GTC – Conditions of Purchase

General Conditions of Purchase
of the GfE companies

1. Preface/Applicability

1.1. The below Conditions of Purchase apply to the following companies of the GfE Group:  GfE Gesellschaft für Elektrometallurgie mbH, GfE Metalle und Materialien GmbH, and GfE Fremat GmbH ("Principal"). 

1.2. The following Conditions of Purchase are the basis for all deliveries and services between the contracting parties, hereinafter referred to as the Principal (GfE) and the Contractor. The Contractor acknowledges these conditions of the Principal as binding. Conflicting conditions of the Contractor are not recognized by the Principal. 

1.3. The unconditional fulfillment of the contract, and in particular the unconditional acceptance of the performance by the Principal, does not constitute consent to conflicting terms and conditions of the Contractor. 

1.4. Agreements that deviate from these conditions must be mutually agreed upon in writing between the parties to become legally effective. Oral agreements before or at conclusion of the contract shall only be binding if confirmed in writing. 

2. Quote/Order/Order Confirmation 

2.1. The Contractor is bound to their quote for four weeks. 

2.2. Quotes and cost estimates shall be submitted free of charge.  

2.3. All orders, amendments, and changes must be made in writing to become effective. Any order placed by telephone or otherwise shall require subsequent written confirmation of legal validity by written order of the Principal or written order confirmation of the Contractor.  

2.4. The Contractor must confirm the order in writing. Until receipt of the order confirmation, the Principal may revoke the order at any time. Changes and amendments made to an order of the Principal in an order confirmation of the Contractor shall be deemed non-existent unless they are confirmed in writing by the Principal within 1 week of receipt of the order confirmation.  

2.5. The delivery dates specified in the Principal's order shall be deemed to have been firmly agreed upon for individual orders, call-off or framework agreements, or in the case of permanent business relations between the Principal and the Contractor (firm deal).  

2.6. The Principal can demand changes to the goods even after conclusion of the contract, insofar as this is reasonable for the Contractor. Effects on delivery dates as well as additional or reduced costs shall be reasonably considered by both parties to the contract. The Principal may demand excess or short deliveries/services of up to 5% of the order value at the agreed contractual conditions without this affecting the unit price.

3. Prices and Terms of Payment 

3.1. The price specified in the order shall be binding. Unless otherwise agreed upon in writing, the price shall be including "DDP (Incoterms 2010)" to the receiving address specified by the Principal. The return of the packaging requires a separate agreement.
  
3.2. The order prices are net prices. The value added tax (VAT) valid at the time of performance must be shown separately on the invoice. The prices shall include appropriate packaging (in accordance with item 9.), the provision of standard test certificates, instructions for use, assembly and maintenance, as well as repair instructions and spare parts lists. 

4. Invoices 

4.1. Unless otherwise agreed, all invoices shall be sent in duplicate (original and copy) to the address of GFE specified in the order. 

4.2. The invoices must contain the following data:

  • Full name and address of the Contractor and the Principal
  • Tax number or VAT identification number
  • Invoice date of issue
  • Consecutive invoice number
  • Quantity and customary designation of the delivered goods or the type and scope of other services
  • Date of delivery or date of provision of other services
  • Supplier number
  • Order number
  • Article number
  • EAN Number (European Article Number)
  • Bill of sale number

If any of the required data are missing, the Principal shall not be responsible for any delay in payment caused thereby. The same shall also apply if the invoice items do not correspond to the order. 

5. Payment 

5.1. Unless otherwise agreed, the following terms of payment shall apply at the discretion of the Principal:

  • within 30 days less 3% discount
  • within 90 days net (without deduction)

5.2. The payment period commences upon receipt of the goods/services, the required documents, and the invoice, but at the earliest on the agreed upon delivery date.  

5.3. The Principal is entitled to offset counterclaims without restriction or to assert statutory rights of retention.  

5.4. Partial deliveries/services will only be invoiced separately if this has been contractually agreed. This shall also apply to partial payments. 

6. Assignment of Claims 

Claims against the Principal can only be assigned to third parties with the Principal's written consent. Offsetting against claims of the Principal is generally excluded, unless the claims of the Contractor are undisputed, acknowledged, or legally established. The same applies to the Contractor's rights of retention. 

7. Delivery Dates/Late Deliveries 

7.1. The agreed delivery/performance periods are binding. Their observance is the Contractor's main contractual obligation. The Principal must be notified of delays in delivery or performance without delay. In the event of a delay in performance, the Principal is entitled to the statutory claims without limitation.  

