General Terms and Conditions of Purchase

General Sales, Lease, Supply and Payment Terms and Conditions of thyssenkrupp Infrastructure GmbH, Essen

I. Application

  • 1. Insofar as nothing different is expressly agreed upon, our general Sales, Supply and Payment Terms and Conditions are a part of any purchase contract entered into by us. Our general Sales, Supply and Payment Terms and Conditions exclude the application of contrary conditions of our contract partner. Such conditions are not recognised by us and are not binding for us even without specific contradiction.
  • 2. All agreements which are entered into for the purpose of the performance of a purchase contract between us and our contract partner must be recorded in writing in the contract itself; this particularly also applies for supplementary agreements entered into orally before entry into the contract.
  • 3. Our sales employees are not authorised to enter into oral supplementary agreements or to make oral promises which go beyond the content of the written contract.

II. Offer and Entry

  • 1. Our offers are non-binding and are subject to change without notice; Acceptance declarations and all orders require our written confirmation or our confirmation by telex in order to be legally valid.
  • 2. We hereby reserve the ownership rights and copyright in illustrations, diagrams, brochures, catalogues, forms, templates and samples, models and other comparable documents which we include with our offers. Where such deviations have no impact on the contractual usability of the goods, minor deviations are possible from illustrations, diagrams, brochures, catalogues, forms, templates and samples, models, weight and dimension information which we include with our offers, and such deviations do not give rise to any warranty claims. Information of that kind is always conveyed in the best possible manner, but can always only be approximately authoritative.
  • 3. Deviations from the contractually-agreed performance are permissible if they are reasonable for our contract partner, taking account of the latter’s interests. This is particularly the case in connection with commercially-standard or technically unavoidable deviations pertaining to quality, superficial characteristics, colour, weight, measured values and piece numbers.

III. Price and Payment

  • 1. If nothing different is expressly agreed upon, we charge the prices valid on the day of entry into contract, plus the respectively-valid statutory VAT. Our prices are “ex works prices”. Our disposable packaging usual in the business is free. The disposal of the packaging is done by our contract partner.
  • 2. We hereby reserve the right to correspondingly increase our prices if cost increases occur after entry into the contract, particularly due to tariff agreements or increased prices for materials. We will provide evidence of the cost increases to our contract partner upon request. If our contract partner is not a fully-qualified merchant or a public-law legal entity or a public-law special fund, then the foregoing provision only applies if there are more than 4 months between entry into contract and the delivery becoming due. If in the individual case the price increase amounts to more than 5%, then our contract partner is entitled to rescind the contract.
  • 3. Payments must be made in cash, by bank transfer or giro check transfer. If a transfer is made, then only the crediting of the amount to our bank account is deemed to be payment. We are not obliged to accept bills of exchange and cheques. If we accept them, then the acceptance is done in payment pending full discharge of the debt; only their redemption shall be deemed to be payment. Bank, discount and collection fees are always borne by our contract partner and are immediately due. In all cases, bills of exchange are only accepted without guarantee of correct presentation and protest. Payments by cheque/bills of exchange always require an express prior agreement.
  • 4. Payments must be made within 30 days of invoice date, without discount. We grant cash discount in the case of payment in advance, COD delivery, or cash payment within 8 days, insofar as our contract partner has always made its payments punctually under all of the purchase contracts entered into with us up until that point in time. We state on the invoices the amount of the cash discount granted in the individual case. The general calculation basis for cash discount is the value of the goods - invoice amount including VAT after deduction of any rebates or other special allowances, without taking account of any freight or packaging costs. If a payment deadline is exceeded, we charge maturity interest in the amount of 5% above the basic interest rate, insofar as our contract partner is a fully-qualified merchant, public-law legal entity or public-law special fund. In the event of default in payment, we are entitled to charge default interest in the amount of 9% above the basic interest rate, insofar as a consumer is involved in the legal transaction, in the amount of 5% above the basic interest rate or to claim the default loss actually suffered by us, which can also result in higher default interest. Our contract partner is free to produce counter-evidence that we have suffered a lower amount of loss. If there are facts and circumstances which make our purchase price claim appear jeopardised, then upon request our contract partner is obliged first to pay the purchase price under the current order which has not yet been executed, before the goods are delivered. Our contract partner is free to produce counter-evidence that our claim is not jeopardised.
  • 5. Our contract partner shall only be entitled to set-off rights if its counterclaims have been finally determined in a legally-binding manner, are undisputed or have been acknowledged by us. Our contract partner shall not be entitled to any right of retention due to disputed counter-claims, unless our contract partner is not a fully-qualified merchant or a public-law legal entity or a public-law special fund. In such cases, our contract partner has the possibility of exercising a right of retention insofar as its counterclaim arises out of the same contract relationship.
  • 6. On the basis of the authorizations granted to us by the companies belonging to our Group (sec. 18 Stock Corporation Act, AktG)*, we shall be entitled to offset all the Seller’s accounts receivable from us or from the aforementioned Group companies, irrespective of their basis in law. This also applies if a cash payment has been agreed in one case and, in another case, payment in bills of exchange or other services on account of performance. If appropriate, these agreements shall only relate to the balance. In the event that the accounts receivable are due at different dates, our accounts receivable shall fall due at the latest when our liability is due and is settled on the value date.

