as at 01.07.2010
Download our Terms of Sale and Payment
I. Conclusion of the Contract
1. The documents belonging to the supplier's offer and in particular the illustrations, drawings, plans, calculations, tables and weight information are reference values insofar as these are not explicitly declared as being binding. Warranted characteristics are indicated as such. The Supplier reserves the property and copyright for all of the offer documents; these are not to be disclosed to third parties.
2. The contract shall come into existence with regard to these terms of sale with the written confirmation of the supplier, unless the Contracting Parties sign a deed.
3. The terms of the Ordering Party are binding only if and to the extent in which these are acknowledged in writing by the Supplier.
4. As regards electronic equipment, the "General Terms of Sale for Electronic Products and Services" in the version currently in force are to be applied. These shall be made available at the request of the Ordering Party.
5. Collateral agreements and amendments require the written form. shall notify the Ordering Party of these immediately - if possible already before the start of the works.
II. Scope of the Supply/Service
1. As regards the scope of the supply and service the written order confirmation of the Supplier is authoritative.
2. The Supplier reserves the right to make any modifications to the article of sale in terms of construction and production technology as well as owing to legal provisions, insofar as the article of sale is modified only in an irrelevant manner and said modifications are reasonable for the Ordering Party. The Supplier is to be informed of said modifications as soon as possible by the Ordering Party.
3. If the article of sale is subject to particular provisions in countries other than the Federal Republic of Germany, the Ordering Party is liable for compliance with these. Should the Supplier entertain doubts on the envisaged type of execution, he shall notify the Ordering Party of these immediately - if possible already before the start of the works.
III. Prices
1. The prices are ex works inclusive of loading and exclusive of packaging. The VAT rate in force at the moment of the supply shall be applied.
2. Should a substantial change in the cost factors relevant for the pricing occur - material costs, salaries, freight rates, energy costs, duties under public law - the Supplier can request from the Ordering Party that the latter enter into negotiations on the price adjustment corresponding to the effect of the major cost factors as soon as he has been notified thereof.
IV. Terms of Payement
1. Payments inclusive of the indicated VAT are to be settled without delay upon the receipt of the request for payment and, in particular, unless otherwise agreed, as follows: 1/3 advance payment upon the receipt of the order confirmation; 1/3 of the value of the supply or of each partial delivery upon delivery or notice of the readiness for dispatch, the remaining amount at the issue of the invoice.
2. If the payment deadlines are exceeded, interests at the current bank interest rate (the interests applied by banks for short-term credits) and at least at an annual rate of 2% higher than the current discount rate of the German Central Bank inclusive of VAT shall be applied following the demand for payment.
3. Any counterclaim contested by the Supplier or which has become res judicata does not entitle the Ordering Party to retention or offset.
4. If at the moment of the conclusion of the contract facts detrimental to the creditworthiness of the Ordering Party are known, all of the accounts receivable by the Supplier including any bill-based claim shall be due immediately. Similar circumstances also entitle the Supplier to provide outstanding services only against payment in advance or on security.
5. Should the Ordering Party fail to meet his payment commitments, the Supplier can terminate the contract after the expiry of a period set for the performance of the contract, withdraw from the contract or demand damages owing to nonperformance as well as withdraw the supply.
V. Reservation of Title
1. The Supplier shall retain title over the deliveries until the complete payment.
2. The handling and processing of the deliveries shall take place on the part of the Supplier free from the Ordering Party's acquisition of ownership.
3. As regards a property of the Ordering Party to be considered as main object as understood in art. 947, para. 2, of the German Civil Law Code, the Ordering Party and the Supplier agree that the Ordering Party shall grant the co-ownership of the related property to the Supplier and to retain possession over it on behalf of the latter.
4. The receivables of the Ordering Party resulting from the resale of the reserved assets or from their installation in a third party's property are transferred as from now to the Supplier. At the request of the Supplier the Ordering Party must notify the transfer to his debtors.
