General terms of conditions of purchase
General terms of conditions of purchase (GPC) of KASPAR SCHULZ Brauereimaschinenfabrik & Appartebauanstalt GmbH - As at: July 2017
1.1 The following terms and conditions are an integral part of the contract concluded with us. Deviating terms and conditions of the contractor shall only apply if we have agreed to their validity in writing. This requirement of consent shall also apply if we accept the contractor's deliveries without reservation in the knowledge of the contractor's general terms and conditions.
1.2 Delivery in response to the order placed by us shall be deemed to be acceptance of our GPC.
1.3 Our Terms and Conditions of Purchase only apply to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).
1.4 The GPC in their current version shall also apply as a master agreement for future contracts with the same contractor without us having to refer to them again in each individual case; we shall inform the contractor immediately of any changes to our GPC in this case.
1.5 Legally relevant declarations and notifications to be made to us by the contractor after the conclusion of the contract must be made in writing to be effective.
1.6 All correspondence must contain our order number, the material number and the contact person in purchasing; if this is omitted, we shall not be responsible for delays in processing.
II. Offers and orders
2.1 In principle, we request a binding offer in our enquiries being free of charge for us. We do not grant any remuneration for visits or the preparation of offers and designs, unless they have been expressly confirmed in writing in advance by our specialist purchasing department.
2.2 The contractor must accept our order within a period of two weeks. After the expiry of this period we are no longer bound by our order. If the order confirmation deviates from the order, we shall only be bound if we confirm that deviation in writing.
2.3 Our order shall be deemed binding at the earliest upon submission in writing or confirmation. Orders placed orally or by telephone require subsequent written confirmation by the specialist purchasing department in order to be legally valid. The same applies to oral subsidiary agreements and amendments to the contract.
2.4 Within the bounds of reasonableness, we may demand that the contractor make changes to the design and execution of the delivery item even after the contract has been concluded. The effects of this shall be reasonably agreed by both parties, in particular with regard to additional or reduced costs and delivery dates.
2.5 The drawings and other documents made available to the supplier for the preparation of offers must be returned with the offers without fail. Under no circumstances may such documents be passed on to third parties without our written consent. We reserve all rights to our documents, in particular ownership and copyright.
III. Pricing and terms of payment
3.1 All prices are free at place of receipt (DDP according to Incoterms 2020). They apply to all deliveries and services which the contractor has to effect in order to fulfil its performance obligations up to and at the agreed place of receipt. Shipping and packaging costs are covered by the agreed remuneration. The contractor shall collect the packaging material at our request and shall bear the costs of disposal.
3.2 The agreed prices are fixed prices and exclude subsequent claims and price increases of any kind. If no prices are stated in the order, then the contractor's current list prices with the customary deductions shall apply or the supplier shall state them in the order confirmation. If we object to the prices stated in the order confirmation within seven working days after receipt thereof, a contract shall not arise between us and the supplier. Statutory sales tax is included in the price. It must be shown separately in all invoices.
The supplier shall be entitled to prove to KASPAR SCHULZ that no damage or significantly lower damage has been incurred as a result of the delay. KASPAR SCHULZ has the right to prove that higher damage has been incurred.
3.3 Invoices of the contractor shall be issued in a single copy and shall contain for each delivery all details required in the order, in particular the order number as well as the required documents, and shall be submitted separately from the respective consignment. All further documents, in particular proof of delivery, must be made available to us upon request.
3.4 If documents are missing or incorrect or incomplete or if the invoice is not verifiable for other reasons, the supplier's claim shall not be due.
3.5 Payments do not imply acceptance of the deliveries or services as being in accordance with the contract.
3.6 In the event of defective or incomplete delivery or performance, we shall be entitled to withhold payments and claims arising from the business relationship to a reasonable extent until proper performance has been rendered.
3.7 Unless otherwise agreed, payments shall be due net within 30 days. If payment is made within 14 days, we are entitled to a 3% discount. The payment period shall commence as soon as the delivery or service has been provided in full and the correctly issued invoice has been received. The receipt of our transfer order by our bank shall be sufficient for the timeliness of the payments owed by us. Discount deduction is also permissible if we offset or withhold payments in an appropriate amount due to defects.
3.8 We do not owe any maturity interest. The statutory provisions apply to the occurrence of our default, with the exception of Section 288 II BGB, so a written reminder by the contractor is required in any event.
3.9 The contractor shall only have a right of set-off or retention on the basis of counterclaims that have been established with legally binding effect or are undisputed.
3.10 If a complaint is made about the ordered performance, we shall be entitled to deduct any payment already made without first requesting a credit note from the contractor.
