General Purchasing Conditions of Horst Witte Gerätebau Barskamp KG

1.0 Conclusion of the contract, written form, confidentiality, amendments

We place orders on the basis of these General Purchasing Conditions. Other conditions shall not become part of the contractual relationship, even when not expressly contradicted by us. The fact that we have accepted a delivery / service without express objection shall under no circumstances be interpreted as our acceptance of your delivery conditions.

1.2
Your quotations should conform to our queries; alternative proposal are nevertheless welcome.
No payment will be made for visits made, nor for quotations, projects, drafts or test deliveries.

1.3
We shall be entitled to revoke the order should you not accept it in writing within eight calendar days of receipt.

Should you accept our order subject to deviations, attention must be clearly drawn to these deviations. A contract shall only have been concluded when we have accepted these deviations in writing.

Call-off shipment orders shall be binding at the latest when you do not object in writing within three days of having received them.

1.4
Only orders placed in writing shall be legally binding. Orders placed verbally or by telephone shall only be valid when subsequently confirmed in writing. The same shall apply to verbal undertakings and subsequent amendments to the contract.

Orders and call-off shipment orders and changes and additions made to them may be made electronically or by data transmission or by means of machine-readable data media.

1.5
You are required to treat our queries, the resulting quotations and the conclusion of the contract confidentially and may not make reference to business relationships with us in publications (for example, in advertising material and reference lists) until we have given our consent in writing.

1.6
The contractual partners undertake to treat all commercial and technical details not already in the public domain and which become known to them through the business relationship as business secrets. Sub-suppliers shall alsobe bound to secrecy. Employees entrusted by you with the execution of our order must also be bound to secrecy in an appropriate manner. They shall be cautioned with respect to §§ 17 and 18 of the German Law on Unfair Competition (abbreviated in German to “UWG”).

Should one of the contractual partners notice that information which is to remain secret is in the possession of an unauthorised third party or that a document which is to remain secret has been lost, it will inform the other party immediately.

The obligation to secrecy shall remain in force after the completion of this contract. This obligation shall not end until and to the extent that the manufacturing know-how contained in the documents made available has become generally known.

1.7
We may demand changes to the item to be delivered even after the contract has been concluded, provided that this can be reasonably expected of you. Both sides must take adequate account of theconsequences of this change to the contract, especially as regards additional or reduced costs and delivery dates.

2.0 Prices, price-checking, dispatch, packaging

2.1
The prices agreed are fixed prices and exclude any kind of subsequent claims. The costs of packaging and transportation to the shipment address or place of use supplied by us as well as customs formalities and customs duties are included in the prices. Should an “ex factory” or “ex warehouse” price have been agreed, we will only pay the most favourable freight costs.

Your current list prices less the rebates agreed with us or reductions customary in the trade shall be applicable should no prices be shown in the order.

The delivery shall also include all contractually-agreed auxiliary and operating materials, spare parts and all documents such as drawings, quality and test certificates, service manuals, assembly and operating instructions, spare parts catalogues and other handbooks.

You guarantee that you will be able to deliver bought-in and standard parts as well as products manufactured by you for a period of at least two years.

2.2
Our order number, part number, manufacturing number and commission number will be shown on all order confirmations, invoices, delivery notes and correspondence. You are responsible for all consequences resulting from a failure to observe this obligation.

2.3
We shall only accept the quantities or number of units ordered. Under or over-shipments are only permissible when agreed beforehand with us.

2.4
Dispatch of the goods shall be at your risk. You shall retain the risk of any deterioration including that of accidental loss until the goods are delivered to the agreed delivery address or place of use.

We are not obliged to unload trucks until the delivery documents have arrived.

2.5
Your obligation to take back packaging materials shall be governed by the provisions of the law. You are required to pay the costs of returning the packaging should it remain your property.

The goods shall be packed in such a way that damage during transport is excluded. Packaging materials shall only be used to the extent that this is necessary for the achievement of this purpose. Only environmentally-friendly packaging materials may be used.