IV. Delivery, Dispatch, Transfer of Risk

  • 1. Delivery dates or deadlines, which can be agreed bindingly or non-bindingly, always require the written form.
  • 2. We are not responsible for delivery and performance delays due to force majeure and due to events which significantly make the delivery more difficult for us or make the delivery impossible for us (e.g. strike, lock-out, official decree, etc., even if they occur at our suppliers or sub-suppliers), even in the case of bindingly-agreed deadlines and dates. They entitle us to defer our delivery for the duration of the impediment plus a reasonable lead time, or to rescind the contract in whole or in part with respect to the portion which has not yet been performed. If the impediment endures for longer than two months, then after setting a reasonable supplementary period for performance, our contract partner is entitled to rescind the contract in whole or in part with regard to the potion which has not yet been performed. Compensation claims cannot be made by our contract partner in the event of an extension of the delivery time or our delivery obligation ceasing to exist due to the above-named reasons. We can only rely on the named impediment circumstances if we have informed our contract partner without undue delay in the respective case.
  • 3. If we are responsible for the non-adherence to bindingly-promised delivery dates or deadlines or if we are in default, then our contract partner can demand a default compensation sum in the amount of 0.5% for every completely-elapsed week of the default, however a total of not more than 5%, in each instance calculated from the value of the goods of the deliveries affected by the default. More extensive claims of our contract partner are excluded unless the default is due to intentional behaviour or gross negligence on our part or on intentional behaviour or gross negligence on the part of our legal representatives, executive employees, vicarious agents, etc., or if it is a commercial transaction where time is of the essence, or if our contract partner is able to provide evidence that due to the default attributable to us, interest in the performance of the contract has ceased to exist.
  • 4. The risk is transferred to our contract partner as soon as the consignment has left our warehouse or as soon as the consignment has been handed over to the person performing the transport; the latter is the case irrespective of who is bearing the freight costs. The foregoing risk transfer provisions also apply in the case of shipments within the same location. They also apply if shipment is carried out by our vehicles or by our personnel.
  • 5. If our contract partner is in default in acceptance, we are entitled to demand compensation of the loss suffered by us. In all cases, upon the occurrence of the default in acceptance, the risk of accidental deterioration and accidental loss of the goods is transferred to our contract partner. If we demand compensation, the amount of the loss to be compensated is 20% of the value of the goods. The loss is to be set higher if we provide evidence of higher loss; it is to be set lower if our contract partner provides evidence of lower loss.

V. Warranty

  • 1. Defect complaints must be made in writing, specifying the individual defects complained of and with an express warranty claim.
  • 2. In the case of obvious defects, we can only take a defect notification into account if it is received by us in writing at the latest within 14 days after the arrival of the goods; in the case of hidden defects, only when it is received by us in writing at the latest within 14 days after the discovery of the defect.
  • 3. In the event of the existence of a defect, we perform under the warranty in the form of subsequent performance, in which regard we are free to remove the defect or to supply flawless replacement goods. If at least one subsequent performance attempt by the vendor has failed, then, insofar as nothing to the contrary arises out of the following provision, a compensation claim or reduction or rescission right also comes into consideration.
  • 4. For all instances of simple negligence, we are only liable if this results in a loss of life, personal injury or damage to health, or if in other cases the accusation of simple negligence pertains to our managing directors or executive employees. Compensation claims for any consequential loss also only exist in the amount of the loss which is typically foreseeable in connection with contracts of this nature according to the usual course of events.

VI. Reserved ownership rights

  • 1. The goods shall remain our property until all our claims against the Buyer under the contract have been satisfied.
  • 2. Should this retention of title provision be invalid under the law of the country in which the goods are situated, such security which corresponds to the above retention of title provision shall be deemed to have been agreed upon. The Buyer shall take all measures necessary for such security to come into effect and/or to be maintained.
  • 3. Should a more extensive retention of title clause be permitted by the law of the country in which the goods are situated (such as – without prejudice to the generality of the foregoing – the assignment of the Buyer’s future claims resulting from the resale of the goods delivered by us), the Buyer shall, upon our request, implement such clause.

