General Terms and Conditions of Purchase of the Stiftung Institut für Werkstofftechnik (IWT)

General Terms and Conditions of Purchase
of the Stiftung Institut für Werkstofftechnik (IWT)

including the business area Official Material Research Laboratory of the Free Hanseatic City of Bremen

Section 1 Preface

These General Terms and Conditions of Purchase are applicable for all deliveries and services commissioned by the Stiftung Institut für Werkstofftechnik (hereafter referred to as the contracting body), as long as it is not otherwise agreed upon in writing by the contracting body and the contractor. With hand-over of an offer, through order confirmation, through acceptance or implementation of an order, the contractor accepts these General Terms and Conditions of Purchase, as long as the contracting body communicated these to the contractor in connection with a call for bids, a request or an order, or in some other way generally informed the contractor that he must anticipate their application. General Business Terms and Conditions of the contractor and varying conditions of the contracting body’s order or these General Terms and Conditions of Purchase are only applicable if and as long as they have been expressly acknowledged by the contracting body in writing. In addition, this only then applies if the contractor refers to its General Business Terms and Conditions in the offer or in the order confirmation. Should individual clauses of these General Terms and Conditions of Purchase be unable to be applied for some reason, the remaining clauses are unaffected by this. In all documents, including invoices, the order number, delivery date, reference and date of the contracting body’s letter must be specified.

Section 2 Offer, Order and Order Confirmation

The offer must be delivered at no cost. The contractor is bound to its offer for 4 weeks. In order to be binding, the order requires the written form. Verbal agreements only have validity if they are confirmed by the contracting body in writing. Orders must be immediately confirmed by the contractor in writing. The contracting body reserves the right to withdraw the order if the confirmation does not take place within a reasonable amount of time.

Section 3 Prices, Payment; Charging

As long as it is not otherwise agreed upon in individual cases, the price includes all services and ancillary services of the contractor (e.g. assembly, installation) as well as all additional expenses (e.g. proper packaging, transportation costs including possible transport and compulsory liability insurance).
If anything else is agreed upon, the forwarding and packaging costs must be
advanced by the contractor and accounted for in the invoices. The contracting body does not owe any interest payable from the due date. The claim of the contractor on payment of interest on late payments remains unaffected. The statutory regulations are applicable for the occurrence of the contracting body’s default. In any case, though, a reminder from the contractor is required. To a legal extent, the contracting body is entitled to the rights of set-off and rights of retention, as well as objection to the unfulfilled contract. The contracting body is particularly authorized to withdraw due payments, as long as they are entitled to assert claims against the contractor due to incomplete or inadequate services. The contractor has a right of set-off or right of retention only due to legally asserted or undisputed counter claims.

 

Section 4 Implementation of the Contract, Observation of Provisions, Sub-Suppliers, Exercise Risks

 

The contractor is obligated to note the corresponding statutory and official regulations and requirements, as well as the general rules of the technology recognized. The delivery or service must especially be consistent with the corresponding standard regulations for security, safety at work, accident prevention, VDE and miscellaneous regulations. According to such 
regulations, the contractor must include protective devices in the delivery within the agreed upon price. Should the contractor have objections against the type of implementation wished for by the contracting body, it must immediately announce this to the contracting body in writing. All documentation required for certification, operation, repair and maintenance (inspection certificates, factory certifications, drawings, plans, operating instructions, and similar documents) must be included by the contractor in the delivery at no cost, in duplicate-ready form if necessary. The contracting body proceeds according to the Packaging Ordinance 91, with the transport packaging being withdrawn at the expense of the contractor. Without previous agreement of the contracting body in writing, the contractor is not entitled to have the service owed by him rendered by third parties (e.g. sub-contractors). The contractor carries the procurement risk for his services, unless it is a matter of an individual production.

Section 5 Delivery Time; Delays, Contractual Penalties

 

The contractor defaults after expiration of the delivery time without the need for a reminder. Should delays be expected, the contractor must immediately communicate this in writing while indicating the reason and the probable duration. Should the contractor be delayed, the contracting body – in addition to further statutory claims – can demand flat-rate replacement of the damages caused by the delay in the amount of 0.5 % of the net price per completed calendar week, but not more than 5 % in total of the net price of the late delivered good. The contracting body is subject to prove that a higher damage was accrued through the delay. The contractor is subject to prove that no damages at all or a considerably small damage was accrued by him.

Section 6 Information Right and Right of Inspection

The contracting body and representatives authorized by it are entitled to inform themselves about the implementation of the delivery as stipulated in the contract, within the operational hours of the contractor, to take an active part in factory-owned inspections and to carry out inspections. The costs for the inspections prompted by the contracting body are to be carried by the contracting body, as long as the personnel or material used for the implementation of the inspections are provided by the contracting body.
Repeated inspections performed by the contracting body because of defects
determined in previous inspections are for the account of the contractor to the full extent. With the placing of sub-orders, the contractor is obligated to ensure that the sub-contractor contractually concedes to the contracting body the information right and right of carrying out inspections with the sub-contractor to the aforementioned extent. The inspections do not release the contractor from his guarantee and liabilities.