2.6
Commercial clauses shall be interpreted primarily with reference to the version of Incoterms valid at the time the contract was signed.

3.0 Invoicing, payment, certificates

3.1
Invoices together with all associated documents and data must be sent to us separately, in a proper form and in triplicate after the shipment. The second copy must be clearly marked as a duplicate. Invoices which are not properly submitted shall be deemed not to have been received by us until suitably corrected

3.2
Payment shall be made in the manner customary in the trade – either within ten days less a deduction of 3% cash discount or after 30 calendar days without deductions, both to be counted from the date of the delivery/service and receipt of the invoice.

3.3
Should material-testing certificates or other documentation have been agreed, they shall constitute an essential part of the delivery and sent to us together with the delivery. They must however be available to us at the latest ten days after the receipt of the invoice. The term for the payment of the invoice shall begin with the receipt of the agreed certificates or documents.

3.4
In the event of a faulty or incomplete shipment, we are entitled to withhold a portion of the payment until the order is properly fulfilled without any loss of rebate, cash discounts or other payment benefits. Should payment already have been made for faulty deliveries, we are entitled to withhold other payments which are due up to the amounts of these payments made.

4.0 Delivery dates, delayed delivery, force majeure, premature delivery, partial shipments, hand-over of documents, termination of production

4.1
Agreed delivery dates are binding and must be strictly adhered to. Adherence to the delivery date or delivery period shall be determined by the proper receipt of the goods or the faultless performance of the service and the handover of the documents at the place of receipt or use stated by us or the successful completion of acceptance procedures.

Should you have described or confirmed the delivery period as “probable”, “approximate”, “subject to the usual qualifications” or the like, the difference between the date named and the actual date of delivery may be no longer than five calendar days.

The acceptance without reservation of a delayed shipment shall not signify that claims for compensation have been waived.

4.2
Should it become evident to you that an agreed date cannot for whatever reason be met, you are required to inform us immediately and in writing, giving reasons for the delay and its likely length.

In such cases you will nevertheless take all necessary steps in order to meet the agreed delivery date or to ensure that only a short delay occurs and inform us in writing in each individual case of measures you have taken and will continue to take.

The agreed delivery date is in no way changed by information that delay in delivery is likely. You grant us the right to involve your suppliers should this be necessary. You are required to bear all the costs we incur as a result of missing or delayed shipments attributable to you.

4.3
We are entitled to the remedies provided for in law in the event of delays in your deliveries. We are still however entitled, following the expiry without the desired result of a grace period set by us and at our option, either to continue to demand the delivery of the goods/performance of the service, or to rescind the contract with or without compensation or to provide for a replacement shipment from a third party and/or to demand compensation instead of the goods/service ordered.

Our right to the delivery/performance of the service shall only end when we declare in writing the rescission of the contract or compensation in place of the goods/service.

You are required to bear additional costs, especially those arising as a result of necessary covering purchases.

4.4
You may only invoke the absence of necessary documents required from us should you have issued a written reminder and not received the documents within a reasonable period.

4.5
Force majeure and industrial disputes relieve the contractual partner of its obligation to deliver the goods/provide the service for the duration of the disturbance and to the degree of their impact. The contractual partners are required to take all reasonable measures immediately to supply the required information and in good faith to adapt their obligations to the changed circumstances.

We shall be partly or fully relieved from our obligation to accept the goods delivered/service provided and thus entitled to rescind the contract should – taking account of commercial aspects - we no longer be able to use the goods ordered/service provided as a result of the delay caused by force majeure or industrial dispute.

Each side is entitled without further formalities to rescind the contract should these delays last more than three months.

4.6
We reserve the right to return the goods at your expense should delivery be made earlier than agreed. Should goods delivered early not be returned, they will be stored at your expense and risk until the delivery date.

We reserve the right to delay payment of goods delivered until the agreed due date.

