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General Terms and Conditions of Purchase
Applying to:
Allgaier Werke GmbH, Allgaier Automotive GmbH,
Allgaier Process Technology GmbH
I. Scope of Application
1. By accepting an order, the Supplier recognises the Terms and Conditions of Purchase set forth below. Our silence with respect to terms and conditions of the Supplier differing herefrom on no account constitutes agreement therewith. In particular, acceptance of the supply/performance of the Supplier does not constitute implied agreement with the Supplier’s terms and conditions of business.
2. These Terms and Conditions also apply to all future transactions with the Supplier.
II. Order, Commission
1. Only orders which are placed or confirmed by us in writing are binding on us. Alterations, ancillary agreements, supplements etc. must be confirmed in writing by our purchasing department with which the entire correspondence is to be conducted, quoting the full order data.
2. The details of the order placed by us, together with respective documentation such as drawings, technical delivery terms, manufacturing specifications, specifications of materials etc., the relevant environmental protection, hazardous substances, hazardous materials and accident prevention regulations and performance or other details regarding technical, physical, chemical, mechanical or other characteristics and DIN, VDE or other industry-wide standards mentioned, form an integral part or the basis of the individual procurement contracts.
3. We are entitled to revoke our order if it is not confirmed within 5 working days from the order date.
4. Call-offs within the framework of an existing supply contract are binding unless the Supplier objects in writing within 48 hours of receipt thereof because the quantities or dates are unreasonable, stating the earliest possible delivery dates.
5. Passing orders on to third parties and using sub-contractors is only admissible given our written consent. Even if our consent has been given, the third party engaged by the Supplier is deemed to be a party employed by the Supplier in performance of an obligation (Erfüllungsgehilfe).
III. Delivery dates, force majeure
1. Delivery dates are binding. All performance must be rendered on the specified date at the agreed place of destination. In the event of default by the Supplier, we shall be entitled to the statutory claims. In lieu of the possibility of providing concrete evidence of possible damage we may also demand liquidated damages in an amount equal to 1 % of the order value for each week of delay commenced, but not exceeding 5 % of the order value.
2. The foregoing rulings also apply in the event that the Supplier renders part or full performance on time but such performance cannot be accepted.
3. The Supplier must notify us without undue delay of force majeure, labour disputes, riots and similar unforeseeable obstacles on the Supplier’s part. If such unforeseeable obstacles occur to us or our customers, causing disruptions to our production or to that of our customers, we shall be released from the acceptance obligation and liability for damages for the duration and to the extent of the effect thereof.
4. The Supplier must notify us in writing without undue delay of each and every threat to compliance with delivery dates affecting the Supplier.
IV. Production release
1. Serial delivery may not be commenced until we have given written acceptance of the samples. In this and other cases where placing the order, delivery etc. depends on the approval of samples, the purchase is a trial purchase.
2. After an order has been placed, the Supplier must notify us of every modification intended with respect to approved samples and enclose new samples for us. These require our written approval and release. This applies accordingly in the event of deviations from release protocols.
V. Supply, delivery
1. If delivery is agreed “ex works” (Incoterms EXW), the Supplier is obliged to give advance notice of readiness for shipment by fax, number: +49 (0)7161 / 301 - 93287 and to agree the carrier to be appointed with the shipping department of ALLGAIER. The Supplier shall be liable for any additional costs arising in the event of non-compliance with this provision.
2. Partial deliveries are not permitted except where explicitly agreed.
3. If the packaging and/or shipping regulations specified by us and the statutory obligations to take back packaging are not complied with, then we have the right to refuse acceptance of the goods.
4. Insofar as packaging is not included in the price agreed, it may only be charged at cost price. Re-usable packaging which has been charged for shall be returned to the Supplier free of all charges and the full invoice value thereof shall be credited. No charges may be made for other packaging material such as wood shavings, paper etc.
5. Delivery notes must be included with all consignments, indicating all the individual parts of the consignments as well as weights and measurements and our order data.
6. The weights determined by the railway authorities at the destination plant are decisive for the calculation of goods transported by wagon load by rail.
7. Please note that we are a waiver customer pursuant to Paragraph 29.1.2 ADSP (German Forwarders’ General Terms and Conditions).
VI. Payment, off-set, assignment
1. Invoices must specify our order number and article number as well as the Supplier’s delivery note number and supplier number.
2. Payment shall be effected at our discretion either with a 3% cash discount at the end of the month following acceptance of the goods and due receipt of the invoice on the 25th day of the month following delivery, or the net amount shall be paid three months after the end of the month of takeover of the goods. All payments are made subject to reservation pending a mathematical and factual verification and reserving our rights with respect to defective delivery, even if this is not explicitly mentioned in our payment. We have the right to withhold payments if defects are already known on the due date.
3. The Supplier is only entitled to offset our claims and to assert a right of retention if and insofar as the Supplier’s claim is undisputed and the Supplier’s counterclaim is established by final and binding judgment. We have the right to also offset claims of the Supplier’s against accounts receivable of an affiliated enterprise within the meaning of Section 15 et seq. German Stock Corporation Act (AktG).
4. Accounts receivable due from us may only be assigned with our consent. Such consent shall be deemed given in the case of extended reservation of title. Suppliers intending to have their accounts receivable collected by means of factoring must already notify us of this in their offer.
VII. Warranty, liability
1. The Supplier warrants that the supplied goods have the agreed quality and are free of defects cancelling or reducing the value of the goods or their suitability for the intended use, and that the goods are free of third party rights.
