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General terms and conditions for purchase agreements, contracts for work and services and work and materials

1. Scope

 

 

1.1 These general terms and conditions apply to the legal relationship between the seller or contractor (“Contractor”) and Steinbeis Papier GmbH or Steinbeis Energie GmbH or EBS Concept GmbH as principal. These terms and conditions also apply to all future contracts.

1.2 These terms and conditions apply exclusively. Any different, conflicting or additional terms and conditions of the contractor shall only become part of the agreement if and to the extent that we have expressly consented to their validity in writing. This requirement of consent shall be required even if in future we accept deliveries or services of the contractor without reservation whilst being aware of its terms and conditions.

2. Conclusion of contract and other legally relevant declarations

 

 

2.1 Orders as well as changes to orders shall only be agreed on the basis of the following general terms and conditions. An order letter on our stationery must be sent for the order to become valid. Orders placed in any other form (e.g. orally or electronically) must be confirmed in this form to become valid.

2.2 All legally relevant declarations and notifications by the contractor (e.g. setting of deadlines or rescission notices) shall, to be valid, require the written form. A waiver of the written form requirement must be made in writing.

2.3 The contractor may not have third parties (e.g. subcontractors) perform its services without our prior written consent. This consent may not be unreasonably withheld. Contraventions entitle us to withdraw from the contract.

3. Delivery dates and performance dates

 

 

3.1 The delivery dates stated in orders shall be binding. Decisive for the compliance with the delivery date or period shall be the receipt of the goods at our works. If the beginning of the delivery period is not determined, the delivery period starts from the date of ordering.

3.2 Unless otherwise agreed in writing deliveries are made Delivered Duty Paid (DDP) in compliance with the currently applicable Incoterms.

3.3 Our obligation to take delivery shall be suspended as long as we cannot accept the goods due to force majeure. Force majeure is present in the event of natural disasters, unrest, administrative measures, strikes and similar disturbances. Force majeure is not present if the disturbance is attributable to our operational organisation area.

4. Delay in delivery

 

 

4.1 If the agreed delivery date cannot be met due to circumstances for which the contractor is responsible, the contractor shall be obliged to compensate us for the damage caused by delay. If the contract determines a certain calendar date for the performance, a reminder is not required.

4.2 The acceptance of delayed deliveries shall not be considered as a waiver of further claims due to this delay or of rights of rescission. We must be notified in good time of foreseeable delivery delays including the reasons and the expected duration of the delay.

4.3 In the event a delay in delivery and subject to any more extensive damages claims, a contractual penalty of 0.2 %, maximum 5 %, of the value of the outstanding delivery or service per day shall be charged and due for payment. The penalty for breach of contract may be claimed up to the complete, unconditional payment of the total remuneration.

4.4 We may refuse taking delivery in the event of delivery at a date earlier than agreed. If delivery is taken of the goods despite delivery ahead of schedule, we shall store the goods for the contractor until the agreed delivery date. The contractor shall bear the costs and the risk of this storage. Accepting early deliveries does not change the due date of the payment to be made.

5. Incoming goods inspection, notice of defects

 

 

5.1 Incoming goods are subject to an incoming goods inspection. This allows us to determine qualitative and quantitative defects. A proper delivery note as under clause 7.2 must be attached to each delivery in order to enable a proper incoming goods inspection. Also where Section 377 German Commercial Code applies, a notice of defect is considered as being received on time if received by the contractor within five working days from delivery. In the event of lack of a proper delivery note, this notice period starts upon receipt of this note. In the event that the goods display hidden defects, this period begins as of discovery. If defects are discovered, we shall be entitled to return the entire delivery if such a measure would not evidently be grossly out of proportion to the negligibility of the defect.

5.2 Upon receipt by the contractor of our defect notification, the statutory limitation of warranty claims is suspended. If supplementary performance is claimed, the warranty period for replaced and/or repaired parts shall start anew. With regard to repaired parts, this only applies insofar as the same defect or the consequences of an inadequate supplementary performance are concerned.

6. Transfer of risk

 

 

In the case of purchase agreements and work and material agreements, the risk shall only be transferred to us after the incoming goods inspection; in the case of work and services agreements after acceptance of the work. If (partial) acceptance has been agreed, acceptance shall only be considered declared when the certificate of acceptance signed by us has been sent. In the case of agreements for work and services the statutory provisions regarding acceptance apply additionally.

7. Delivery and shipping

 

 

7.1. The address for shipment is, unless stated otherwise in the contract, for deliveries of piece goods:

       D-25348 Glückstadt, Stadtstraße 20 (warehouse gate 6)

The times for receipt of goods are from Monday to Friday from 7:00 to 13:00.