IV. Delivery dates - place of performance - default
4.1 Agreed delivery dates and deadlines are binding. In the event of a foreseeable delay in a delivery or service or if its quality is not in accordance with the contract, we must be notified immediately and our decision on further action obtained.
4.2 The timeliness of deliveries or subsequent performance shall be determined based on the date of receipt at the place of receipt specified by us, and the timeliness of deliveries with installation or assembly shall be determined based on their acceptance.
4.3 The unconditional acceptance of the delayed delivery/service does not constitute a waiver of claims for compensation.
4.4 If the contractor is in default, we shall be entitled to charge a contractual penalty of 1% for each commenced working day of delay, but not more than 5% of the total contract sum (gross). We shall be entitled to claim the contractual penalty in addition to performance and as a minimum amount of damages owed by the contractor in accordance with the statutory provisions; the assertion of further damages shall remain unaffected.
4.5 If the relevant reservation is omitted upon acceptance of the deliveries or services or subsequent performance, the contractual penalty may nevertheless be claimed if the reservation is declared by the time of final payment.
4.6 If the delivery is made to an address that does not correspond to the delivery address specified by us, we reserve the right to demand immediate transport to the agreed delivery address. Alternatively, we shall be entitled to carry out the transport ourselves without further notice and to claim any costs incurred for this against the contractor.
V. Transfer of risk - delivery
5.1 In the case of deliveries with installation or assembly and in the case of services, the risk shall transfer upon acceptance; in the case of deliveries without installation or assembly, the risk shall transfer upon receipt at the place of receipt specified by us.
5.2 The statutory provisions shall apply to the occurrence of our default in acceptance. However, the contractor must also expressly offer us its performance if a specific or determinable calendar date has been agreed for an action or act of cooperation on our part.
5.3 The contractor shall properly pack and ship and adequately insure its delivery and in doing so comply with all relevant packaging and shipping regulations. Additional costs due to non-compliance with shipping regulations shall be borne by the contractor. Packaging materials shall only be used to the extent necessary to achieve this objective. Only environmentally friendly packaging materials should be used.
5.4 We are obliged to inspect the delivery for any deviations in quality and quantity within a reasonable period of time. Our obligation to inspect is limited to defects which become apparent during our incoming goods inspection with external examination including the delivery documents as well as during our quality control in the random sampling procedure. Insofar as acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case.
5.5 The complaint shall be deemed to have been made in good time if it is made within a period of five working days, calculated from the date of receipt of the goods or, if the defects are only noticed during processing or putting to use, from the date of their discovery.
5.6 In addition to the official and statutory documentation, the scope of delivery and services of the supplier also includes the documentation mentioned by the supplier in the order documents.
5.7 In the case of deliveries abroad, the documentation required in each country is part of the supplier's scope of supply and services.
5.8 Products that are subject to export restrictions in whole or in part must be declared and documented accordingly by the supplier. The supplier shall point out current restrictions or delivery limitations already at the offer stage, but at the latest before acceptance of the order.
VI. Claims for defects
6.1 Notwithstanding Section 442 (1) sentence 2 BGB, we shall also be entitled to unlimited claims for defects if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence. This does not apply to our obligations under 5.4 and 5.5.
6.2 We are entitled to remedy the defect ourselves at the contractor's expense if there is imminent danger or if there is otherwise a particular need for urgency.
6.3 The limitation period is generally 36 months, counting from the transfer of risk or acceptance, whichever occurs later. The limitation period for construction work is 60 months.
6.4 If the supplier does not carry out the supplementary performance within a reasonable time limit to be set by us, we shall be entitled to take the following measures:
- to withdraw from the order in whole or in part without compensation
- to demand a reduction of the price
- to carry out rectification or new delivery ourselves at the expense of the supplier
- to claim damages instead of performance
Sections 281, paragraph 2 and 323, paragraph 2 BGB remain unaffected.
6.5 Insofar as the supplier carries out a new delivery or repairs within the scope of subsequent performance, the period specified under 6.4 for the area of subsequent performance shall begin to run again.
6.6 Further or other legal claims remain unaffected.
VII. Ownership, items to be provided, tools of the purchaser
7.1 Material provided shall remain our property and shall be stored separately, marked as our property and managed free of charge. Any processing, mixing or combining of provided items by the contractor shall be carried out for us. If our reserved goods are processed or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item (purchase price plus VAT) to the other processed items at the time of processing, mixing or combining.
7.2 In the event of attachment of items owned by us, the contractor undertakes to inform the attaching party about our ownership title and notify us about this situation without delay.