VII. Other Contractual or Extra-Contractual Liability

  • Compensation from the perspective of fault in connection with the contract negotiations, compensation due to deterioration or breach of ancillary obligations, other contractual or extra-contractual compensation is owed by us only in the amount of the loss typically foreseeable for contracts of this nature according to the usual course of events. For all instances of simple negligence, we are only liable if this results in a loss of life, personal injury or damage to health, or if in other cases the accusation of simple negligence pertains to our managing directors or executive employees. The foregoing limitations of liability do not apply for claims pursuant to § 1.4 of the German Product Liability Act.

VIII. Applicable Law, Place of Performance, Legal Venue,

  • 1. The legal relations between us and our contract partner are exclusively subject to the law of the Federal Republic of Germany, and the application of the CISG (UN Convention on Contracts for the International Sale of Goods) is hereby excluded.
  • 2. Insofar as nothing different is agreed upon, our registered office is the place of performance.
  • 3. If our contract partner is a fully-qualified merchant, public-law legal entity or public-law special fund, then Essen is the legal venue. However, we are also entitled to sue the purchaser at the court having jurisdiction over its place of residence.

General Lease Terms and Conditions

I. Application

  • 1. Insofar as nothing different is expressly agreed upon, our general Lease Terms and Conditions are a part of any lease contract entered into by us. Our general Lease Terms and Conditions exclude the application of contradictory terms of our contract partner. Such conditions are not recognised by us and are not binding for us even without specific contradiction.
  • 2. All agreements which are entered into for the purpose of the performance of a lease contract between us and our contract partner must be recorded in writing in the contract itself; this particularly also applies for supplementary agreements entered into orally before entry into the contract.
  • 3. Our employees to whom the leasing is entrusted are not authorised to enter into oral supplementary agreements or to make oral promises which go beyond the content of the written contract.
  • 4. Contract amendments require the written form.
  • 5. Our offers are non-binding and are subject to change without notice. Acceptance declarations and all other declarations by the tenant require our written confirmation or our confirmation by telex in order to be legally valid.

II. Lease Term

  • 1. The lease term commences upon the day that the leased item or items are handed over to our contract partner.
  • 2. The lease term comes to an end upon the return of the leased item or items to us, however not before the expiry of the contractually-agreed lease term, irrespective of any contract terminations for important reasons.

III. Price and Payments

  • 1. If nothing different is agreed upon, we charge the prices valid on the day of entry into contract, plus the respectively-valid statutory VAT.
  • 2. Transport of the leased item or items as well as the loading of the leased item or items are done at our contract partner’s cost and risk. Our contract partner is obliged to make machines available on the agreed transport days by means of which the loading of the leased item or items is safe and guaranteed within a reasonable period.
  • 3. Payments must be made in cash, by bank transfer or giro check transfer. If a transfer is made, then only the crediting of the amount to our bank account is deemed to be payment. We are not obliged to accept bills of exchange and cheques. If we accept them, then the acceptance is done in payment pending full discharge of the debt; only their redemption shall be deemed to be payment. Bank, discount and collection fees are always borne by our contract partner and are immediately due. In all cases, bills of exchange are only accepted without guarantee of correct presentation and protest. Payments by cheque/bills of exchange always require an express prior agreement.
  • 4. The rent is due in advance, and if it is calculated according to time periods, in each instance as of the commencement of the individual time periods.
  • 5. Payments must be made within 10 days of invoice date, without discount. If a payment deadline is exceeded, we charge maturity interest in the amount of 5% above the basic interest rate, insofar as our contract partner is a fully-qualified merchant, public-law legal entity or public-law special fund. In the event of default in payment, we are entitled to charge default interest in the amount of 9% above the basic interest rate, insofar as a consumer is involved in the legal transaction, in the amount of 5% above the basic interest or to claim the default loss actually suffered by us, which can also result in higher default interest. Our contract partner is free to produce counter-evidence that we have suffered a lower amount of loss.
  • 6. We hereby reserve the right to correspondingly increase our prices if cost increases occur after entry into the contract, particularly due to tariff agreements or increased prices for materials. We will provide evidence of the cost increases to our contract partner upon request. If in the individual case the price increase amounts to more than 5%, then our contract partner is entitled to rescind the contract.
  • 7. Our contract partner is only entitled to the right to set-off and reduction if the claims made by it have been determined in a legally-final and binding manner, if they are undisputed, or if they have been acknowledged by us. Our contract partner shall not be entitled to any right of retention due to disputed counter-claims either, unless our contract partner is not a fully-qualified merchant or a public-law legal entity or a public-law special fund. In such cases, our contract partner has the possibility of exercising a right of retention insofar as its counterclaim arises out of the same contract relationship.
  • 8. The leasing is done without personnel. If in the individual case a demonstration of or instruction in the use of a leased item is necessary, we will carry out the demonstration or the instruction through our personnel. The costs associated with this are to be borne by our contract partner.