Section 7 Changes in the Contract, Assignment of Claim

The contracting body can retroactively request changes or alterations in the nature of the delivery or service within the technical service capability of the contractor. Technical changes and their effects on prices, delivery time or miscellaneous conditions require written form according to Section 2 of these General Terms and Conditions of Purchase. The contractor can operatively assign claims against the contracting body only with its agreement.

Section 8 Shipment and Customs

 

The delivery must be accompanied with a shipping order. For deliveries from free zones, the contractor must communicate this with the contracting body in a timely manner, due to the customs and import handling.

Section 9 Acceptance and Approval, Inspection Requirement

Should the delivery or service be carried out in conditions as stipulated in the contract, or should possible defects that were determined be remedied, it is accepted. Should a trial operation be designated, the acceptance is pronounced following a faultless trial run according to a general acceptance protocol. For the commercial inspection requirement and obligation to give notice of defects, the statutory regulations (Sections 377, 381 of the German Commercial Code) are applicable with the following stipulation: The inspection obligation of the contracting body is limited to defects that become evident under external appraisal during incoming goods inspection of the contracting body, including inspection of the delivery papers, and during the quality inspections of the contracting body in sampling procedures (e.g. transport damages, false and short deliveries). As long as an acceptance is agreed upon, no inspection obligation exists. Otherwise, it depends to what extent an inspection is doable under consideration of the conditions of an individual case according to proper course of business.

Section 10 Rights Arising from Product Defects

Notwithstanding Sections 442 Paragraph 1 S 2 of the German Civil Code, the contracting body is also entitled to unrestricted defect claims, if the defect has remained unknown to the contracting body at the conclusion of the contract in consequence of gross negligence. Should the contractor not comply with his obligation for supplementary performance – at the option of the contracting body, through removal of the defect (rectification of defects) or through delivery of a flawless object (replacement delivery) – within an appropriate period of time determined by the contracting body, the contracting body can remove the defect itself and request a replacement of the expenses required for this purpose or an equivalent installment from the contractor. Should the supplementary performance by the contractor fail or be unacceptable for the contracting body (e.g. due to particular urgency, danger of the operational safety or impending occurrence of unreasonably hazardous damages), no deadline is required; the contractor must be immediately informed, as soon as possible. In case of a material defect or defect of title, the contracting body is otherwise entitled to the reduction of purchase price or to the withdrawal from the contract, according to the statutory regulations. In addition, the contracting body is eligible for compensation and reimbursement of expenses, again according to the statutory regulations.

Notwithstanding Section 438 Paragraph 1 No. 3 of the German Civil Code, the general statute of limitations for defect claims amounts to 3 years after the passing of the risk. As long as an acceptance is agreed upon, the 
limitation of time begins with the acceptance. The 3-year statute of limitations is also correspondingly applicable for claims due to defects of title, whereupon the statutory period of limitation for third party material claims for surrender (Section 438 Paragraph 1 No. 1 of the German Civil Code) remains unaffected. Furthermore, claims due to defect of title do not fall under the statue of limitations in any case, as long as the third party can still assert the right – especially in the absence of limitation period – against the contracting body.

The statutes of limitations of the International Sale of Goods Law, including the preceding extension, are applicable – to the legal extent – for all contractual defect claims. As long as non-contractual damage replacement claims due to a defect are also entitled to the contracting body, the regular statutory limitation period (Sections 195, 199 of the German Civil Code) is applicable for this, if in individual cases, the application of the statutes of limitation of the International Sale of Goods Law does not lead to a longer limitation period.

 

Section 11 Ownership Structure

The contracting body acquires the unrestricted ownership at acceptance of the delivery or service after its transfer; the same applies for the accompanying documentation delivered by the contractor (Section 4, Paragraph 3). Through the transfer, the contractor declares that he is fully authorized to disposition and that third party rights do not exist. Material provisions of any type remain property of the contracting body. They must be designated as such and stored, identified and administrated separately. Should material services be processed, reorganized, joined or mixed with other items, the contracting body acquires the sole ownership of the new items. The contractor stores this for the contracting body free of charge. Ownership and copyright of the documents of the contracting body, which were left by the contractor, remain with the contracting body. On request, the documents must be immediately released with all copies and duplications. The documents of the contracting body may only be applied for the purposes determined in the framework of the contract. In case of infringement, the contractor is responsible for the entire damage.

Section 12 Choice of Law, Place of Jurisdiction

For these General Terms and Conditions of Purchase and all legal relations between the contracting body and the contractor, the laws of the Federal Republic of Germany are applicable, to the exclusion of all international and supranational (contractual) legal orders, in particular the UN Law on the International Sale of Goods. Conditions and effects of the reservation of proprietary rights are liable to the law of the respective whereabouts of the item, as long as the resulting choice of law is not effective or prohibited in favor of the German law. Should the contractor be a merchant in terms of the German Commercial Code, a legal person under public law or a special fund under public law, the sole – and international – place of jurisdiction for all disputes arising from the contractual relationship is the place of business of the contracting body in Bremen.

(May 2008)