4.7
Partial shipments will only be accepted with our express consent. Such deliveries shall be declared as such in the dispatch documents. The documents will also state the remaining quantity still to be delivered. The dates agreed for the delivery of the whole shipment shall still apply, even should we have given our consent to a partial shipment, such that the delivery shall not have been carried out until the contract is completely fulfilled.

5.0 Warranty, information on safety data, period for notifying defects, rectification, new delivery, rescission, reduction in price, compensation, warranty period, suspension, re-commencement

5.1
All goods delivered and services provided to us must be free from material defects and defects of title. They must conform to the agreed quality and accord to the latest state of technology, the relevant legal provisions in Europe and Germany and the rules and regulations imposed by public authorities, employers’ accident compensation associations and professional bodies. The goods delivered/services provided must also be suitable for use as described in the contract or, should no purpose have been defined, for the use customarily made in such cases.

All goods must conform with the latest version of safety rules and must at the time of delivery have been approved by the responsible testing bodies and have been authorised for the intended use. The goods delivered/services provided must above all meet the occupational safety regulations, the requirements of the German law on the safety of tools and products and the regulations concerning accident and fire prevention and the protection of the environment.


You are required to include with the shipment to us the security data sheets relevant to the goods shipped. You shall relieve us of all recourse claims pursued by third parties should you not supply the security data sheets, or only supply them late, or they are incorrect. The same shall apply to all subsequent amendments.

You are required to obtain our prior written consent should in individual cases variations from these provisions be necessary. This consent shall not limit your liability for defects.

You are required to inform us immediately in writing should you have doubts about the type of implementation we desire.

You shall compensate us for all the financial disadvantages we incur should you culpably deliver goods or a provide services to us to which third parties in Germany or, so far as you are informed, in the country of use have title.

5.2
You undertake, as far as is commercially and technically possible, only to use environmentally-friendly products and processes in the goods and services you provide and also in third parties’ auxiliary supplies and services used. You are liable for the environmental compatibility of the products delivered and for all consequential damage resulting from an infringement of your legal obligations to dispose of waste material.

5.3
We will inform you immediately in writing of obvious defects in the goods supplied/service provided as soon as they are established as part of proper business procedures, at the latest however within five days of our receipt of the delivery. The notification period for hidden defects shall be three working days from the date of their discovery.

5.4
You are required when called upon to do so to remedy immediately and at no cost to us, including ancillary costs, all defects in the delivery/service reported as defective during the warranty period, which shall also include the failure to achieve guaranteed data and the absence of guaranteed qualities, at our option either through the repair or the replacement of the defective parts or though a new shipment/new production.

You shall in particular bear all the costs associated with the establishment of the defects and their remedy, including those incurred by us, especially examination costs, dismantling and installation costs and the costs of transport, travel, labour and materials. This shall also apply should these expenses be increased by the fact that the item delivered has been moved to a place different from the place of fulfilment, but only should this not result in disproportionate costs.

Should this be necessary for our own urgent operational reasons and provided that it can be reasonably demanded of you, you are required in an emergency to carry out repairs or new shipments/new manufacturing as part of multi-shift operations or using overtime or work on public holidays.

We shall also be entitled to the legal remedies of rescission of the contract and a price reduction following the expiry without the desired results of a second adequate grace period set by us for the repair or new delivery/new manufacture. An agreed period for subsequent fulfilment shall have the same legal consequences as a grace period set by us.

Should we be entitled to rescind the contract and should the non-fulfilment or inadequate fulfilment of the contract be limited to a distinct part of the service provided, we are also entitled to restrict the rescission to this part and to retain the rest of the contract.

We reserve the right in all cases to pursue claims for compensation.

5.5
In the event of material defects/defective performance, also as part of purchase contracts, and after we have set a deadline for subsequent fulfilment in accordance with § 637 of the German Civil Code which has expired without the achievement of the desired results, we are entitled to take the matter into our own hands or to repair the defects ourselves and to claim an advance for this purpose.