7.2. In the event of late deliveries for reasons for which the Contractor is responsible, the Principal also reserves the right to charge a contractual penalty of 0.5% of the gross purchase price per commenced week of delay for deliveries/services that have not taken place or have been delayed, but no more than 10% of the corresponding gross purchase price. If the delivery takes place before the agreed upon delivery date, the Principal reserves the right to charge 2% of the order value (of the delivered partial quantity) due to increased storage costs. 

7.3. In the event of withdrawal from the contract due to a delay in delivery, the Principal may return already received partial deliveries or deliveries made after the withdrawal at the expense and risk of the Contractor. However, the Principal may also accept already received partial deliveries and declare withdrawal only for the outstanding deliveries. 

7.4. If the Contractor does not deliver or perform within a reasonable period of time determined by the Principal for supplementary performance, the Principal is entitled to commission a third party to perform the contract and to demand reimbursement of the expenses and additional costs from the Contractor after the expiry of such period. In addition, the Principal shall be entitled to compensation for damages instead of performance. The Contractor's right to supplementary performance and the Principal's obligation to accept the performance shall be excluded as soon as the Principal procures replacement after expiration of the deadline by way of self-execution or demands compensation instead of performance. 

8. Delivery/Shipping Note/Freight documents 

8.1. The Contractor must perform the service themselves and may not assign the order to third parties without the Principal's consent. All deliveries of goods shall include shipping notes with the Principal's order information and the Contractor's name. Shipping notes, freight documents, and test certificates must be identifiable as such and must be included in the delivery of the goods. If the aforementioned information is not clearly present on the shipping note, freight documents, and test certificates, the Principal reserves the right to refuse acceptance.  

8.2. Partial deliveries/services are only permitted with the Principal's consent. If the Principal agrees to partial deliveries/services, they shall be entitled to declare acceptance only after complete fulfillment of the delivery/service by the Contractor.  

8.3. Deliveries shall be made DDP (Incoterms 2010) to the receiving address specified by the Principal. The costs of transport insurance shall not be covered. In all other respects, the transfer of risk of work performances shall be governed exclusively by § 644 (1), paras 1 and 2 of the German Civil Code (BGB). 

9. Packaging and Shipping Instructions 

9.1. The following shipping instructions must be observed:

  • Individual packaging or accounting unit as agreed. All articles or their individual packaging are to be provided by the Contractor with the usual consumer EAN code free of charge, as far as this is technically possible with consideration of the properties of the goods.
  • Shipping box packaging as agreed. The shipping boxes must be labeled with the following on at least one side: Article description, contents (piece, set), EAN code. Manufacturer names or other designations indicating the manufacturer and indications of origin shall be avoided on the shipping box.
  • The goods are palletized exclusively on pallets (Euro or one-way pallets). The goods must not protrude laterally. The maximum gross height of a pallet may not exceed 220 cm. Any change to these shipping instructions after placement of the order requires the written notice and consent of the contracting parties. If requested separately by the Principal, a pallet frame shall be fitted to the lower part of the units to protect them against collision.

9.2. The Principal may deny acceptance of the delivery or demand repackaging or subsequent labeling (e.g., EAN code) in the event of non-observance of or non-compliance with the aforementioned shipping instructions. The resulting costs shall be borne by the Contractor. This shall apply to any expenses incurred by the Principal due to incorrect delivery. Furthermore, the Principal may charge a flat handling fee of EUR 150.00.  

9.3. The Contractor shall be generally liable for damage in transit caused by inadequate packaging (inner and outer packaging). 

9.4. Furthermore, conformity with the Packaging Directive 94/62/EC must be guaranteed. 

10. Product Condition/Origin/Safety

10.1. The Contractor warrants that the deliveries comply with the provisions of Regulation (EC) No. 1907/2006 on the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH Regulation) as amended. To the extent required by the provisions of the REACH Regulation, the substances contained in the Contractor's products are pre-registered or registered after expiry of the transition periods. The Contractor shall provide safety data sheets in accordance with the REACH Regulation or the information required pursuant to Article 32 of the REACH Regulation. Upon request, the Contractor shall also provide the information pursuant to Article 33 of the REACH Regulation.  
The Contractor further warrants that they will not deliver any products that contain

  • prohibited substances according to Annex XVII of the REACH Regulation as amended;
  • substances of the Global Automotive Declarable Substance List (GADSL) as amended (at www.gadsl.org);
  • substances according to RoHS (2011/65/EC) for products according to their scope of application;
  • substances according to Directive 76/769/EEC as amended.