5. The Ordering Party is entitled to the collection of the sums due. The Supplier's power to collect sums remains unaffected by the Ordering Party's right to collection. At its request the Ordering Party shall notify the debtors of the receivables transferred to the Supplier as well as provide any information or documents necessary for the collection. The Supplier undertakes to unblock on demand the available securities insofar as their value exceeds the receivables yet to be secured by more than 25%.
6. The Ordering Party is not allowed to pledge and transfer by way of security the deliveries . The Ordering Party must notify the Supplier immediately of any attachment of property and other orders on the part of third parties.
7. The claim for return put forward with regard to the reservation of title is not tantamount to the termination of the contract.
VI. Delivery Deadlines
1. The delivery deadlines starts with the date of the order confirmation from the Supplier or with the signing of a deed, but neither before the receipt and discussion of the documents, authorizations and disclaimers to be obtained by the Ordering Party nor before the receipt of the agreed advance payment. In case of the delayed performance of the contractual obligations of the Ordering Party and of the suspension of the execution on the part of the Ordering Party the delivery deadline shall be extended accordingly.
2. The delivery deadline shall be postponed accordingly in the case of industrial disputes and in particular strikes and lockouts, in cases of force majeure as well as in the event of other obstacles such as operational breakdowns, scrapping, delays of subcontractors or other delays not ascribable to the Supplier, insofar as these events affecting the timely performance of the contract lie outside of the will of the Supplier and are beyond the control of the Supplier. The occurrence and expected duration of such events is to be notified immediately by the Supplier to the Ordering Party, regardless of whether these events occur in the premises of the Supplier or of one of his subcontractors.
3. Should the Supplier fall in arrears, the Ordering Party can claim compensation for damage occasioned by delay to be evidenced - with the exclusion of other claims and rights save for the right to rescind as per item 10.4 herein - for each full week of delay in the amount of 0.5% of the contract price of the supply in arrears, but as a whole no higher than 5% of said contract price. Should an event as understood in item 6.2. herein liable of causing a delay in the delivery occur subsequently, further compensation for default shall not be applicable until the cessation of this event.
4. The delivery deadline is met if the article of sale has left the factory by its expiry or if the readiness for delivery has been notified.
5. Should the delivery be delayed for reasons not ascribable to the Supplier for more than a month from the notification of the readiness for delivery, the Supplier can store the supply parts at the expenses and risk of the Ordering Party. When storing these in his own premises the Supplier can charge at least 0.5% of the contract price of the stored parts per month.
VII. Passing of Risk
The risk passes to the Ordering Party if the supply parts have left the plant. If the dispatch is delayed without fault on the part of the Supplier, the risk passes to the Ordering Party as of the date of the receipt of the notice of readiness for delivery.
VIII. Abnahme und Erfüllung
1. The contractually agreed acceptance of the supply parts is to be provided immediately after the notice of readiness for delivery.
2. The relevant acceptance costs shall be borne by the Supplier, while the individual acceptance costs and fees of the acceptance agency shall be borne by the Ordering Party.
3. If the acceptance does not take place within two weeks from the notice of readiness for delivery or is not completed within this period, the Supplier is entitled to deliver the goods without acceptance. The supply parts are to be considered as contractually delivered with the delivery or, if the dispatch is delayed for reasons not ascribable to the Supplier, with the notice of readiness for delivery. This does not apply if the acceptance is rejected owing to substantial shortcomings.
4. Partial deliveries are permissible.
5. The supply parts - even these if these should reveal insignificant defects - are to be accepted by the Ordering Party without prejudice to the rights resulting from the warranty for defects of the supply.
IX. Warranty
1. 1. The Supplier shall guarantee that his services meet the acknowledged state of the art at the moment of the acceptance and are not marred by defects liable of voiding or reducing the value or fitness for the ordinary or contractually envisaged purpose.