2. By accepting the order the Supplier undertakes to indemnify us on first demand from and against all third party claims, including, in particular, costs of litigation, payment of damages and the costs of any retrofitting or redesign work arising.
3. Confirmation of receipt of the goods does not exclude any quality or quantity-related complaints ascertained after receipt of the goods. Liability for warranty is not affected by specifying acceptance conditions or the performance thereof. We shall notify the Supplier without undue delay of defects in the delivery as soon as they are ascertained in the normal course of business. To this extent the Supplier waives the objection of delayed notification of defects.
4. The warranty period is 36 months after the passing of risk.
5. In case of justified notification of defects we are entitled, at our discretion, to
- demand re-working of the defective goods;
- return the defective goods at the expense of the Supplier and demand defect-free replacement goods; as regards the warranty, the same shall apply to the replacement delivery as applies to the original delivery;
- remedy the defect ourselves or have it remedied at the Supplier’s expense, after notification to the Supplier, if the Supplier is in default with rectification of the defect;
- demand a reasonable reduction in the price or
- to cancel the respective order in whole or in part if the Supplier fails to rectify the defect within a reasonable period of time set or if the rectification of the fault fails or is unreasonable for us. This also applies with respect to part deliveries still outstanding, without this giving rise to any claims for compensation by the Supplier.
If, due to defective deliveries, it should be necessary to conduct a piecewise or full examination of the goods received, the Supplier shall bear the costs resulting thereby.
Moreover, the Supplier is liable, for whatsoever legal ground, for all loss or damage arising directly or indirectly due to the defective goods. The liability for damages only exists if the Supplier is at fault. If a claim is asserted against us on the basis of no-fault liability, which cannot be legally waived by agreement with respect to third parties, the Supplier shall indemnify us to the extent that the Supplier itself would be directly liable.
6. Except as determined hereinabove, the provisions of statute apply to the warranty and liability of the Supplier.
VIII. Documentation, production equipment
1. Documentation and all types of production equipment such as samples, drawings, models, tools and calculation regulations etc. which we provide to the Supplier or which we have paid the Supplier for, remain our property. In the event of damage, loss or destruction, we must be notified of the respective circumstances without undue delay. Neither such documentation or production equipment nor the products manufactured therewith or in accordance therewith may be passed on to third parties or used for the Supplier’s own purposes. They must be kept secret and at our request they must be returned in perfect condition without undue delay and without retaining any copies, individual items etc., or they must be returned at the latest as soon as the order has been processed or as soon as it is clear that no order will be placed.
2. The Supplier undertakes not to supply to third parties any semi-finished or finished products which have been produced according to our specifications, drawings, models etc., even if such products are defective parts rejected by us.
Third parties may not be permitted to use unchanged the special equipment required for the production of such parts.
3. In each case of a violation of the obligations set forth in paras 1 and 2, the Supplier shall pay us a contractual penalty in an amount of 5 % of the gross order value of the respective order or of the goods produced with the respective equipment. Insofar as a contractual penalty is demanded, any damages to be paid by the Supplier shall be offset against the amount of the contractual penalty. If several orders have been placed, the contractual penalty shall be calculated on the basis of the overall delivery quantities. We reserve the right to claim higher damages arising in an individual case. In this case the contractual penalty shall be offset against such further damages.
IX. Confidentiality, advertising
1. The Supplier undertakes to keep secret all of the commercial and technical information received from us in the course of executing the order as well as all work results. This shall not apply insofar as the respective information is or becomes general knowledge.
2 The secrecy obligation also encompasses all employees and agents of the Supplier, irrespective of the type and legal structure of their collaboration. The Supplier undertakes to impose respective confidentiality obligations on this group of persons. Furthermore the Supplier shall take all reasonable precautions to prevent third parties from accessing the work results and the information obtained from us.
3. The Supplier is not entitled to use the business relationship with us in its advertising without our consent; this also applies in particular to inclusion in reference lists.
X Protective rights and rights of use
All rights of use protected by copyright created in the course of executing the order, industrial property rights in the contractual performance and in all work results created in the framework of the contract, shall pass to ALLGAIER without any further remuneration. They shall be exclusively owned by ALLGAIER without limitation, in perpetuity throughout the universe.
XI. Place of performance
The place of performance for all performance is the place of receipt respectively indicated. The place of performance for payments is Uhingen, Germany.
XII. Jurisdiction and venue, applicable law
1. The place of jurisdiction for all claims resulting from the business relationship is Uhingen, Germany. We do, however, also have the right to take action against the Supplier at the court with jurisdiction at its place of business or domicile.
This shall also apply to claims resulting from bills of exchange and cheques.
2. The contractual relationship shall be governed by the laws of the Federal Republic of Germany. The application of the Hague Convention Relating to a Uniform Law on the International Sale of Goods and of the UN Convention on Contracts for the International Sale of Goods, is excluded.
XIII. Shipping Address
Werk Uhingen (Uhingen plant) DB (German rail) stations (cargo)
Ulmer Str. 75 Industrial track
73066 Uhingen
Germany
Werk Göppingen (Göppingen plant)
Adolf-Safft-Strasse 10
73037 Göppingen
Germany
XIV. Incoming goods
Delivery of incoming goods is only possible from Monday to Thursday from 08:00 to 11:45 a.m. and from 12:30 to 3:00 p.m. and on Friday from 08:00 to 11:45 a.m. Any possible extension to this timeframe for the receipt of goods is set forth in the respective order.
The Supplier shall be charged for any costs arising from non-compliance with this regulation.
