General Terms and Conditions
Appendix attached to the ORGALIME GENERAL CONDITIONS S 2012
regarding the application of German law
Where the Contract is governed by German Law (cf. clause 47 of the ORGALIME Conditions), the present Amendment shall apply jointly with the ORGALIME Conditions in order to pay due regard to the provisions of the German Civil Code BGB concerning standard business conditions. Note: The “Convention on Contracts for the International Sale of Goods” - usually named as Vienna Convention of April 11th 1980 - might be applied to the Contract. If this is not the intention of the Parties, a stipulation to the contrary will have to be expressly mentioned and agreed upon.
“All other claims against the Supplier based on such delay shall be excluded, except where the Supplier has been guilty of a negligent breach of
a fundamental condition of the contract (“wesentliche Vertragspflichten”), intent or Gross Negligence according to Clause 2.”
“Save as stipulated in Clauses 23-38, the Supplier shall not be liable for defects. This applies to any loss the defect may cause including loss of production, loss of profit and other indirect loss. This limitation of the Supplier’s liability shall not apply if he has been guilty of intent or Gross Negligence as defined in Clause 2 or if the Supplier negligently causes damage to life, body or health.
Furthermore, the limitation of liability shall not apply in cases of negligent breach of a fundamental condition of the contract (“wesentliche Vertragspflichten”). In the case of slight negligence the Supplier shall be liable only for reasonably foreseeable damage which is intrinsic to the contract.
Nor shall the said limitation of liability apply in the cases of strict liability under the Product Liability Act (“Produkthaftungsgesetz”), for defects of the Product causing death or personal injury, or damage to items of property used privately. Furthermore, the said limitation of liability shall not apply in the case of defects the Supplier has fraudulently concealed or whose absence he has guaranteed.”
“The said exclusion of liability shall not apply in the case of intent or Gross Negligence under Clause 2 or if the Supplier negligently causes damage to life, body or health. Furthermore, the exclusion of liability shall not apply in cases of negligent breach of a fundamental condition of the contract (“wesentliche Vertragspflichten”). In the case of a slightly negligent breach of a fundamental condition of the contract, the Supplier shall be liable only for reasonably foreseeable damage which is intrinsic to the contract.
Nor shall the exclusion of liability apply in cases of strict liability under the Product Liability Act (“Produkthaftungsgesetz”), for defects of the Product causing death or personal injury, or damage to items of property used privately. Neither does the said exclusion apply in the case of damage attributable to fraudulent concealment or under a specific guarantee granted.”
1 Scope of Application
These Terms and Conditions of Purchase shall apply to any purchase and delivery contracts concluded with DESCH Antriebstechnik GmbH & Co. KG and/or DESCH Global Services GmbH (hereinafter referred to as “the Principal"). Any delivery, service and offer by Contractors shall be effected exclusively on the basis of these General Terms and Conditions of Purchase. These are an integral part of all contracts concluded by the Principal with its Contractors for any delivery or services offered by them. They also apply to any future delivery, service or offer to the Principal, even if not agreed again in the individual case. Terms and conditions of Contractors or a third party do not apply; even where the Principal refers to such letter, this cannot be construed to constitute acceptance of those terms and conditions. Any agreements, amendments or collateral agreements shall only be valid if made in writing or at least electronically (hereinafter “Text Form”). Any waiver of the above formal requirement must also be in Text Form.
1 Delivery contracts (orders and acceptance) and calls, and also any changes or amendments thereto, must be made in Text Form.
2 The Contractor must refuse or accept orders without undue delay. Calls shall become binding if the Contractor does not oppose the call within two (2) weeks following receipt of
3 The Principal may demand that design and/or implementation changes of the goods be made to the extent that this is reasonably acceptable for the Contractor. The Parties
must mutually agree on how to accommodate the impact, especially with respect to additional costs or reduction of costs and on delivery dates.