We are entitled to take the required measures or to have them taken by a third party at your expense and your risk should you fail to fulfil your obligations arising from your liability for defects after we have set an appropriate grace period.

We shall invoice work we carry out at the market prices customary between third parties.

We are entitled in urgent cases and in consultation with you to carry out the repair work ourselves or to have it carried out by a third party. We may eliminate minor defects without prior consultation – in fulfilment of our obligation to minimise the damages - without this however limiting in any way your liability for defects. We may then charge you with the costs incurred.

The same shall apply should unexpectedly high costs threaten or should other special circumstances be present which, following careful consideration of the interests of both sides, justify the immediate carrying-out of repair work.

5.6
Unless anything different shall have been expressly agreed, the warranty period for material defects and defects of title is three years. This shall also apply in the case of multi-shift operations. The warranty period shall begin with the handover of the item delivered to us, or to the third party we nominate for this purpose, at the place of reception or use named by us. The warranty period for appliances, machinery, equipment and services provided shall begin with the date of acceptance stated in our written notification of acceptance. Should the acceptance be delayed for reasons for which you are not responsible, the warranty period shall be three years from the date the item delivered is ready for acceptance. The warranty period for buildings and building materials shall be governed by the provisions of the law. The warranty period for spare parts is three years from the date they are installed/become operational and shall end at the latest five years after their delivery.

5.7
The warranty period of the equipment/equipment parts shall be suspended during negotiations on the justification of our complaint from the time the defect is reported until the end of the negotiations or to the end of the repair work.

Should you deliver replacement goods as part of your obligation of subsequent fulfilment, the limitation period for the part delivered shall re-commence with the installation/acceptance of the part. The limitation period for repaired parts shall begin with the end/acceptance of the repair or the installation/new construction of the repaired part. This provision shall not apply when only a minor defect in a part delivered can be repaired by a replacement shipment or repair without major expenditure of time and money. It shall also not apply when the replacement shipment or repair was without question an ex gratia gesture or an amicable settlement of a dispute or was provided in the interests of the continuance of the supplier relationship.

Our acceptance of work done must where applicable be applied for in writing. The time allowed for acceptance shall however under no circumstances end before the expiry of the agreed limitation periods for the notification of defective goods or services.

6.0 Quality assurance, product liability

6.1
You are required to carry out suitable quality assurance of a type and to a degree which accords with the latest state of technology and to prove this to us when requested to do so. You will conclude an appropriate quality assurance agreement with us should we consider this to be necessary.

6.2
Unless anything different shall have been agreed, you will label the items delivered in such a way that they can permanently be identified as your products.

6.3
Should we be made liable for an infringement of official safety regulations or under domestic or foreign product liability rules due to a defect in our products which is traceable back to your goods, we are entitled to demand compensation from you for this damage to the extent that the damage was caused by products supplied by you.

This damage shall also extend to the costs of a precautionary recall action. We shall inform you as far as is possible and reasonable of the content and the extent of the recall measures to be carried out and give you the opportunity to express an opinion.

6.4
You shall also provide for adequate insurance cover against all product liability risks, including the risk of a recall, and submit the policy for our examination should we demand this.

7.0 Liability

Your claims for compensation against us on account of minor negligence, irrespective of the legal justification, are excluded. This exclusion of liability shall not apply to claims for compensation based on an infringement by us of essential contractual obligations. It shall also not apply in the event of injury to life, limb and health.

Compensation for damages in cases of minor negligence in the infringement of essential contractual obligations and gross negligence on the part of simple agents shall be restricted to compensation for damage which was foreseeable and typical at the time the contract was concluded.

Should our liability be excluded or limited, this shall also apply to the personal liability of our employees, representatives and agents.

8.0 Protected industrial rights, beneficial rights

8.1
You warrant that all deliveries are free from third parties’ protected industrial rights and in particular that patents, licences or other protected industrial rights owned by third parties are not infringed by the delivery and use of the items delivered.