2. The Supplier is not liable for any defects that are ascribable to the specification of services or to the instructions of the Ordering Party, to the materials or components supplied or required by the latter or to the quality of the advance performance of a company required by the Ordering Party unless he has failed to perform a test expected from him or, if necessary, to provide a notice on a feared defect owing to gross negligence.
3. For services and supplies provided by subcontractors and used by the Supplier without any further and substantial processing, the warranty is limited to the assignment of his claims arising with the subcontractor. If it is not possible for the Ordering Party enforce the arising claims against the subcontractor, the claims against the Supplier are revived.
4. The warranty is limited to the rectification of defects or replacement at the choice of the Supplier's choice. The Supplier shall bear the direct costs therefrom resulting for repair or spare parts including those for the shipping as well as the relevant costs for the installation and removal. Otherwise the Ordering Party shall bear any other cost.
5. Warranty claims are to be asserted immediately in writing with the provision of an adequately precise description of the defect within a period of 24 months from the acceptance of the delivery. These claims are subject to a statute of limitations on the expiry of a period of 12 months from the receipt of the claim in writing and at the earliest, however, with the end of the warranty period. The same applies for any warranty claim with regard to the removal of defects.
6. If a defect is not eliminated within a reasonable period, the Ordering Party can lower the purchase price accordingly.
7. Other claims on the part of the Ordering Party and in particular claims for damages not occurring on the article of sale are excluded. This does not apply for consequential harm caused by a defect against which the Ordering Party should be covered owing to the warranty on specific characteristics. In this case, however, the claim for damages is limited to 5% of the order total without VAT.
X. Withdrawal
a) Withdrawal on the part of the Ordering Party
1. The Ordering Party can withdraw from the contract if it is ultimately impossible for the Supplier to fulfil the contractual obligations owing to reasons for which the latter is liable before the risk is passed. In the case of partial impossibility of performance the right to withdraw subsists if the partial performance is of no interest for the Ordering Party. If this is not the case, the Ordering Party can request an appropriate reduction in the price.
2. If the impossibility is ascribable neither to the Supplier nor to the Ordering Party, the Supplier is entitled to the relevant partial remuneration for his expenses.
3. If the impossibility arises through the fault of the Ordering Party or without the gross negligence of the Supplier owing to the delay in acceptance by the Ordering Party, the latter is obliged to provide undiminished consideration.
4. In the case of delay in delivery, the Ordering Party can withdraw from the contract if he has set in writing an additional period of time of reasonable length for the Supplier and he wishes to withdraw from the contract after the elapse of this period in vain.
b) Withdrawal of the Supplier
In the case of unforeseeable events or inevitable circumstances lying beyond the control of the Supplier, the Supplier can withdraw either wholly or in part, insofar as and to the extent in which the events or circumstances alter substantially the financial relevance or the contents of the performance or have considerable effects on his business.
XI. Liability
1. 1. The Supplier is liable with the Ordering Party regardless of the legal grounds to the extent in which the existing manufacturer's liability insurance provides compensation. Insofar as this is not the case, he is liable only for his own gross negligence as well as for the gross negligence of his managerial employees and vicarious persons; no liability subsists for consequential damage. Liability is excluded beyond the foregoing.
2. All of the liability claims against the Supplier, regardless of the legal grounds, are subject to a statute of limitations of no more than one year from the passing of risk to the Ordering Party, if the period of limitation envisaged by the law is not shorter.
XII. Place of Performance/Jurisdiction
1. The place of performance for the supply and the place of jurisdiction for any dispute resulting from the contractual relationship is the place where the supplying plant is located.
2. The Supplier can file a lawsuit also at the principal place of business of the Ordering Party.
3. Venue shall be the city of Osnabrück.
XIII. Arbitral Tribunal/Procedure
In case of the agreement to resort to an arbitral tribunal the procedure shall follow the Rules of Arbitration of the German Committee for Arbitration.