4 Cost estimates or offers of any kind are binding and not to be remunerated.
5 All delivery documents must contain the purchase order number, job number, place of receipt, ID number, complete article description, quantities & units of measure and
VAT ID number (for imports from the EU).
3 Prices & Delivery
1 The price shown in the order is a fixed price. It includes everything the Contractor must achieve to fulfil its duties. Price changes are subject to the Principal’s express consent.
2 The Contractor must implement the orders placed by the Principal based on DAP, Arnsberg, Incoterms 2010.
The Contractor must take back packaging at its own expense if so requested by the Principal.
3 The receipt of the transfer order by the Bank shall be sufficient to establish the timeliness of payments owed by the Principal. In the event of default of payment, the Principal
must pay interest for arrears of no more than five (5) percentage points above the base rate pursuant to § 247 the German Civil Code BGB.
4 Scope of performance
1 The scope of performance includes, among other things:
- The Contractor must transfer to the Principal the title pertaining to any technical documents (also for subcontractors) and other documents required for production from scratch, maintenance and operation. This technical documentation must be in German and prepared in accordance with the SI international system of units;
- The Contractor must transfer any rights of use which are necessary for the use of deliveries and services by the Principal or a third party, taking into account any patents, supplementary protection certificates, trademarks, utility models;
- The Principal has the unrestricted right to carry out repairs and modifications to the performance received or to have them carried out by a third party, and also to manufacture spare parts itself or to have them manufactured by a third party.
2 Should there be a deviation from the agreed scope of performance, the Contractor has a right to demand extra payments or make changes to deadlines only if a
supplementary agreement to this effect is made at least in Text Form prior to such deviation being carried out.
3 The quantities ordered are binding. In the event of excess deliveries, the Principal may reject these at the expense of the Contractor.
5 Quality and documentation
1 The Contractor must set up and maintain a documented quality assurance system that is suitable in type and scope and corresponds with the latest state of the art.
It must prepare records, in particular of its quality tests, and make them available to the Principal on request.
2 If the type and scope of the test as well as the test equipment and methods have not been specifically agreed between the Contractor and the Principal, the Principal agrees
to discuss the tests with the Contractor at the latter's request and within the scope of its knowledge, experience and possibilities in order to determine the required state of the
art in test technology.
3 The Contractor agrees to allow quality audits to assess the effectiveness of its quality assurance system through the Principal or any person appointed by the Principal.
4 Quality documents owed are delivered free of charge. An order is not completed until the documents have been delivered.
Invoices will only be settled after complete fulfilment.
5 The Contractor must take all measures to ensure supply chain reliability in production, storage, loading and transport. This includes in particular business premises security,
the protection of goods against unauthorized access and the use of secure personnel.
6 Delivery Dates
1 The dates confirmed by the Contractor are binding. Delivery dates or delivery periods shall apply as of the receipt of the goods, including any required documents, in our works.
2 The Principal reserves the right to return goods delivered ahead of schedule. The Contractor shall pay any additional expenses incurred as a result.
7 Default in Delivery
1 The Contractor is obliged to compensate the Principal for loss or damage caused by delay.
2 The compensation is determined by the default in delivery. For each week commenced, the compensation shall be 1% of the order value, unless otherwise agreed.
The Contractor has the right to prove that no damage or significantly lower damage has occurred.
3 The Principal reserves the right to prove that the damage incurred was higher.
4 Accepting delayed deliveries or services without reservation does not preclude our right to indemnification based on delayed delivery or services.
8 Delivery to premises and storage
1 Delivery by the Contractor must be made to the place of receipt specified by the Principal in the order. Unless otherwise agreed, this is the seat of the Principal (address).
2 Where delivery of goods has been agreed, the risk shall not pass to the Principal until the goods are handed over to the Principal at the agreed destination in accordance
with Incoterms DAP, Incoterms 2010.
