General Terms and Conditions of Purchase
Lanico-Maschinenbau Otto Niemsch GmbH
1. These Terms and Conditions shall form an integral part of our inquiries, orders and confirmations of order. Any contradicting or additional contractual conditions or any conditions of the Contractor deviating from these Terms and Conditions shall not be accepted – even if they are not expressly rejected.
2. With the first delivery, the Contractor accepts these Terms and Conditions also for all the future deliveries as being solely legally binding.
3. Your Terms and Conditions of Sale shall only be valid for the Contract insofar as we expressly accept them in writing – even if they have been sent together with your confirmation of order or if they are known to us.
Any offers submitted to us shall be free of charge and shall not entail any obligation for us.
If the offer is based on an inquiry from our end, the Contractor must abide by it. In case the Contractor has a technically or economically more favourable solution, he has to offer us this solution in addition in the form of a secondary offer being marked as such.
Only purchase orders, order modifications and declarations placed by the purchase department of Bühler GmbH shall be binding. The Contractor must confirm immediately any purchase order on our attached form „Confirmation of Order“.
IV. Delivery time, partial supplies, partial services
1. Unless a firm delivery date has been agreed upon, the delivery time shall start as of the date of ordering. The Contractor shall be obliged to ensure the delivery time agreed upon by taking appropriate measures. Independently thereof, when the Contractor notices that he cannot fulfill his contractual obligations at all or not in time either in full or in part, he shall immediately inform us in writing stating the reasons, the estimated duration of the delay as well as the measures he has initiated. Partial deliveries or partial performances shall require our prior approval in writing.
2. The Contractor shall be obliged to request in time the documents and information being required for the execution of our order. In case of a delay from our end, figure 2 specified above shall be valid.
3. In case of non-compliance with the supply and/or service times – notwithstanding our further rights – we shall be entitled to deduct a penalty amounting to 1% of the total order value per week commenced of the delayed delivery, however not exceeding 10% of the total order value, from each invoice becoming due.
4. The penalty shall not be dropped by accepting a delayed delivery/performance.
V. Quality assurance
1. The Contractor shall carry out and maintain efficient quality assurance and prove it to us upon request.
2. Placing of orders is effected on the condition that, when designing the components/machines/plants, attention is paid to the highest possible environmental compatibility. Great importance is attached to the fact that the components/machines/plants not only show environmentally compatible properties but that they are fabricated in an environmentally friendly way as well. We reserve the right to carry out corresponding checks in your company.
VI. Test during the execution of order
1. We shall be entitled to check the execution of order. To this end, we shall have the right to enter the Contractor’s factory during the normal working hours upon previous notification. The Contractor and us shall bear the expenditure arisen to us respectively.
2. If special tests have been agreed upon, the Contractor shall notify us at least 10 working days in advance of the test readiness and fix a test date together with us. If the object of contract is not ready for testing for reasons the Contractor is to be held responsible for or if deficiencies on the object of contract may require repeated or further tests, the Contractor shall reimburse the expenditure incurred by us.
3. If the Contractor has to furnish material and/or test certificates, he shall bear the corresponding costs. The material and/or test certificates must be available by the time of delivery at the latest.
4. Tests as well as the presentation of certificates shall not affect our contractual or legal acceptance and warranty rights.
VII. Dispatch, packing
1. The dispatch has to be effected at the Contractor’s risk to the unloading point free of freight and packing cost and fees. The delivery note and packing slip are to be attached to the delivery. In all dispatch documents and on the outer packing, the order number, the details concerning the unloading point, the consignee, the place of installation and the account assignment, if specified, and further markings, where necessary, are to be indicated in full in accordance with the order instructions.
2. If, contrary to that, a delivery „free carrier“ has been agreed upon and we do neither instruct the forwarder nor prescribe a type of transport, dispatch has to be effected at the lowest possible costs with a transport-safe packing that corresponds to the legal requirements (packing regulations, etc.) and that can be recycled.
3. Any additional cost resulting from nonobservance of a packing instruction or due to a faster transport in order to keep the delivery date shall be borne by the Contractor.
4. The Contract must pack, mark and dispatch hazardous products/materials in accordance with the relevant legal requirements being valid at the time of dispatch.
5. Customs clearance for deliveries from third countries must be stated in the dispatch documents and the required documents for customs clearance (transport documents, customs invoice, preference documents, certificate of origin) must be presented.
VIII. Transfer of risks, complaints
1. The risk shall pass to us after handover of the delivery at the unloading point and, in case of delivery incl. installation or erection as well as other mechanical services, subsequent to the official acceptance.
2. We shall notify the Contractor of external visible defects within fourteen days after delivery at the latest and of other defects after discovery.
IX. Claims in case of defects, product liability
1. The Contractor shall be held liable without any restrictions that his deliveries and performances are free from material defects and deficiencies in title and, in particular, that they show the contractually agreed properties, that their design is well thought-out and that they correspond to the intended use, the state-of-the-art, the general acknowledged technical and labour medical safety regulations of authorities and professional associations and that they comply with the relevant legal regulations and work efficiently with regard to all the operational aspects such as energy consumption, easy maintenance, etc. If machines, devices or plants are objects of supply, they have to meet the requirements of the special safety rules for machines, devices and plants being valid at the time of fulfillment of contract and they must have a CE marking. Risk analyse are deliver by request.
2. The deadline for warranty claims shall be 36 months, calculated from the transfer of risks. This deadline shall be prolonged respectively by the period of time lying between the first notice of defect and the elimination of the defect. Parts having been touched-up and new parts supplied shall have their own period of time of 36 months for notification of defects, calculated from the point of time of complete elimination of the defect. It shall end at the latest 12 months after expiry of the original warranty period.