In the event the delivered goods contain substances listed on the so-called "Candidate List of Substances of Very High Concern" ("SVHC List") pursuant to the REACH Regulation, the Contractor is obligated to inform us immediately. This shall also apply if substances not previously listed are included in this list for current deliveries. The current list can be viewed at 
echa.europa.eu/chem_data/authorisation_process/candidate_list_table_en.asp.
Furthermore, the products must not contain mercury, asbestos, or radioactive material.
If these substances are contained in the products delivered to the Principal, the Principal must be informed of this in writing prior to delivery, and the substance as well as the identification number (e.g. CAS) and a current safety data sheet of the product to be delivered must be included in this written notice. The delivery of these products requires a separate approval by the Principal.
Furthermore, conformity with the DMF Decision 2009/251/EC must be guaranteed. 
The Contractor is obligated to indemnify the Principal against any liability in connection with the Contractor's non-compliance with the above-mentioned regulations or to compensate the Principal for damages incurred by the Principal as a result of or in connection with the Contractor's non-compliance with the regulations. 

10.2. The Contractor warrants that the delivered products or individual product components do not originate from conflict regions in the Democratic Republic of Congo or neighboring countries.  In particular, such product components include gold, coltan, cassiterite, wolframite, and their derivatives such as tantalum, tin, or tungsten (Dodd-Frank Act – Section 1502). 

10.3. In the event of planned changes to production processes, supplier parts, or materials for the agreed delivery items, in the event of relocations of production sites, changes to processes or equipment for testing the delivery items, or other measures that may affect the safety and/or quality of the delivery items, the Contractor must notify the Principal well ahead of delivery. Any changes to specifications and manufacturing processes defined in writing require the Principal's approval. All changes, regardless of whether they require approval or not, must be documented and disclosed upon request. 

11. Transfer of Risk 

11.1. The risk of accidental loss or deterioration of the delivery/service shall pass to the Principal upon delivery/acceptance.  

11.2. The Contractor shall bear the risk up to the place of performance or up to the place of receipt specified by the Principal and the acceptance agreed there. 

12. Acceptance 

12.1 The Principal shall formally accept the services and work performances by issuing an acceptance certificate after complete performance by the Contractor.  

12.2. The Contractor must notify the Customer in writing that performance is complete. Upon receipt of the notice of readiness, the Principal is entitled to inspect the work for a reasonable period of time, but at least within 14 days. Acceptance shall be declared provided that this inspection does not reveal any defects in the service that more than insignificantly impair the suitability of the service for the contractually intended use.  

12.3. Even if acceptance has been declared, the Contractor must remove all defects found during the inspection and/or recorded in the acceptance certificate immediately after acceptance. 

13. Notices of Defects 

13.1. The Principal shall notify the Contractor immediately of any obvious defects in the delivery or service as soon as they are discovered in the ordinary course of business. For defects reported by the Principal within two weeks, the Contractor waives the objection of delayed notice of defects. 

13.2. If a defect is only discovered during processing or use, notices of defects must be submitted within two weeks of such discovery. The Principal is not obliged to carry out any further inspections or notifications. 

13.3. Any notice of defects shall delay the running of the statute of limitations. 

14. Warranty 

14.1. The Contractor undertakes to deliver the goods that correspond in workmanship and quality to the quote, the quote or order samples available to the Principal, and the written agreements concluded (e.g., a purchase specification and/or a requirement specification). The Contractor warrants that the goods comply with the state of the art and all relevant legal guidelines and provisions. This includes in particular all special regulations (e.g., TÜV/GS, CE, DLMBG, VDE, TKG) as well as the standards valid in the European Union. The aforementioned warranties also apply to goods of foreign origin.  

14.2. For a period of 24 months from delivery/acceptance, the Contractor warrants that all deliveries/services are free from defects. Within the scope of this warranty, the freedom from defects is to be restored without costs for the Principal at the Principal's choice by subsequent improvement or replacement, with the exception of parts subject to wear and tear. If the defects cannot be remediated within two working days, a replacement shall be provided free of charge until the rectification of the defects is completed. If the delivery or service leads to another notice of defects despite an attempt at supplementary performance or if the Contractor refuses supplementary performance, the Principal is entitled without restriction to reduce the price or to withdraw from the contract as well as to substitute performance. The Principal does not have to accept any further attempts at supplementary performance. In addition, the Principal is entitled to assert a claim for damages to the extent permitted by law.  

14.3. In the event of onward delivery of the delivery item by the Principal, the warranty period shall not commence until the time of onward delivery to the end customer. This extends the warranty period to a maximum of 36 months from delivery to the Principal. 

15. Samples 

If requested separately by the Principal, a reasonable number of original samples (with corresponding individual packaging and test certificate) shall be made available free of charge for new articles or initial orders no later than at the time of the placing of the order. Samples requested by the Principal must also be made available free of charge for further testing purposes. 