IV. Liability, Transfer of Risk

  • 1. Our contract partner is obliged to carefully follow our installation and assembly instructions and to keep the leased item or items in proper and functional condition.
  • 2. Our contract partner will only not be liable for destruction, loss and damage as well as for deterioration which goes beyond the usual or the contractually-owed degree if our contract partner is able to provide evidence that no fault is attributable to it.
  • 3. If our contract partner is liable pursuant to paragraph 2 above, then it is obliged to return the leased item or items to us and to compensate us for the costs which must be expended in order to professionally repair the leased item or items. If repair is not possible or is only possible with disproportionately high expenditure, then our contract partner is obliged to bear the costs which are necessary in order to procure an equivalent replacement for the leased item or items.
  • 4. In cases of paragraph 2 above, our contract partner remains liable for performance of the lease contract, particularly for the payment of the rent.
  • 5. The tenant collects the work parts at the warehouse of ThyssenKrupp Bauservice GmbH, and shall return them to this location after termination of the contractual relationship (debt payable to the creditor). Place of performance and delivery thus shall be the warehouse of ThyssenKrupp Bauservice GmbH. This shall apply also when ThyssenKrupp Bauservice GmbH carries out the transport and / or return transport of the leased property by a forwarding agent or by own staff upon request of the tenant. If upon request of the lessee the return transport of the leased property is carried out by a forwarding agent or by the own employees of ThyssenKrupp Bauservice GmbH, the lessee shall be obligated to guard the leased property until the said is picked up by ThyssenKrupp Bauservice GmbH, in particular guarding against theft, damage and destruction. The liability of the lessee in keeping with Figure (2) of this section shall remain unaffected.
  • 6. For all instances of simple negligence, we are only liable if this results in a loss of life, personal injury or damage to health, or if in other cases the accusation of simple negligence pertains to our managing directors or executive employees. Compensation claims for any consequential loss also only exist in the amount of the loss which is typically foreseeable in connection with contracts of this nature according to the usual course of things.
  • 7. Our contract partner indemnifies us for the duration of the lease term against third-party claims arising out of the breach of the public safety obligation or out of other legal reasons with regard to the leased item.

V. Termination

  • 1. We are entitled to terminate the tenancy for an important reason.
  • 2. An important reason shall particularly exist if our contract partner is in default for two successive dates with the payment of the rent or a not insignificant part of the rent, or in a time period which extends over more than two dates is in default with the payment of the rent in a sum which amounts to the rent for two months, unless an application has been filed for the initiation of insolvency proceedings concerning the contract partner’s assets and the default occurred in the time before the initiation application.
  • 3. An important reason is also in particular if a deterioration in the financial circumstances of our contract partner occurs which jeopardises our claim for payment of the rent. Significant deteriorations in the financial circumstances of our contract partner which jeopardise our claim for payment of the rent are the following sets of circumstances in particular: Discontinuation of payment by our contract partner; non-timely redemption of bills of exchange or cheques of our contract partner. If such a set of circumstances exists and if for that reason we terminate the tenancy, then our contract partner is free to produce counter-evidence that there has not been a deterioration in its financial circumstances which jeopardises our claim for payment of the rent. Moreover, an important reason for termination of the contract relationship exists if the initiation of insolvency proceedings concerning the assets of the contract partner is applied for, unless the termination is effected due to a default in payment of the rent which occurred in the time before the initiation application or due to a deterioration in the debtor's financial circumstances.

VI. Substitution

  • In the event of a substitution, the original leased item or items are replaced by the new leased item or items. Otherwise, the respective tenancy continues unchanged.

VII. Sub-Leasing

  • Our contract partner is only entitled to sub-lease or to other hand-over of the leased item or items to third parties with our prior written consent. In the case of sub-leasing or hand-over of the leased item or items to a third party by our contract partner, we remain the indirect holder of the leased item or items in addition to our contract partner. Our contract partner hereby assigns to us now its replevin claims and any remuneration claims against the third party under the sub-lease or other hand-over of the leased item or items.

VIII. Applicable Law, Place of Performance, Legal Venue

  • 1. The legal relations between us and our contract partner are exclusively governed by the law of the Federal Republic of Germany.
  • 2. If our contract partner is a fully-qualified merchant, public-law legal entity or public-law special fund, then Essen is the legal venue. However, we are also entitled to sue the purchaser at the court having jurisdiction over its place of residence.