3 If an FCA price has been agreed, the Principal only pays the freight cost rates applied by its own freight forwarder.
4 The delivery addresses given must be observed. Delivery to a place of receipt other than the place designated by the Principal does not trigger a transfer of risk for the
Contractor even if such post takes delivery of the shipment. The Contractor must bear the additional costs incurred by the Principal as a result of a delivery to a place of receipt
other than the agreed place.
5 Partial shipments must be clearly identified as such and delivery notes have to be supplied without further copies.
6 If the Contractor may demand that packaging necessary for the delivery be returned, the delivery documents must be marked clearly accordingly. If packaging is not marked,
the Principal will dispose of it at the expense of the Contractor; in this case, the Contractor's claim to have packaging returned will lapse.
7 The storage of objects required for the provision of services on the premises of the Principal is limited to specifically allocated storage areas. The Contractor shall bear full
responsibility and risk for these objects until the risk passes.
8 In transit, the statutory provisions, in particular the provisions of the German law on the transport of hazardous goods (GGBefG) and the applicable regulations on hazardous
goods, including the respective annexes and appendices, must be observed.
9 For shipments by rail, the declaration of the goods in the consignment notes must comply with the then applicable railway rules.
Costs, loss or damage incurred through incorrect or missing declarations are incumbent on the Contractor.
10 The provider of the performance must have the receipt of shipments confirmed in Text Form by the named place of receipt.
The Contractor is not entitled to transfer the execution of the contract or its rights under the contract, be it in whole or in part, to a third party without the prior written consent of the Principal. Subsuppliers of the Contractor must be identified upon request of the Principal.
10 Invoicing, payment, offsetting
1 The Principal observes a payment term of 14 days with a 3% discount or 30 days net as of the date of receipt of invoice or equivalent payment statement.
2 The Contractor may set off claims against the Principal only if undisputed or undisputable.
3 The Principal is entitled to offset claims the Contractor has against the Principal against all claims the Principal has against the Contractor.
11 Claims based on liability for defects
1 The Contractor assumes responsibility that its delivery/service is free from defects and/or in good order, in particular, in the case of delivery of goods, that the objects of the
purchase are free from defects within the meaning of § 434 BGB.
2 The limitation period for claims based on defects starts when the entire scope of supplies and/or services is provided or, if acceptance has been agreed, upon acceptance.
3 Claims for defects are subject to the statutory limitation periods. For repaired or replaced parts, the limitation period extends to a maximum of 36 months. For defects notified
within the limitation period, the period ends at the earliest six months following notification of the defect. The Contractor waives its right to claim that the defect was notified
too late (§§377, 381, para. 2 German Commercial Code HGB) in the case of defects other than obvious defects. Deviations in quality and quantity shall be deemed to have
been notified in good time/without undue delay within the meaning of § 377 HGB if communicated to the Contractor within eight (8) working days of receipt of the goods by
the Principal. Hidden defects are deemed to have been notified in good time in any event if the notification is made to the Contractor within eight (8) working days following
4 Any defect notified within the limitation period must be remedied by the Contractor without delay, so that no costs are incurred by the Principal.
The Contractor bears the costs of remedying the defect or replacement delivery, including any ancillary costs (e.g. freight costs).
Should the Contractor not proceed with the removal of defects without undue delay, should it fail to provide performance in accordance with the contract,
or should an urgent case arise, the Principal shall be entitled to carry out the necessary measures at the expense of the Contractor.
5 The statutory provisions on warranty remain unaffected.
12 Place of Performance, place of jurisdiction
The place of performance for supplies and services is the place of receipt named by the Principal.
2 The place of jurisdiction is the registered seat of the Principal or, at the Principal's option, the general place of jurisdiction for the Contractor.
13 Applicable law
Any legal relationship between the Principal and the Supplier shall be governed by the law of the Federal Republic of Germany, excluding the Act on the Vienna Convention (CISG) of 11 April 1980, as amended.
14 Prohibition of advertising
The use of inquiries, orders and the associated correspondence of the Principal for advertising purposes requires the express and written consent of the Principal.