XIV. Miscellaneous
The invalidity of any single provision or part of a provision herein shall not affect any part of the remaining provisions. An ineffective provision is to be replaced by an admissible regulation, which comes as close as possible to the financial purpose of the ineffective provision.
Hammersen Elementbau GmbH & Co. KG
Chemnitzer Strasse3,
49078 Osnabrück
as at 01.09.2014
Download our Terms and Conditions of Purchase
I. Main Conditions
These terms of purchase apply for all of the business transactions with suppliers or other contractors (hereinafter referred as "Supplier") even if these are not mentioned in subsequent contracts. These terms apply also if the Supplier refers to his own terms of business in particular when accepting an order or in confirming an order provided that said terms were approved explicitly.
II. Purchase Orders
1. A purchase order is to be considered as placed if it is issued in writing and signed by us. Verbal or telephone purchase order are binding for us only if we confirm said order with the subsequent sending of a written confirmation. In particular, the drawings provided by us including the tolerance indications are binding. With the acceptance of the purchase order the Supplier acknowledges that he has examined the available plans of the type of execution and the scope of the performance and taken note of these. We are not liable for any obvious mistakes or writing or calculating errors in the documents, drawings or plans which we have provided. The Supplier undertakes to notify us of these errors, so that we can correct our purchase order and re-submit it. This applies also in the case of missing documents or drawings.
2. The acceptance of the order is to be confirmed by signing the copy of the purchase order within two weeks from the order. Otherwise we are entitled to cancel the order.
3. Deviations in the quantity and quality as per the text and contents of our purchase order and subsequent contract amendments are considered as agreed if we confirm these explicitly in writing.
4. Drawings, tools, patterns, models, brands and layouts or the like as well as finished products and semi-finished products, which were provided by us or manufactured in the course of our order, shall remain our property and are to be provided to third parties only with our explicit authorization in writing. Save for agreements specifying otherwise for single cases, these items are to be returned to us immediately with the completion of the purchase order with no need for any particular request. The products manufactured or marked with such production means, brands and layouts can be supplied to third parties only with our explicit authorization in writing.
III. Delivery deadlines
1. The agreed delivery periods and deadlines are binding. These start to run as of the date of the purchase order. The goods must be received at the place of receipt specified by us by the end of the delivery period or by the delivery deadline. If delays are to be expected, the Supplier must inform us immediately of these and request our decision on the maintenance of the order.
2. Should the Supplier fall in arrears, we are entitled following our reminder to demand a penalty of 0.3% of the net order value per day and up to maximum of 5% of the net order value and/or delivery and/or withdraw from the contract. The penalty borne will be deducted from the claim for damages.
3. We are not obliged to grant acceptance before the expiry of the delivery deadline.
IV. Delivery / Packing
1. The delivery is to be carried out at the expense of the Supplier free of charge at the place of receipt specified by us, including the packing. If, by way of exception, we must pay the freight charges, the Supplier must choose the mode of transport we have prescribed or the mode of transport and delivery most favourable for us.
2. The passing of the risk shall take place with acceptance at our place of receipt.
3. The packaging is included in the price. If otherwise agreed, the packaging is to be charged at cost price. The Supplier must choose the packaging we have prescribed and make sure that the goods are protected by the packaging against damage. In case of returns at least two thirds of the charged value is to be credited.
4. The supplier has to collect the packing and transport aids again. If the supplier does not comply with this duty despite a reasonable time limit having been set, then we can dispose of them at the supplier´s cost.
V. Documentation
1. Invoices, delivery notes and packing slip for each delivery is to be provided in duplicate. These documents must comprise: − the purchase order number,
− the quantity and quantity unit,
− the gross, net and, if necessary, the charged weight,
− Article description with our article number,
− Remaining quantity for partial deliveries.