General Terms and Conditions of Purchase of thyssenkrupp Infrastructure GmbH

  • (1) Purchaser’s terms and conditions of purchase shall apply exclusively to all – current and future – purchase orders for goods, services, work and labor and the handling thereof. Supplier’s terms and conditions which deviate from Purchaser’s conditions of purchase shall not be recognized by Purchaser unless Purchaser expressly consents to their validity in writing.
  • (2) The terms and conditions of purchase shall also apply exclusively if Purchaser accepts or pays for supplies/services in full awareness of contradictory or varying terms and conditions of Supplier.
  • (3) Commercial clauses shall be interpreted in accordance with the Incoterms as amended.

(I) Purchase orders

  • (1) Purchaser orders shall be binding only if they are placed by Purchaser in writing. Verbal agreements – including subsequent amendments and additions to these terms and conditions of purchase – must be confirmed in writing by Purchaser for them to become valid.
  • (2) For the period of their validity, cost estimates shall form a binding basis for resultant orders. They shall not be remunerated unless expressly agreed.
  • (3) Documents used by Supplier in business dealings with Purchaser shall indicate at least: purchase order number, commission order number, plant, place of receipt, full article text/item description, volumes and volume units as well as VAT ID (for imports from the EU).

(II) Prices

  • (1) The prices are fixed prices. They are inclusive of everything Supplier has to do to fulfill his supply/service obligation.
  • (2) In prices stated “free domicile”, “free … destination” and other “free / franco” deliveries, the freight and packaging costs shall be included. We shall pay for packaging only if and to the extent that compensation for such is expressly agreed otherwise.
  • (3) For freight forward deliveries we shall only pay for the lowest available freight costs unless we specify a specific type of shipment.

(III) Scope of supply/service; ownership; usage rights

  • (1) As part of the scope of supply/service
  • – Supplier shall transfer to Purchaser ownership of all technical documents (also for subcontractors) and other documents needed for manufacture, maintenance and operation. Said technical documents shall be in German and shall be based on the international SI standard system
  • – Supplier shall grant Purchaser non-exclusive and irrevocable usage rights that are unrestricted in terms of location, time and content to all protectable supplies/services for all known and as yet unknown types of use; [in particular Purchaser shall be entitled without restriction to duplicate, edit, disseminate in unaltered and altered form and publish via wire-based or wireless technology all supplies/services, and to transfer all contractually granted usage rights to third parties with or without charge]
  • – Supplier shall grant Purchaser exclusive usage and utilization rights in the scope described above to those supplies/services he produces specifically for Purchaser
  • – Supplier pledges to strictly observe the provisions of the Employee Inventions Act and file claims to the corresponding inventions in due form and time. This shall also apply insofar as Supplier does not employ his own staff, but rather commissions third parties in the framework of the permitted employment of temporary workers
  • – Purchaser shall have the unconditional authority to carry out or have carried out by third parties repairs and modifications to the purchased supplies/services, and also to manufacture spare parts or have them manufactured by third parties
  • (2) If the scope of supply/service is to differ from that agreed, Supplier shall be entitled to additional claims or schedule changes only if a corresponding supplementary agreement is concluded in writing with Purchaser prior to performance of the order.
  • (3) The ordered volumes are binding. In the event of excess supplies/services, Purchaser shall be entitled to refuse these at the expense and cost of Supplier.

(IV) Quality

  • Supplier shall install and maintain a state-of-the art, documented quality system of suitable type and scope. Supplier shall prepare records, in particular of quality inspections, and make these available to Purchaser on request. Supplier hereby agrees to quality audits being carried out by Purchaser or Purchaser’s representative to assess the efficiency of said quality system.

(V) Supply and service periods/deadlines/default

  • (1) Agreed delivery dates are binding. In the event that agreed deadlines are not met, statutory provisions shall apply unless otherwise agreed in these General Terms and Conditions of Purchase. The delivery period shall begin on the date of the legally binding purchase order unless otherwise agreed in writing. Supplies/services provided before the agreed delivery dates shall entitle Purchaser to refuse supply/service until it is due.
  • (2) Unless otherwise agreed in writing, the delivery date or delivery period shall refer to the date on which Purchaser receives the goods. This shall also apply to all shipment documents, operating instructions and other certificates necessary to fulfill Supplier’s delivery obligations.
  • (3) If Supplier becomes aware that an agreed deadline cannot be met, he must inform Purchaser in writing without delay, stating the reasons and the expected duration of the delay. Supplier shall also propose suitable counteractions to avert the repercussions of such delay.
  • (4) Unreserved acceptance of the delayed supplies/services may not be construed as relinquishment of any compensation to which Purchaser is entitled; this shall apply until full payment of the fee owed by Purchaser for the supply/service concerned has been made.
  • (5) Without prejudice to the aforesaid, in the event of any delay in delivery for reasons attributable to Supplier, penalty payments shall be due to Purchaser equivalent to 0.5% of the purchase price for each week of delay or fraction thereof, up to a maximum of 5%, unless otherwise agreed. If Purchaser names, and Supplier accepts, a specific vessel for the shipment of the goods, Supplier shall, notwithstanding the aforesaid, bear all charges for demurrage, dead freight, etc., if the goods are for whatever reason shipped late or not at all.