15 Partial invalidity
Should individual provisions of the present Terms and Conditions be fully or partially invalid, this shall not affect the validity of the remainder of these Terms and Conditions.
16 Product liability
The Contractor shall be responsible for any claims asserted by a third party for death, personal injury or damage to property resulting from a defective product it delivered and shall be obliged to indemnify the Principal for such liability incurred, unless the Principal has contributed significantly to the cause of the damage (e.g. gross negligence, obvious defects in the part delivered). In the latter case, the damage shall be allocated internally as provided for by law. The Contractor is obliged to maintain product liability insurance cover at its own expense. The Contractor shall send the Principal a copy of the liability policy at any time if so requested.
Any business or technological information made accessible by the Principal (including, but not limited to features inherent to items, documentation or software provided and other knowledge or know-how) shall, to the extent that and for as long as it is not publicly known, be kept secret from a third party and shall be disclosed in the Contractor's own works only to the persons strictly necessary to use the information for the purpose of the delivery/service and also subject to the same secrecy obligation; the information shall remain the Principal’s exclusive property. Other than for the purpose of deliveries/services to DESCH Antriebstechnik GmbH & Co. KG, copying or commercial exploitation of any such information shall require the Principal’s prior written consent. Upon request, any information emanating from the Principal (including any copies and/or notes made) and items let on loan shall be returned to the Principal or destroyed in their entirety and without undue delay.
The Principal reserves all rights pertaining to any such information (including copyrights, and the right to apply for a patent or utility model, etc.). To the extent that they have been granted to the Principal by a third party, this reservation shall also apply in favour of such third party.
Products manufactured according to information, e.g. drawings, models, formes, dies and similar, made by the Principal or with the help of its confidential information or with our tools or other rebuilt tools may neither be used by the Contractor itself nor offered or supplied to a third party. The same applies mutatis mutandis to our print jobs. Subcontractors must be placed under a similar obligation.
18 Intellectual Property Rights (IPR)
1 Within the scope of para 2 below, the Contractor is responsible that its products supplied do not infringe on IPR of a third party in any state of the European Union or other
country where it manufactures its products or has them manufactured.
2 The Contractor is under the obligation to hold the Principal harmless from any claims asserted by a third party against the Principal due to any infringement of IPR referred
to in paragraph 1 above and reimburse the Principal for any necessary expenditure incurred in connection with such a claim.
This claim does not apply insofar as the Contractor can prove that it is neither responsible for the infringement of the IPR nor should have recognised it at the time
of delivery whilst exercising reasonable commercial care.
3 Further legal claims of the Principal based on defects of title shall remain unaffected.
19 Export Control
1 The Contractor is obliged to inform the Principal in Text Form as soon as possible before the delivery date about any licensing requirements for its goods in accordance with
the respectively applicable German, European (EU), US-American export, customs and foreign trade law as well as the export, customs and foreign trade law of the country of
origin of its goods. For this purpose, the Contractor must provide the following information and data:
2 The export list number according to Annex AL to the German Foreign Trade and Payments Ordinance or comparable list items of relevant export lists; the
"Export Control Classification Number" according to the "U.S. Commerce Control List" (ECCN), if the goods are subject to the "U.S. Export Administration Regulations" (EAR):
the statistical goods number (HS/KN code); the country of origin (trade policy/non-preferential origin), key for origin identification: D = Third country/ E = EU / F = EFTA;
(Long-term) Contractor declarations of preferential origin (for EU Contractors) or certificates of preference (for non-EU Contractors);
3 All other information and data required by the Principal for export and import and, in the case of resale, for re-export of the goods.
The Contractor is obliged to inform the Principal without undue delay about all changes of the above information and data in Text Form.
4 Should the Contractor violate its obligations under paragraph 1 above, it shall bear any expenses and damage as well as other loss
(e.g. additional claims for foreign import duties,fines), which the Principal incurs as a result thereof. This does not apply if the Contractor is not responsible for the failure.
as of: March 2020: