Terms and Conditions of Purchasing and Orders of KLINGER GmbH, 65510 IdsteinTaunus
1. General - Scope of Application
These General Terms and Conditions of Purchasing and Orders shall apply for all our inquiries and orders - also future ones - and also for all delivery contracts concluded with Supplier and other agreements made with Supplier in connection with orders - also future ones.
We hereby contradict all and any terms of Supplier, also for the case of them being transmitted to us in a letter of confirmation or in any other way or of us accepting Supplier's delivery or service without once more contradicting Supplier's terms and conditions.
Subsidiary agreements, deviations from the present terms and conditions as well as supplements or the exclusion of the present terms and conditions shall be in writing in order to become effective. This shall also apply for a waiver of this requirement of written form.
Without our approval, Supplier shall not be entitled to have services owed rendered by subcontractors. Supplier's rights and duties from the business relationships with Klinger GmbH may not be transferred to third parties.
All and any ineffectivity of provisions of the present General Terms and Conditions of Purchasing and Orders or of other contractual provisions shall not affect the validity of the remainder of the contract.
2. Inquiries and quotations
Our inquiries shall be non-committal. If Supplier deviates from our inquiry in its quotation, it shall make express reference thereto. Submission of quotations shall be free of charge and without commitment for us; we cannot grant any remuneration for visits, production of plans, diagrams and similar without an express written agreement.
3. Place of performance
Place of performance for payments shall be Idstein. Place of performance for all other mutual services and deliveries shall be the destination named by us, even if we assume the costs of transport or the insurance of the commodities. Risk of dispatch shall be borne by Supplier in all cases until delivery at the place of performance.
4. Delivery period
The agreed delivery and performance dates shall be complied with. If the agreed delivery or performance date is exceeded, Supplier shall fall into arrears - even without a reminder from us - unless delivery is not made due to a circumstance for which Supplier shall not be answerable. If the agreed delivery or performance date is exceeded, we shall be entitled to withdraw from the contract after fruitless expiry of a subsequent period set by us - notwithstanding all and any further statutory rights - even if the exceeding is not based on reasons for which Supplier is answerable. Setting of a subsequent period shall not be necessary if fulfilment of the contract is of no interest for us as a result of the exceeding of the agreed delivery or performance time.
Unreserved acceptance of delayed deliveries or performances shall not represent a waiver of all and any rights on account of exceeding of the delivery or performance time.
Regardless of this, Supplier shall notify us in good time and without delay of delays in delivery or service to be expected, stating the reasons and the prospective duration of the delay. The obligation to compliance with the agreed delivery or performance time shall not be rescinded thereby. Supplier can only refer to a lack of necessary documents to be provided by us if it has issued a written reminder concerning the documents. Additional costs of an accelerated form of transport becoming necessary as a result of an exceeding of the agreed delivery or performance time occurring or threatening shall be borne by Supplier.
If Supplier fails to notify us in good time and without delay, Supplier cannot refer to an obstacle to performance. In such a case, we shall be entitled to withdraw from the contract partly or totally without setting a subsequent period, even in the event of delayed delivery for which Supplier is not answerable.
If we are prevented from accepting andor inspecting the delivery or performance for reasons for which we are not answerable, this shall not substantiate arrears.
Under no circumstances shall part deliveries already effected be deemed independent transactions. Apart from this, the statutory provisions shall apply.
5. Documents, forwarding of information
Documents which we cede to Supplier or which are produced according to our information may not be used by it for purposes other than the implementation of our order, may not be reproduced or made accessible to third parties. Upon request, the documents shall be returned.
Supplier shall provide us with free diagrams concerning parts of systems, apparatus and machines not produced in series and subject to wear and tear, likewise overview diagrams. In this way, we shall be given the right to use these diagrams for the production of spare parts, for amendments of the objects provided or similar by us or by third parties.
The use of our inquiries and orders and of the sundry correspondence for advertising purposes by Supplier, likewise the forwarding of information from the business relationship(s) in existence with Klinger GmbH by Supplier shall not be permitted without our prior written approval.
6. Warranty for defects
Supplier shall assure that the object of delivery fulfils the generally acknowledged rules of engineering, the accident prevention and industrial protection directives as well as the generally acknowledged rules of safety engineering and industrial medicine.
Supplier shall guarantee compliance with express agreements of properties. Service lives shall also be deemed express agreements of properties. A property of a delivery shall only be deemed finally agreed if this has been expressly confirmed in writing by us.