(VI) Delivery/performance and storage, risk

  • (1) Insofar as Supplier and Purchaser agree validity of one of the “Incoterms” of the International Chamber of Commerce (ICC) for the contract, the currently valid version thereof shall apply. They shall apply only insofar as they do not contradict the provisions of these general terms and conditions of purchase and other concluded agreements. Unless otherwise agreed in writing, the supply/service shall be “delivered duty paid” (Incoterms: DDP) to the place of delivery/performance or use indicated in the purchase order. Supplier shall bear the risk of accidental loss and accidental deterioration, including for “franco” and “free domicile” deliveries, until the goods are handed over at the place of destination.
  • (2) Supplies/services must be shipped to the addresses indicated. Delivery to/performance at a place of receipt other than that designated by Purchaser shall not constitute transfer of risk to Purchaser even if said place of receipt accepts the delivery/service. Supplier shall bear the additional costs of Purchaser resulting from the delivery being made to/service performed at an address differing from the agreed place of receipt.
  • (3) Part supplies/services are not permitted unless Purchaser has expressly consented thereto. Part supplies/services are to be marked as such, delivery/service notes shall be submitted in triplicate.
  • (4) Excess or short deliveries shall only be permitted within the normal framework.
  • (5) If weighing is necessary, the weight determined on the calibrated scales of Purchaser shall apply.
  • (6) Insofar as Supplier has the right to have the packaging needed for shipment/services returned, this shall be clearly marked on the delivery/service documents. In the absence of such marking, Purchaser shall dispose of the packaging at the cost of Supplier; in this case Supplier’s right to have the packaging returned shall expire.
  • (7) Items needed for the fulfillment of an order may be stored on the premises of Purchaser in allocated storage areas only. For such items Supplier shall bear the full responsibility and risk of the entire order until the transfer of risk.
  • (8) During transportation the statutory provisions, in particular the provisions of the law on the transportation of hazardous goods and the applicable hazardous goods directives including the respective annexes and appendices must be complied with.
  • (9) The declaration of the goods in the consignment notes for shipment by rail shall comply with the valid provisions of the railways. Costs and damages incurred due to incorrect declaration or failure to declare shall be at the expense of Supplier.
  • (10) Supplier shall have the receipt of deliveries confirmed in writing by the indicated place of receipt.
  • (11) Supplier shall bear the risk of accidental loss and accidental deterioration, including for “franco” and “free domicile” deliveries, until the goods are handed over at the place of destination.
  • (12) Packaging costs shall be paid by Supplier unless otherwise agreed in writing. If in an individual case Purchaser bears the costs of packaging, this shall be charged to Purchaser at the lowest rate. The take-back requirements shall be based on the packaging ordinance of August 21, 1998 as amended. In the case of freight-paid return of packaging, the packaging shall be credited at 2/3 of the invoiced value.

(VII) Execution, sub-suppliers, assignment

  • (1) Insofar as supplies/services are provided under work and labor contracts Supplier shall not be entitled to transfer the execution of the contract in whole or in part to third parties.
  • (2) Supplier is obligated to name his subcontractors to Purchaser on request.
  • (3) Supplier shall not be entitled to assign his contractual claims vis-à-vis Purchaser to third parties or permit third parties to collect same. This shall not apply for legally established or uncontested claims.
  • (VIII) Termination
  • (1) Purchaser shall be entitled to terminate the contract in full or in part without specifying reasons. In such an event, Purchaser is obligated to pay for all supplies/services completed up to that point and make appropriate payment for material procured and work/services performed; in this case § 649, Sentence 2 of the German Civil Code (BGB) shall apply. Further claims of Supplier are excluded.
  • (2) Purchaser is entitled to terminate the contract with immediate effect for cause in particular where a material deterioration in the financial situation of Supplier occurs or threatens to occur and thus endangers the fulfillment of commitments vis-à-vis Purchaser. In this case Purchaser has the right to acquire material and/or semi-finished products including any special equipment on reasonable terms and conditions.