2. In case of freight shipments a dispatch note is to be sent to us separately on the day of the dispatch.
VI. Prices
1. The price that is quoted in the purchase order is binding. Unless otherwise specified, the agreed prices are fixed prices, insofar as the Supplier does not reduce the relevant prices in general.
2. The prices that are quoted by us are net prices. The supplier has to quote the statutory value-added tax separately in addition, according to the UstG (German turnover tax law), insofar as he is obligated to pay it.
3. The Supplier shall not apply with us prices and terms that are more unfavourable compared to those granted to other customers, if and to the extent in which identical or equivalent requirements subsist in the specific case.
VII. Invoicing / Payment
1. Invoices are to be issued separately for each purchase order. The payment shall be settled only upon the complete receipt of goods in perfect conditions or of the complete and faultless service and after the receipt of the invoice. The foregoing is to be applied accordingly for partial deliveries. Delays in time owing to incorrect or incomplete invoices do not interfere with any discount period.
2. We will pay the purchase price with a discount of 3% within 14 days from delivery and receipt of the invoice, or within 30 days after receiving the invoice, insofar as nothing else has been agreed in writing. The day when the bank-transfer order is handed over or sent to the post or bank applies as the day of payment, in the case of a bank transfer or payment from one of our bank accounts.
3. Rights of setoff and retention are vested in us to the legal extent.
4. Receivables of the Supplier involving us can be assigned to third parties only with our approval. Payments shall be made only to the Supplier.
VIII. Supplier’s inspection and testing duty / Quality assurance
1. The supplier undertakes to continuously inspect the respective goods in detail for faultlessness prior to delivery. While doing so, the supplier is especially obligated to check whether the goods which he is to deliver personally have a faultless quality as stated under terms of contract and that they are suitable for the typical utilization purpose for which they are designed. (such as the good´s typical installation or customary use).
2. The supplier has to maintain a certified quality-assurance system and to submit proof of it in response to our demand.
IX. Guarantee / Warranty / Complaints
1. The supplier has to provide with the goods free from materials defects and defects of title.
2. The supplier accepts the obligation that his supplies and services comply with our information, with the contractually agreed qualities and with the respectively generally recognized engineering rules, especially the relevant DIN standards and the public building regulations. Insofar as they (i.e., the goods) bear a quality label or a seal of approval from a quality assurance association or another association, they must fulfil the quality requirements that are associated with it.
3. Moreover, the supplier assures that the goods which he has personally delivered are suitable for the typical utilization for which they are designed (such as the goods´ typical installation or customary use).
4. In case of the delivery of faulty goods the Supplier shall be granted the opportunity of rectifying the defects or making a subsequent delivery. If the Supplier cannot provide for or fails to carry out the foregoing immediately upon request and within the envisaged time, we are entitled to send us the goods at the risk of the Supplier and to cover our requirements otherwise. In urgent cases we are entitled to provide personally for the rectifying of the defects after notifying the Supplier or to have these works be performed by a third party. The resulting costs shall be borne by the Supplier.
5. The statutory period of limitations for claims due to defects in the product that was manufactured by the supplier, or for claims arising from the order that was implemented by him, will end when five years and six months have expired after the delivery and acceptance.
6. If the purchase is a commercial act for both of the contracting parties, then article 377, paragraph 1 of the German Commercial Code applies, provided that we can inspect the delivered goods and notify any defects in the goods within a period of three weeks after delivery.
7. The supplier is prevented from pleading that we have not notified the defect in good time according to article 277, paragraph 2 of the German Commercial Code, if the defect was recognizable to him within the framework of his own duties of inspection and testing (clause VIII).
8. The warranty is determined according to the legal regulations, insofar as nothing else is regulated beforehand or afterwards.