8.2
In the event of a breach of these obligations, you will relieve us and our customers of any infringements of industrial property rights and will also bear all the costs incurred by us in this connection; this commitment will also extend to the costs of possible legal action and recall actions. Your indemnity obligation extends to all expenses necessarily incurred by us as a result of claims pursued by third parties.

8.3
Should the use according to the contract of the items delivered/services provided be impinged by the protected industrial rights of third parties, you are required – irrespective of your other contractual obligations – to secure at your expense from the party entitled to use the industrial property right our right to the unrestricted use according to contract of the items delivered/services provided and at no additional cost to us.

You are also entitled to alter the parts of your delivery/service affected by industrial property rights in such a way that they are removed from the area protected but nevertheless still conform to the existing contractual provisions made between you and us.

8.4
We are entitled, should your efforts to comply with section 8.3 not be successful, after consultation with you and for an interim period of at the most six months, to obtain from the party entitled to these rights permission to use the delivered items and services concerned at your expense.

Should all efforts described in sections 8.3 or 8.4 be unsuccessful, you will remove the equipment and return our payment plus interest at the normal bank rate of interest. We reserve the right to pursue further claims in law.

9.0 Termination of production

You will notify us immediately and in writing should you intend to change or to terminate your production. In the event of the termination of production, you are required to ensure that the materials so far supplied to us may still be delivered for a period of at least nine months followingyour notification.

10.0 Partial invalidity

Should individual parts of these General Purchasing Conditions be legally invalid, this shall not affect the validity of the remaining provisions.

11.0 Transfer of orders only with our consent, assignment prohibition, right to offset and withhold payments, transfer of the contract, change of company name

11.1
You are not entitled without our prior written consent to transfer the order or major parts thereof to third parties. You will remain responsible as joint and several debtor should this consent be granted.

11.2
You are not entitled without our prior written consent to assign – either wholly or partly – your receivables due from us or to have them collected by a third party. This consent shall be deemed to have been granted in the event of extended reservation of title.

Should you assign a receivable due from us to a third party without our consent, this assignment shall nevertheless be valid. We may then make payment at our option to you or to the third party in full discharge of the liability.

11.3
You may only net receivables which are undisputed or which have been established by a court of law.

11.4
You are only entitled to withhold payments provided that they relate to the same contractual relationship.

11.5
You are required to inform us immediately of any transfer of the contract required by law and of every change in your company name.

12.0 Cessation of payments, insolvency

We are entitled, should you cease making payments, or should a provisional insolvency administrator be appointed, or insolvency proceedings opened with respect to your assets or a cheque or bill of exchange be subject to protest, to rescind the contract or to terminate the contract wholly or partially with immediate effect and without notice, without this giving rise to claims against us.Should we terminate the contract, services performed up to that time shall only be invoiced at the prices agreed in the contract to the extent that we are able to use them for the intended purpose. Damages incurred by us shall be taken into account in the final settlement of accounts.

13.0 Place of fulfilment

Unless anything different shall have been agreed, the place of fulfilment for the delivery obligation is the shipment address or place of use chosen by us; the place of fulfilment for both parties for all other obligations is Barskamp.The risks of accidental loss and accidental deterioration shall not pass to us until acceptance or transfer has occurred at the place of fulfilment.

14.0 Legal venue

The sole legal venue for all present and future claims arising from the business relationship with businessmen, including claims relating to cheques, is Lüneburg. We reserve the right, however, to pursue our claims at any other authorised legal venue.

15.0 Complementary law

The law of the Federal Republic of Germany shall be applicable to complement this contract, to the exclusion of the UN Agreement on Purchasing Law of 11.04.1980.

Certification marks & Award

Contact
Witte Barskamp KG
Horndorfer Weg 26-28
21354 Bleckede
Germany

Tel: +49 / 58 54 / 89-0
Fax: +49 / 58 54 / 89-40
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