3. In case of warranty claims, we shall have the right to demand at our own option touching-up or a replacement supply as well as compensation of our expenditure required for touching-up and the replacement supply. If timely touching-up or a replacement supply proves to be impossible, unsuccessful or unacceptable, the claims regulated by law for cancellation, diminution or compensation for damage can be asserted.
4. As to the fulfillment of warranty claims, the Contractor shall act in pursuance with our operational interests and/or those of the end user. If the Contractor fails to meet his obligation of fulfillment of warranty claims within a reasonable period of time stipulated by us, we shall have the right to remedy the defects on our own or to have them remedied by a third party at the Contractor’s expense and risk.
5. Elimination of defects shall be realised by the Contractor at the location where the object of supply is to be found upon identification of the defect, unless we have agreed with the Contractor that, due to the type and scope of the defect, a repair in the Contractor’s factory seems to be necessary. All costs arising in connection with the elimination of defect as well as reasonable expenditure and the like shall be borne by the Contractor.
6. The Contractor shall exempt us from claims arising from noncontractual product liability insofar as the Contractor or his subsupplier has provoked the fault being the cause of warranty.
X. Spare parts supply
The Contractor shall be obliged to deliver spare parts at a fair price within 10 workdays at max. after ordering over a period of time of at least 10 years for technical/mechanical equipment and over a period of at least 5 years for electrical/electronical equipment, calculated from acceptance of the supplies/services.
The Contractor shall carry at his own expense an adequate liability insurance for any damage either he or his servants and assistants are to be held liable for. The sum insured per case of damage must be proven to us upon request. The Contractor’s contractual or legal liability shall remain unaffected by the scope or amount of his insurance coverage. This shall especially be true for his retained amount.
XII. Documents, secrecy
1. The Contractor shall submit us in time the stipulated quantity of plans, calculations or other documents that he owes us at the date fixed in the order.
2. The release of the documents from our end shall not affect the Contractor’s responsibility for the correctness and freedom from errors.
3. Models, samples, drawings and other documents that we place at the Contractor’s disposal shall remain our exclusive property and shall be regarded as confidential information. The Contractor shall keep them secret as well as any other knowledge on the operational and business-relating processes in our company or our customer’s company gained in the course of the contractual cooperation and he shall respect our copyrights. The documents and information mentioned above are only allowed to be used for the purpose agreed upon by contract.
4. We can, for the contractual purpose, unrestrictedly use the documents that the Contractor establishes on the basis of special data he receives from us. The Contractor shall be allowed to use these documents for the contractual purpose only and he shall not make them available to third parties without our previous written consent.
5. The Contractor shall return to us all the documents and reproductions or copies that we have placed at his disposal and that he has established on the basis of special data delivered by us if we ask him for return or if the documents are not needed any more for the execution.
6. With the sending of the technical documentation the Contractor shall grant us the unrestricted economical right of use regarding further use of these documents in order to establish documentations in connection with the machines/plants we have produced and sold.
XIII. Invoicing and payment
1. An invoice and a shipping note must be sent to us by mail for each consignment. Moreover, the bill of delivery must be attached to the consignment. The shipping note, the bill of delivery and the invoice have to contain the gross and net weights. Furthermore, the origin as well as the Contractor’s tax identification number must be indicated on the invoice. In addition, the complete order number and the number of the Contractor’s bill of delivery as well as the sequence of the items and the item numbers must be indicated on the invoice.
2. We shall be allowed to reject invoices that do not meet the aforementioned requirements without additional expenses incurred by us.
3. Payment periods shall start as soon as we receive the invoice meeting the aforementioned requirements and the delivery; in case of a credit procedure, they shall start from the date of registration of the goods received. Payment shall be effected under reserve of certification of correctness of the supply or service.
4. The payment shall not include acceptance of stipulations and prices and shall not have any influence on the Contractor’s warranty.
XIV. Origin of the goods
If the object of supply are goods of EC origin in terms of the preferential agreement of the EC, the Contractor shall present upon request a corresponding supplier’s declaration as per VOEWG No. 3351/83.
XV. Infringement of industrial property rights
The Contractor shall ensure and shall be held liable without restrictions that no property rights of a third party will be infringed by the use of his delivery and performance according to the contract. The Contractor shall exempt us and, upon request, our end customers from all claims that might be asserted against us or our end customer due to an infringement of industrial property rights. License fees, expenses or costs incurred by us or our end customers due to the avoidance or elimination of property right infringements shall be borne by the Contractor.
The Contractor shall only be allowed to refer to the existing business relation in the course of business with our prior to written approval.
XVII. Transfer of orders
The Contractor shall only be allowed to transfer the execution of the order to a third party with our previous written approval.
In case of a business that the Contractor concludes with us or with one of our associated companies, we shall have the right to offset claims against obligations. This shall also be permitted if the due dates of the mutual claims differ or if one party has agreed upon cash payment and the other one upon acceptances, customer bills of exchange or other types of payment.
XIX. Compensation of disadvantage
The Contractor shall be absolutely liable to us for all the disadvantages incurred by us due to non-observance of the aforementioned stipulations.
XX. Place of fulfillment
The place of fulfillment for the supply/performance shall be the respective place of use and, for payment, it shall be Braunschweig.
XXI. Applicable law, place of jurisdiction
1. The contract shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN sales law.
2. The place of jurisdiction is Braunschweig.
XXII. Final stipulations
Our legal rights beyond the scope of the aforementioned rules and regulations shall not be affected by these Terms and Conditions of Purchase.
If one of these stipulations is or becomes ineffective, the validity of the Contract and the stipulations shall in no way be impaired thereby. The Purchaser and the Contractor shall be obliged to replace the ineffective clause by an effective one being as close as possible to the content of the provisions and the economic purpose of the ineffective clause.
Situation Febraury 2015