7.2. Each consignment shall be accompanied by a delivery note. The delivery notes shall be issued separately for each consignment. In the event of partial deliveries the shortfall as well as the notation “Partial Delivery (Teillieferung)” shall also be stated in the invoice and the delivery note. The last partial delivery must be marked “Rest of delivery (Restlieferung)”. Each delivery note must include our order number.

8. Terms of payment and payment periods

 

 

8.1 Payment shall be made by bank transfer within 30 days of complete delivery and performance (in the case of agreements for work and services including the acceptance under clause 6) and of receipt of invoice. Payments within 14 days of receipt of invoice are made with a deduction of 3 % discount. In addition, this time limit only starts to run if the delivered goods and services are free from defects unless the defect is insignificant. In this case we reserve the right to withhold a part of the payment until the defect has been remedied. If the defect was significant, the payment period starts with delivery of a non-defective item or the remedy of the defect.

8.2 Invoices are to be submitted separately after delivery has been effected. They must not be attached to the shipment. Several orders may not be combined in a single invoice.

8.3 Invoices that do not state our order number and do not include all the necessary legal information as defined in Section 14 UStG (German Value Added Tax Act) shall be considered as not having been issued until declaration by the contractor and will immediately be returned to the contractor for purposes of correction.

8.4 We are entitled to offset claims of the contractor against our claims against the contractor. Claims of the contractor may only be assigned to third parties with our written consent to be valid. This consent may not be unreasonably withheld.

strong>9. Condition of the goods

 

 

9.1 The contractor guarantees compliance with the specifications and implementation regulations stipulated by us.

9.2 Electrical material, electrical equipment, electrical machines and machines equipped with these pieces must meet the standard, DIN, VDE and other order-relevant and statutory regulations valid at the time of the delivery.

9.3 Agreements on the chemical, physical and technical characteristics, dimensions, model type and quality must be observed. Where the condition of chemicals has not been specified in the order or the contract, the specifications in the material safety data sheets, fact sheets, product information and manufacturer specifications that have last been provided to us shall be binding for the properties of the goods.

9.4 We are entitled to have goods ordered examined by independent inspectors at the contractor’s factory.

10. Liability for defects

 

 

10.1 The contractor is liable for defects of quality and title under the statutory regulations unless otherwise stipulated hereunder.

10.2 In the event of delivery of defective goods, we shall initially set the contractor a period of time for supplementary performance or subsequent delivery as long as this is reasonable for us. The contractor shall bear all expenses related to the supplementary performance, also insofar as they are incurred by us, especially the costs for examination, the cost for disassembly and reassembly, the labour and material costs as well as costs for transport and other costs. Insofar as such costs accrue to us, we may demand an appropriate advance payment. Place of fulfilment for the warranty claims is the place where the faulty object is documented. The contractor may only object to the kind of supplementary performance chosen by us because of disproportionate associated costs, if the costs of the chosen supplementary performance exceed the initial purchase price of the faulty goods by more than triple the amount. If the contractor cannot perform the supplementary performance within the appropriately set time period or fails to do so without delay, we may repair the goods ourselves or have them repaired by others in cases of extreme urgency (e.g. interruption of production or imminent danger). The contractor shall bear the costs for this procedure. In such case we may also request an advance payment. We also reserve the right to withdraw from the contract in such a case and to return the deficient goods at the risk of the contractor. If more than two deliveries of the same goods are deficient, we are entitled to withdraw from the contract. The same shall apply to agreements for work and services.

10.3 The contractor shall give assurance that the goods delivered or services performed are free from third party rights. If the contractual use of the item is impaired by industrial property rights of third parties, the contractor shall, without prejudice to its other contractual and statutory obligations, be obliged to either obtain the right of use for us from the rights holder at its own expense or to alter those parts of the products or services concerned that are relevant with regard to the industrial property rights in such a way that they no longer fall under the scope of protection but nonetheless comply with the contractual provisions.

11. Secrecy, manufacturing equipment, material provisions

 

 

11.1 If we have provided models, samples, presents, tools, gauges, drawings and the like to the contractor or if such have been produced according to our specifications and at our expense, they shall remain or become our property. In the same way materials and aids that have been provided free of charge to the contractor for treatment or processing for an order shall remain our property. They may not, even after termination of the contract, be passed on to third parties, transferred for use or be used for third parties, without our written consent. After completion of the order or if no order is placed, all originals, copies, transcriptions, moulds, forms etc. shall be returned to us immediately on first request by us.

11.2 Items produced by the contractor which have been developed and designed by us shall exclusively be sold to us. Furthermore the contractor agrees not to use these pieces for advertising purposes.