7.3 Insofar as our security interest in accordance with section 7.1 of these GPC exceeds the purchase price of all our reserved goods not yet paid for by more than 10%, we shall be obliged to release the security interests at our discretion at the request of the contractor.
7.4 The contractor must insure tools belonging to us at replacement value against fire, water and theft damage at its own expense. At the same time, the contractor hereby assigns to us all claims for compensation arising from that insurance; we hereby accept the assignment.
7.5 Tools belonging to us shall be marked by the contractor as our property and shall only be used for the purposes of the contract.
7.6 The contractor must carry out any necessary maintenance and repair work on our tools in good time at its own expense. It shall notify us immediately of any malfunctions; if it culpably fails to do so, this shall not affect any other claims for damages resulting therefrom.
7.7 Tools, moulds, samples, models, profiles, drawings, standard sheets, printing templates and other documents provided by us, as well as items manufactured according to them, may not be passed on to third parties or used for purposes other than the contractual purposes without our written consent. They must be secured against unauthorised inspection or use even after termination of the contract and returned to us without being requested. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.
7.8 The supplier undertakes not to include deliveries and services provided for us in catalogues, media or other advertising and sales documents unless we have given our written consent to this.
VIII. Software use
8.1 The supplier grants us a non-exclusive, transferable, worldwide and perpetual right to use or have used software and the associated documentation, as well as to copy the software for installation in hardware.
8.2 We are entitled to make copies for the purpose of data backup.
8.3 We are additionally authorised to allow end customers to transfer the software licences.
8.4 Technical or technological functions which become known to the supplier through cooperation with us may not be passed on by the supplier to third parties or used for further projects without prior written consent. In the event of an infringement, we shall be entitled to demand compensation for damages.
IX. Exemption - property rights
9.1 If the contractor is responsible for product damage, it shall indemnify us against claims of third parties to the extent that the cause lies within its sphere of control and organisation and it is liable itself in relation to third parties.
9.2 Within the scope of its indemnification obligation, the contractor shall reimburse expenses pursuant to Sections 683, 670 BGB arising from or in connection with a claim by a third party, including recall actions carried out by us.
9.3 The contractor warrants that no rights of third parties within or outside the Federal Republic of Germany are infringed in connection with its delivery.
10.1 The contractor shall take out and maintain product liability insurance with a lump sum coverage of at least € 5 million per case of personal injury/property damage.
10.2 For transports, the contractor shall maintain transport insurance that fully covers the respective value of the goods to be transported.
10.3 For assembly and other services outside the contractor's works, the contractor shall maintain assembly object insurance with sufficient scope of cover.
10.4 If we are entitled to further claims for damages than the aforementioned insurance benefits, these shall remain unaffected.
XI. Subcontracting - assignment of receivables
11.1 The transfer of orders to third parties is not permitted without our written consent and entitles us to withdraw from the contract in whole or in part and to claim damages.
11.2 Claims against us may only be assigned to third parties with our consent.
XII. Secrecy - publication
12.1 The contractor undertakes to keep confidential all information and data which is transmitted to the contractor by the purchaser during the performance of this contract. The contractor shall not disclose, pass on, use or exploit the information and data either directly or indirectly, for its own purposes or for the purposes of third parties. The contractor undertakes to make the information and data transmitted to it by the purchaser accessible only to those employees who need it for the purpose covered by the contract and to oblige those employees, insofar as this is legally permissible, to maintain confidentiality accordingly, even after they have left the contractor's services.
12.2 The aforementioned obligations shall apply as long as the information and data concerned have not become public knowledge.
12.3 The aforementioned obligations arising for the contractor shall not apply to information and data which was already in the public domain at the time of its transmission, was already known to the contractor at the time of its transmission, became public domain after its transmission through no fault of the contractor or was made accessible to the contractor by a third party after its transmission in a legally permissible manner and without restriction with regard to confidentiality or use.
12.4 Any kind of publications regarding deliveries and services for the purchaser shall require the prior written confirmation of the purchaser.
XIII. Jurisdiction - supplementary provisions
13.1 German substantive law applies, to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980.
13.2 The place of jurisdiction is the court competent for the registered office of our company. However, we are also entitled to bring an action at the supplier's place of business.
13.3 The contractor declares that it complies with the core labour standards of the International Labour Organisation (ILO) and adheres to its tariff compliance and the accompanying minimum wage for its employees.
13.4 No tacit, oral or written ancillary agreements have been made. Amendments or supplements must be made in writing. This also applies to a cancellation or waiver of this written form clause.
13.5 If any provision of these terms and conditions is or becomes invalid, this shall not affect the validity of the remaining provisions. The contractor and the purchaser shall replace the invalid provision with a valid provision that comes as close as possible to the purpose of the original provision.