgency or risk of higher losses) exist, which justify immediate rectification of defects by DG or third parties, under consideration of mutual interests.
d. To the extent that DG does not decide in favour of self-remedy, after the unsuccessful expiry of an adequate grace period that it has set for supplementary performance, it furthermore has the option to either withdraw from the contract or reduce the contractual remuneration (reduction). Compensation claims by DG shall remain unaffected by exercising this option.
e. Delivered goods and services must be free from third party rights. With the delivery of data processing programs, the contractor must ensure that he holds all necessary rights, particularly industrial property rights, for transferring the program and can grant DG all necessary rights for utilising the program. Also in the case of legal defects, the contractor shall be obligated to supplementary performance, which can particularly take place in the form of subsequent acquisition of all necessary licences or consents from the owners of the rights to the subject matter of the contract.
f. To the extent that nothing different is agreed in individual contracts, the warranty period for defects amounts to 24 months from transfer of risk, pursuant to 9 a). The term of the warranty period will be suspended for the time period which begins with DG sending the defect notification and will end with the receipt of the non-defective delivery or service by DG or the receipt of a written and justified notification by the contractor regarding the inspection of the defect notification, as long as DG does not object to the inspection result within 14 calendar days after receipt of the notification. If DG should object to the inspection result, the suspension shall only end when the contractor notifies DG about a new inspection, declares the defect as being rectified or refuses to rectify the defect. If the contractor should rectify a defect that is not just minor by means of remedy or supplementary delivery, the period mentioned in sentence 1 will begin to run again with the receipt of the new delivery or rectification service, to the extent that the same defect or consequences of a faulty supplementary performance activity are affected, unless the contractor has disputed the defect and expressly declares that this service is voluntary, when providing the supplementary performance.
g. Legal claims and rights, which DG is entitled to as the principal, shall otherwise remain unaffected.
12. Recurring defaults
If the contractor should again provide the same or similar deliveries or services in a defective or delayed manner, in spite of a prior, written warning by DG, the supplementary performance will be regarded as unreasonable and DG shall be entitled to cancellation without further ado, also regarding such deliveries and services, which the contractor is still obligated to provide to DG in the future, from the underlying contractual relationship or another contractual relationship.
13. Exemption with physical and legal defects
The contractor shall exempt DG from all claims, which third parties assert against DG – regardless of the legal grounds – due to a physical or legal defect, which is the fault of the contractor, or due to a lack of a guaranteed characteristic for a product delivered by the contractor or a service provided by the contractor, and will compensate DG with the necessary costs of resulting legal prosecution. In particular, the contractor shall vouch for his deliveries and services not infringing any patents or other third party industrial property rights.
14. Technical documents, tools, resources
a. Technical documents, tools, drawings, works standard sheets, etc. originating from DG represent the intellectual property of DG and are intangible assets protected by copyright, industrial property rights and competition law, as well as business secrecy. The copyright and all other exclusive industrial property rights shall remain with DG. To the extent that it is necessary for processing the order, DG shall grant the contractor a temporary, non-exclusive right of use to the above mentioned rights, which will end as soon as the order is processed. Technical documents, tools, works standard sheets, resources, etc. shall remain the exclusive property of DG. They shall be voluntarily sent back to DG immediately after processing the order, including any duplicates, which may have been produced; in this regard, the contractor shall not be entitled to any right of retention vis-à-vis DG. The contractor shall only be permitted to use the mentioned items for processing the order and may only disclose or otherwise make them accessible to third parties with the express consent of DG and subject to the third party be obligated to maintain secrecy, in accordance with the duties of the contractor, which are regulated here. The same shall apply to the information contained in these items (business secrets and know-how). Any duplication of the above mentioned items or disclosure of the information contained in them shall only be permitted if it is absolutely necessary for processing the order placed by DG.
b. If the contractor should produce the items mentioned in 14 a) partially or entirely at the expense of DG, the regulations in Subsection 14 a) shall apply accordingly. In this case, DG shall share proportionately in the manufacturing costs and will acquire co-ownership in the items, in the proportion of its share of the total costs. The contractor shall transfer to DG, the co-ownership of all items manufactured for DG, in this proportion, and shall keep the item free of charge on behalf of DG, as the indirect owner. DG shall be entitled to acquire the ownership/other co-ownership shares with regard to the item, subject to compensation of costs that have not yet amortised, and demand the release of the item from the contractor. If the contractor should acquire the copyright or industrial property rights through the manufacture of items mentioned in Subsection 14 a) for DG, he shall transfer this to DG, to the extent that it is legally admissible, or grant DG the exclusive rights of use to these rights, which are valid throughout the universe in perpetuity.
15. Provision of material
a. Material, which is provided by DG shall remain the property of DG and shall be kept by the contractor, free of charge and with the care of a prudent businessperson, separately from the contractor’s other items, insure it at his own expense and identify its as DG property. It may only be used for processing the order placed by DG.
b. If the contractor should process the material provided by DG or change its form, this activity will take place exclusively on behalf of DG. DG shall become the direct owner of the resulting newly created items. If the provided material should only be a part of the new items, DG shall acquire the co-ownership of the new items in accordance with the share that corresponds to the value of the material provided by DG.
16. Confidentiality
a. The contractor shall be obligated to treat information or know-how that he obtains in relation to submitting an offer/placement of the offer by DG confidentially, like an entrusted business secret, and not disclose it to third parties, unless the contractor proves to DG that he was already aware of this information when the offer was submitted or it was disclosed to him subsequently by an authorised third party without a confidentiality obligation or that it was generally accessible/became generally accessible subsequently, without it being the contractor’s fault and without him being responsible for it.
b. Manufacturing for third parties and exhibiting products that have been specifically produced for DG, particularly according to DG drawings or production specifications, finished goods, disclosure regarding the subject matter of deliveries and services ordered by DG and reference to a DG order vis-à-vis third parties shall require the explicit, prior, written consent of DG.
17. Identification of goods requiring export approval
The contractor shall be obligated to identify goods requiring export approval and specify the customs tariff number and the number from the German export list.
In his order confirmation or invoice, the contractor will furthermore draw attention to the items that are subject to export approval or US re-export regulations and also notify us of the customs code number, in addition to the relevant export list number.
18. Partial invalidity
If individual provisions of the respective agreement or these Purchasing Terms and Conditions should be or become invalid, this shall not oppose the validity of the remaining Purchasing Terms and Conditions. In such a case, a regulation shall be regarded as agreed, which is valid and feasible and comes closest to the intended result.
19. Place of performance, legal jurisdiction, law
a. The place of performance is the delivery address specified in the orders or call-offs.
b. The exclusive legal jurisdiction is Mainz or Munich, at the option of DG, as long as the contractor is a businessperson. However, in addition to this, DG is also entitled to file legal action in the general legal jurisdiction of the contractor. c. The substantive law of the Federal Republic of Germany shall apply to the contractual relationship, subject to exclusion of the provisions regarding conflict of laws in international private law and the UN Convention on the International Sale of Goods (CISG).