11.3 The contractor is obliged to keep secret any internal business information that may have come to its knowledge in connection with the execution of the order. Internal business information is considered to be all facts, circumstances and procedures relating to all the possible principals named under clause 1.1 that are not publicly known and concerning which there is a legitimate interest of non-proliferation. The obligation to secrecy ends when and insofar as the facts become publicly known, without a breach of contract of the contractor being the cause thereof.

11.4 The contractor is obliged to keep the terms of the order and the contract as well as all information and documents provided for this purpose (with the exception of publicly accessible information) secret for a period of two years after conclusion of the contract and to use them only for the execution of the order. Without our prior written consent the contractor may not refer to the business relationship in advertising material.

11.5 Each case of violation of the provisions in clauses 11.3 and 11.4 incurs an appropriate contractual penalty to be determined by us. As a rule the contractual penalty is 10,000.00 euros. Further claims shall remain unaffected.

11.6 The contractor shall store our material with the due care and diligence of a prudent businessman and shall immediately inform us if seizures or similar measures might impair our ownership.

12. Work safety/ accident prevention/ environmental protection/REACH regulation

 

 

12.1 The contractor is responsible for the compliance of the condition of the technical work equipment (plants and machinery) with the currently applicable relevant accident prevention regulations as well as the general rules on safety and occupational medicine.

12.2 If contractors have to perform work in our factory or in individual production areas, we shall only be liable for intentional or grossly negligent breaches of duty on our part. This does not apply where we are liable for injury to life, limb or health or if we are in breach of an essential contractual obligation.

12.3 Deliveries of working materials that we will use for the first time shall be accompanied by material safety data sheets and fact sheets. If the work materials to be delivered are hazardous material within the meaning of the hazardous materials regulation, we must be informed about this fact in writing. If no written instructions are given, we are entitled to withdraw from the contract.

12.4 The contractor warrants to us that it complies with all existing requirements of the REACH regulation regarding the delivered substances and especially that it has carried out the required registrations with the European Chemicals Agency.

12.5 The contractor shall provide us with all information required by us and provided for in the REACH-Regulation without delay and free of charge and comply with the safekeeping duties provided for in the REACH-Regulation. It shall warrant to us the accuracy of the information provided, especially in the substance safety reports and the safety data sheets.

12.6 The contractor shall indemnify and hold us harmless upon first request from all claims of third parties and all purchasers in the delivery chain which are based on a culpable breach by the contractor of the REACH-Regulation. This includes all required legal defence costs. We shall immediately notify the contractor about such claims.

13. Outside workers, certificates of employment

 

 

13.1 Where the contractor or the contractor’s employees carry out work on our premises, the respective assembly guidelines and the construction site regulations apply to them. These will be sent to the contractor prior to the beginning of the works. If this was omitted, the contractor must independently ask for the assembly guidelines and the construction site regulations to be sent.

13.2 If serious violations against safety at work become known, we shall be entitled to withdraw from the contract if the contractor does not immediately end notified violations. Furthermore we shall be authorised to order the contractor’s personnel to immediately cease work. In this case damage caused by delay shall be charged to the contractor.

13.3 The calculation of the hours worked shall only be acknowledged based on time sheets that have been signed by an employee appointed by us.

14. Obligation to procure spare parts

 

 

The contractor is obliged to accept and execute orders for spare and wearing parts for at least 15 years after the last order. The warranty regulation stipulated under clause 10 applies to spare parts. If this regulation represents undue hardship in exceptional cases, this time period may upon request be waived or shortened by written declaration.

15. Place of performance and place of jurisdiction

 

 

15.1 Place of performance and place of jurisdiction for goods and services is Glückstadt. Concerning the place of jurisdiction this only applies insofar as the contractor is a businessman, a body corporate under public law or a special fund under public law.

15.2 The law of the Federal Republic of Germany is exclusively applicable to our orders. The referral regulations of German Private International Law as well as the regulations of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.

16. General provisions

 

 

Work shall be carried out, unless otherwise agreed, during our regular working hours from 7.00 to 17.30. During work our assembly guidelines and the safety instructions they contain must be observed and followed.

17. Severability clause

 

 

Should any or several provisions of these T&C or the contract be or become partly or in whole void, the validity of the remaining regulations shall remain unaffected. As far as the agreement or these general terms and conditions of purchase contain regulatory loopholes, those legally valid provisions shall be considered agreed that the parties to the contract would have agreed upon according to the economic purposes of the contract and the purpose of these general terms and conditions of delivery, had they known of the regulatory loophole.

 

In case of differences in construction the German version of these terms and conditions prevails. The English version has merely been established for convenience reasons.
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