The provisions concerning warranty shall in particular also apply for the output and consumption figures stated and shall also extend to the parts purchased from sub-suppliers.
Notwithstanding possible longer statutory or contractual periods of limitation, Supplier shall assume warranty for the fact that the object of delivery does not manifest any technical defects or defects in title for a period of two years after inspection, if applicable also after the remedying of notified defects.
The period for the notification of defects not recognisable in a proper examination of the commodities after delivery shall be one month after discovery of the defect.
Supplier shall be liable for replacement deliveries or afterwork to the same extent as for the original object of delivery; the warranty period shall re-commence for replacement deliveries.
Supplier shall be liable for the fact that patents or other protective rights of third parties are not breached by the delivery, use and operation of the object of delivery. Supplier shall hold us harmless against all and any claims by third parties made against Orderer as a result of breaches of such protective rights.
Supplier shall hold us harmless against all and any claims by third parties on account of producer's liability according to the Product Liability Act or other directives insofar as the error triggering the liability is to be ascribed to Supplier. Further or further-reaching contractual or statutory obligations to release shall remain unaffected.
We reserve the right to offset against Supplier's claims with claims to damages or warranty.
Apart from this, the statutory provisions concerning warranty of quality in liability for defects shall apply.
7. Third parties' rights
Supplier shall be obliged to procure the commodities for us free of protective rights or other rights which could be claimed by third parties.
The agreed prices shall apply free destination works or free prescribed destination station, including packaging, allowances and cartage if not otherwise agreed in writing. For purchases expressly concluded ex delivery works or ex dispatch station as an exception, all allowances and cartage incurred until the transfer to the main haulage contractor shall be charged to Supplier, whereas we shall only bear the pure freight costs. If packaging is charged as an exception on the basis of specific agreement, it shall be credited at the agreed value in return freight prepaid.
The agreed prices shall be fixed prices. If price reservations have been agreed in writing as an exception, Supplier shall notify us of all and any price changes without delay. We shall then be free to withdraw from the contract in the event of price increases. We cannot fulfil additional demands only made in invoicing.
To the extent that we have prescribed nothing to the contrary, the most favourable possibility of dispatch for us shall be selected.
The invoice shall not be deemed notification of dispatch. Apart from this, a delivery note must be enclosed with each consignment. Order number, date and kind of dispatch (e.g. German railways, shipping line, haulage contractor) shall be stated in all dispatch notifications and documents.
In the event of the involvement of third parties in implementation of dispatch, Supplier shall be liable for compliance with our dispatch directives by the third parties. The latter shall state their client in all documents.
Supplier shall be liable towards Klinger GmbH for all damages and costs including the demurrage and shunting costs incurred by us through failure to comply with the aforementioned terms and conditions.
The invoice may not be enclosed with the commodities, but is to be sent in duplicate to the invoice receipt office stated in the order immediately after departure of the commodities with statement of our order number and other references. The copies of the invoices are to be clearly marked as such.
Payments shall be due within 30 days following receipt of the invoice and commodities; in payment within 14 days after receipt of the invoice and commodities, we shall be entitled to deduct discount of 3%. The point in time at which everything necessary for the transfer of the amount of money has been arranged by us shall be decisive for the punctuality of the payment.
Payment shall not mean an approval of any defects of the commodities or service.
In calculation according to weight, the weight established by us shall be decisive, subject to official weighing at the place of dispatch.
12. Offsetting, retention
All and any statutory right of offsetting shall only accrue to Supplier with a view to undisputed, legally effective claims or such ready for a decision. All and any statutory right of retention or rejection of service shall only accrue to Supplier with a view to undisputed, legally effective claims or such ready for a decision originating from the same contractual relationship with Klinger GmbH.
13. Applicable law, venue
The law of the Federal Republic of Germany decisive for the legal relationships of inland parties amongst one another shall be exclusively applicable for all legal relationships between ourselves and Supplier. Place of performance shall be Idstein. The venue for all disputes resulting from the contractual relationship shall be Idstein insofar as Supplier is a fully fledged merchant, a public-law legal entity or a public-law special fund.
14. Separability clause
Should one of the aforementioned provisions be legally ineffective, the effectivity of the remaining provisions and of the remainder of the contract shall not be affected. All and any ineffective provisions shall be replaced by new regulation with the same commercial intention as their objective. Insofar as provisions have not become integral parts of the contract, the content of the contract shall be based on the statutory provisions.
Data concerning our customers and suppliers shall be stored and processed by us on EDP insofar as this is necessary for proper handling of the contractual relationships.