16. Product Liability/Indemnification/Liability Insurance 

16.1. To the extent to which the Contractor is responsible for product damage, they shall be obligated to indemnify the Principal upon first request against claims for damages asserted by third parties to the extent that the cause lies within their sphere of control and organization and the Contractor is liable to the Principal.  

16.2. Within this framework, the Contractor is also obligated to reimburse any expenses pursuant to §§ 683, 670 BGB (German Civil Code) incurred as a result of or in connection with a recall action carried out by the Principal. As far as possible and reasonable, the Contractor shall be notified of the content and scope of the recall measures to be carried out and be given the opportunity to comment.  

16.3. The Contractor undertakes to maintain product liability insurance with a coverage of at least EUR 5,000,000 per personal injury/property damage (lump sum). If the Principal is entitled to further compensations for damages, these shall remain unaffected. 

17. Property Rights

17.1. The Contractor guarantees that no rights of third parties are infringed in connection with their delivery/service.  

17.2. If a third party asserts a claim against the Principal for this reason, the Contractor is obligated to indemnify the Principal against these claims upon first written request. The Principal is not entitled to enter into any agreements with the third party without the consent of the Contractor, in particular to conclude a settlement.  

17.3. The Contractor's obligation to indemnify shall apply to all expenses necessarily incurred by the Principal as a result of or in connection with claims asserted by a third party. 

18. Title Retention 

18.1. All deliveries/services to the Principal must be free of retentions of title. If the order confirmation or the invoice contains such title retentions regardless, they shall be void even if the Principal does not object. The acceptance of an order by the Contractor shall be deemed acceptance that the goods to be delivered are their property. 

18.2. Upon acceptance, the Principal shall acquire unrestricted ownership of the delivery item.

19. Provision of Tools, Material, Documents

19.1. Tools provided by the Principal shall remain his property. The Contractor is obligated to use the tools exclusively for the manufacture of the goods ordered by the Principal. The Contractor is obligated to ensure at their own expense the tools belonging to the Principal at replacement value against fire, water, and theft. The Contractor shall be obligated to perform any necessary maintenance and inspection work at their own expense and in good time. The Contractor must immediately notify the Principal of any incidents.

19.2. Materials or other documents and information the Principal provides the Contractor for their orders shall in any case remain the property of the Principal and shall be labeled as such.

19.3. If provided materials are processed, transformed, combined, or mixed with other items, the Principal shall acquire sole ownership of the new item. The Contractor shall keep the new item in safe custody for the Principal free of charge.

20. Confidentiality

The Contractor is obligated to keep all received illustrations, drawings, calculations, and other documents and information strictly confidential. They may only be disclosed to third parties with the Principal's express consent. The obligation to maintain confidentiality shall also apply after completion of the respective contract. It shall expire if and insofar as the manufacturing knowledge contained in the illustrations, drawings, calculations, and other documents provided has become generally known. All parts and documents shall be returned to the Principal with no request being required after the order has been processed.

21. Customs/Export Control

The following information must be included in all delivery and commercial documents:

  • Customs tariff number of country of dispatch
  • Country of origin
  • Information as to whether product or delivery item has preferential origin or not; if yes, transmission of the corresponding long-term supplier declaration is necessary
  • Information as to whether product or delivery item is covered by the export list or EC Dual Use Regulation; if yes, notification of the list number is necessary
  • Information as to whether product or delivery item is additionally subject to US export control regulations; if yes, indication of the ECCN is required.

22. Termination

The Principal is entitled to terminate the contract if the Contractor is assigned current assets by way of security, if unfavorable information is available from banks, credit institutions, or credit insurers, if judicial insolvency proceedings are instituted against the assets of the Contractor, or if the Contractor ceases payments.

23. Force Majeure

Interruptions in production due to events beyond the Contractor's control (force majeure) entitle the Principal to withdraw from orders. In the event of obstacles to acceptance beyond the Principal's control, the deadlines of delivery and payment shall be extended taking into account the duration of the delay.

24. Place of Performance, Place of Jurisdiction, Governing Law 

24.1. Place of performance for deliveries and services shall be the place of receipt designated by the Principal.

24.2. The exclusive place of jurisdiction for all disputes shall be the Principal's place of business. This shall not affect the Principal's right to sue the Contractor at their place of business.

24.3. The law of the Federal Republic of Germany shall apply exclusively. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. The same shall apply to references under German law to other legal systems.

25. Severability 

If any provision of these Conditions of Purchase or a provision within the framework of other agreements be or become invalid, the validity of all other provisions or agreements shall remain unaffected.

NB: The Principal would like to point out that they store and process data of the Contractor in accordance with the Federal Data Protection Act.


Version: October 1, 2014/Copyright GfE

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