(IX) Invoicing, payment, offsetting

  • (1) Unless otherwise agreed or unless Supplier offers more favorable conditions, payments shall be due after receipt of an invoice issued in accordance with § 14 German VAT Act (UStG) within 14 days with 3% discount or within 30 days in the full net amount. Invoices shall be settled no later than 30 days after delivery/performance and receipt of invoice. If goods/services are supplied/performed and accepted ahead of the agreed delivery date, the due date for payment shall continue to be based on the agreed delivery date.
  • (2) Payment and discount terms shall begin on receipt of the invoice, though not before receipt of the goods or in the case of services not before their acceptance and, insofar as documentation, test certificates (e.g. factory certification) or similar documents are required under the scope of supply, not before said documentation has been handed over to Purchaser as contractually agreed.
  • (3) Purchaser shall pay by check or bank transfer. Payment shall be deemed to be on time if the check is sent by post on the due date or the transfer is initiated at the bank on the due date.
  • (4) Interest after due date shall be excluded. The interest rate for default shall be 5 percentage points above the basic interest rate pursuant to § 247 German Civil Code (BGB). Purchaser shall be entitled in all cases to demonstrate that the damages caused by default are lower than those demanded by Supplier.
  • (5) Statutory rights of set-off and retention shall apply for Purchaser. Supplier may offset only against uncontested or legally established receivables; his rights of retention shall apply only insofar as they are based on the same legal relationship.
  • (6) On the basis of the authorization given to Purchaser by the companies belonging to Purchaser’s group in accordance with § 18 German Stock Corporation Act (AktG))*, Purchaser shall be entitled to offset any claims due, for whatever legal reason, to Supplier from Purchaser or a company of Purchaser’s group. The same shall also apply if cash payment has been agreed by one party and payment in bills of exchange or other arrangements on account of performance has been agreed by the other. In these cases such arrangements shall relate to the balance only. If the claims are due on different dates, Purchaser’s claims shall become payable by no later than the due date at which Purchaser’s liabilities fall due for payment and shall be settled at the value date.

(X) Claims under liability for defects

  • (1) Supplier guarantees on a fault basis that his supplies/services are of the agreed quality, fulfill the intended purpose and comply with the generally accepted rules of technology and the agreed properties and standards. In the event that Purchaser incurs costs such as transport/travel, working and material costs or contractual penalties as a consequence of defective supplies/services, Supplier shall bear said costs.
  • (2) Supplier undertakes to supply Purchaser only with goods that are free of all signs of ionizing radiation. All costs and damages incurred through violation of this obligation shall be borne by Supplier.
  • (3) The limitation period for defect liability claims shall begin with the full supply/performance of the scope of supply/service or, if acceptance testing is agreed, on acceptance.
  • (4) The limitation period for defect claims is 36 months; longer statutory limitation periods shall remain unaffected by this. The limitation period shall start anew for newly supplied/performed parts, but for repaired parts only insofar as the same defect or the consequences of inadequate remediation are concerned, remediation would involve a wider scope, a significant amount of time or higher costs, and Supplier has not remedied the defect expressly only out of goodwill, to avoid disputes or in the interests of continuing the supply relationship. Purchaser – or in the case of drop shipments Purchaser’s customer – shall check deliveries upon receipt for quality and completeness to the extent that can be reasonably expected and within the scope of Purchaser’s technical possibilities and any defects detected notified immediately. At all events the notification is deemed to be in good time insofar as it arrives at Supplier by mail, fax, e-mail or phone within a period of eight working days of receipt of goods and a longer period has not been agreed in the individual case, or – for hidden defects – from the time of discovery. For defects notified within the limitation period, the period shall end no earlier than six months after assertion of the notice of defects. Supplier shall not object on the grounds of delayed notification (§§ 377, 381, (2) German Commercial Code (HGB)) for all other than obvious defects.
  • (5) All defects which are notified within the period of limitation shall, at Purchaser’s choice, be remedied by Supplier or replaced by new goods/services without delay and at no cost to Purchaser. The costs of remedying goods or supplying/performing replacements, including all incidental costs (e.g. freight), shall be borne by Supplier in accordance with the statutory provisions. In the event that Supplier does not meet his remediation obligation within an appropriate period defined by Purchaser, Purchaser shall be entitled to eliminate the defects himself and demand reimbursement of the required expense or a corresponding advance from Supplier. This shall not affect statutory rights of withdrawal, purchase price reduction or compensation for damages. Remediation by Supplier shall be deemed to have failed after the first unsuccessful attempt.
  • (6) Purchaser may demand that Supplier reimburses the expenses in connection with a defect which Purchaser has to bear in respect of his customer if the defect already existed at the time of the transfer of risk to Purchaser.

(XI) Guarantees/indemnification

  • (1) Supplier pledges to Purchaser that he shall comply with the provisions of the German Minimum Wage Act (MiLoG) and indemnify Purchaser against claims by third parties, in particular claims pursuant to § 13 MiLoG. General Terms and Conditions of Purchase of thyssenkrupp Infrastructure GmbH
  • (2) In the event that existing compensation claims by third parties can be asserted vis-à-vis Purchaser due to supplies/services of Supplier, Supplier shall on first demand indemnify Purchaser against the full amount of such claims and pledge to cover reasonable legal and court fees of Purchaser.
  • (3) Supplier further guarantees that goods produced, stored and transported on behalf of Purchaser, supplied to Purchaser or accepted by same shall be produced, stored, processed and loaded at secure operating and handling facilities, and protected from unauthorized access during production, storage, processing, loading and transportation. Supplier pledges that the employees involved in the production, storage, processing, loading, transportation and acceptance of such goods are reliable and that they have been checked against the currently valid EU sanction lists. Supplier further pledges that all business partners acting on his behalf have been informed that they also need to take measures to secure the aforementioned supply chain. Supplier agrees to his data being checked against the currently valid versions of the EU sanction lists.

(XII) Place of fulfillment, legal venue

  • (1) Unless otherwise agreed by Purchaser’s plant, place of fulfillment for all supplies/services shall be the place of receipt indicated by Purchaser.
  • (2) The legal venue shall be the domicile of Purchaser, or at Purchaser’s choice, Supplier’s general legal venue.

(XIII) Applicable law

  • All legal relations between Purchaser and Supplier shall be governed by the prevailing substantive law of the Federal Republic of Germany to the exclusion of the United Nations’ Convention of April 11, 1980 on the Contracts for the International Sale of Goods (CISG) in the currently valid version.

(XIV) Prohibition of advertising/secrecy

  • (1) The use of the thyssenkrupp logo/logotype and any mention of the thyssenkrupp Group, thyssenkrupp AG or individual Group companies as reference customers of Supplier requires the express prior consent in writing of thyssenkrupp AG in each individual case.
  • (2) Supplier shall maintain secrecy vis-à-vis third parties in respect of all operational events, facilities, plants, documents, etc. used at Purchaser’s premises or those of his customers which become known to Supplier in connection with his activities for Purchaser, also after submission of the corresponding offers and after completion of the contract. Supplier shall impose corresponding obligations on his agents.

(XV) Reservation of title

  • (1) We shall only recognize any simple reservation of title by the contracting partner to the extent that ownership of the goods is transferred to us upon payment and we are authorized to resell and transfer the goods in the course of normal business. We shall not accept specific forms of reserved title, in particular transferred, subsequent or extended reservation of title, current account reservation or extended corporate reservation of title. Conflicting terms and conditions of the contracting partner shall not be recognized by us; they are hereby expressly rejected and shall not form part of the contract.
  • (2) The contracting partner may only demand the return of goods on the grounds of reservation of title if he has previously withdrawn from the contract.

(XVI) Severability/written form

  • Should individual provisions of these conditions become entirely or partly invalid, the remaining provisions shall remain valid. The same shall apply for the corresponding contract. Insofar as these General Terms and Conditions of Purchase demand declarations by the contractual parties to be made in writing, simple text form shall be sufficient.

(XVII) Data protection

  • Purchaser points out in accordance with § 33 of the Federal Data Protection Act (BDSG) that he shall store data relating to Supplier on the basis of the Federal Data Protection Act.

(XVIII) REACH clause

  • Supplier must fulfill all specifications and measures resulting from the REACH directive for all materials, prepared materials and products supplied/provided to Purchaser.

(XIX) Declarations of origin

In the event that Supplier submits declarations of origin with regard to the goods sold, the following shall apply:

  • (1) Supplier undertakes to permit the customs authority to examine documentary evidence of origin and to provide the necessary information on this and supply any confirmations required.
  • (2) Supplier is obligated to offset the damages incurred as a result of the declared origin not being recognized by the competent authority due to a lack of documentary evidence or inability to check, unless he is not responsible for these consequences.

(XX) Force majeure

  • In the event of Acts of God, labor disputes, civil commotion, official actions and other unforeseeable, inescapable and serious events, the contracting parties shall be temporarily relieved from their obligations during the period such events continue and to the extent that their obligations are affected. This shall also apply in the event that the contracting party concerned is in default. The contracting parties undertake to provide any necessary information which may reasonably be expected without delay, and to adjust their obligations in good faith to the changed circumstances.

(XXI) Applicable version

  • Insofar as these General Terms and Conditions of Purchase are made available in another language, the German version shall take precedence.

*) These include in particular:

thyssenkrupp Materials Services GmbH (Essen), thyssenkrupp MillServices & Systems GmbH (Oberhausen), thyssenkrupp Schulte GmbH (Essen), thyssenkrupp Aerospace Germany GmbH, thyssenkrupp Materials Trading EMEA GmbH (Essen), thyssenkrupp Materials Processing Europe GmbH (Krefeld)