X. Costs of dismantling and re-installation
1. If we have installed the goods which were delivered by the supplier or used them in another way and a claim is made against us by a third party to dismantle and reinstall the goods on account of the goods´ defectiveness, or to remanufacture them, or to reimburse the costs of dismantling and reinstalling them (possibly the costs of disposal and transport too) or for the manufacturing costs, then the supplier will be obligated to exempt us from the costs arising from these activities, insofar as the goods´ defectiveness was recognizable to him within the framework of his duties of inspection and testing (clause VIII) or if the supplier has culpably infringed his obligations. The supplier reserves the right to prove that the claimed defect did not exist yet when the risk passed to us. Any further legal rights, especially claims for reimbursing the consequential damages arising from the defect, remain unaffected in our favour in every case. The supplier´s right and duty to remedy the defect in the defective goods which were delivered by him remains unaffected likewise.
2. If we resell the goods which were delivered by the supplier to a customer and the latter installs them in a building according to their customary type of utilization, or if he uses them in another way and the customer makes a claim against us for reimbursing the costs of dismantling and reinstallation on account of the goods´ defectiveness (possibly the costs of disposal and transport too) or for the manufacturing costs, then the supplier will be obligated to exempt us from the costs arising from these activities, unless the defect about which the customer has made a claim still did not exist when the risk passed to us (article 478, paragraph 2 of the German Civil Code).
XI. Manufacturer's Liability
As regards defects ascribable to a fault of the Supplier, he shall exempt us from the resulting manufacturer's liability insofar as he is immediately liable for said defects.
XII. Trademark Rights
1. The supplier is responsible for no patents or other third-party rights being infringed because of his delivery and our utilization of it.
2. If claims are made against us by a third party in this respect, then the supplier will be obligated to exempt us from these claims on first written request.
3. The supplier´s duty of exemption also refers to all expenditures that we necessarily incur or which arise in connection with a third party´s assertion of a claim.
4. This does not apply insofar as the Supplier has manufactured the supplied goods as per the drawings, models or other equivalent descriptions and instructions provided by us and does not know or cannot know with regard to the products he has manufactured that trademark rights were violated.
5. The statutory period of limitations for these claims is ten years, beginning from the date when the respective contract is concluded (i.e., signed).
XIII. Insurances
The supplier is obligated to arrange a third-party liability insurance (especially with an extended product liability insurance inter alia, for covering any costs of dismantling or installation that are caused by defects (according to article X)), with a reasonable sum insured for the case of his product liability. The supplier assures that he has arranged a mechanical breakdown insurance corresponding to the value in the case of hiring vehicles, machines or equipment with or without operating personnel. The aforementioned insurances must be proved on demand.
XIV. Force Majeure
1. War, civil wars, export restrictions or trade restrictions owing to a change in political relations as well as strikes, lockouts, breakdowns, operating restrictions and events that make the performance of the contract impossible or unreasonable are to be considered as force majeure and exempt us from the obligation to timely acceptance for the whole duration of one of the said events. The Contracting Partners undertake to notify each other of the foregoing and to adjust to the new circumstances in good faith.
XV. Custody / Property
1. We shall retain title to the material supplied by us. It is to be stored separately and is to be used only for our purchase orders. The Supplier is liable for depreciation or loss even if without fault. The items manufactured with the materials supplied by us are our property in the relevant manufacturing status. The Supplier shall keep these items for us; the costs for the safekeeping of the items and materials kept on our behalf are included in the purchase price.
XVI. Business Secrets
1. The Supplier undertakes to handle our purchase order and all of the related commercial and technical details as business secrets.
XVII. General Terms and Conditions
1. The invalidity of any provision herein it shall not affect any part of the remaining provisions.
2. As regards the legal relations between the Supplier and us, German law including the laws on international sale of movables shall apply even if the domicile of the Supplier is located abroad.
3. The place of performance shall be the city of Osnabrück. As regards the delivery, a place other than the above can be agreed.
4. Venue shall be the city of Osnabrück.
Hammersen Elementbau GmbH & Co. KG
Chemnitzer Strasse 3,
49078 Osnabrück,
Germany