Conditions of Purchase
Conditions of Purchase

Updated September 2019

§1 Area of applicability

1. The following terms and conditions of purchase apply to all orders placed by Tadano Faun GmbH (hereinafter referred to as “the purchaser”).

2. These terms and conditions of purchase also apply to all other commercial relations of Tadano Faun GmbH with the vendor, without the need for the purchaser to refer to them in each individual instance.

3. These terms and conditions of purchase apply exclusively. All terms and conditions other than the present ones, in particular, deviating, contradictory or supplementary terms and conditions of supply of the vendor, solely shall apply to the extent that the purchaser expressly has recognised these in writing. The same requirement of recognition shall apply in the event that the purchaser unconditionally fulfils its obligations despite being cognisant of deviating, contradictory or supplementary terms and conditions of purchase on the part of the vendor.

4. Individual arrangements with the vendor shall take precedence over these terms and conditions of purchase. A written agreement or, resp., our written confirmation, shall be definitive as to the substance of such arrangements, subject to proof to the contrary.

5. Oral arrangements shall not exist.

§2 Conclusion of agreements

1. An order by the purchaser shall not apply as binding until, at the earliest, when written issue or confirmation has been effected.

2. Order acceptance must be effected in writing and shall only be legally binding for the purchaser if received by the purchaser within ten working days of the issue of the relevant order.

§3 Delivery; delivery time

1. The deadlines and terms mentioned by the vendor shall be binding unless otherwise agreed in writing. Likewise, partial deliveries are not permissible unless otherwise agreed in writing. In the event that no delivery deadlines are agreed, the relevant deliveries must, in case of doubt, be effected immediately upon the processing of the request.

2. The vendor is obliged to notify the purchaser in writing without delay, in the event that circumstances arise or become apparent to the vendor, as a result of which the agreed delivery deadlines cannot be fulfilled. The vendor must then offer the purchaser a new delivery deadline at short notice. In the event that the new delivery deadline is not reasonable to the purchaser, the purchaser shall be entitled to withdraw from the relevant agreement.

3. In the event that an agreed delivery deadline cannot be fulfilled due to a force majeure, e.g., mobilisation, war, insurrection or comparable events, such as strikes or lockouts, the vendor shall be obliged to notify the purchaser of this without delay. In such cases, the relevant deadlines shall be extended for the duration of the impeding events. To the extent that the duration of the impeding event in question is not economically reasonable for the purchaser, the purchaser shall be entitled to withdraw from the relevant agreement without the need for providing a term.

4. In the event that an agreed delivery deadline is not met due to a fault on the part of the vendor, or in the event that the vendor otherwise experiences a delay in respect of the delivery deadline, it shall undertake to pay 0.1% of the total order value, but not more than 5% of the total order value for each working day that the attributable exceeding of the deadline or, resp., the relevant delay, continues. The vendor shall retain the right to furnish proof that no damage or only limited damage has been incurred.

 

5. The same shall apply in the event that the vendor experiences a delay in respect of a partial delivery. The contractual fine for a partial delivery shall be calculated based on the ratio of the value of the partial delivery to that of the entire delivery.

6. The purchaser may reserve the right to claim contractual penalties until payment in full.

7. This shall be without prejudice to further-reaching damage-compensation claims on the part of the purchaser. The contractual fine shall however be offset against such damage-compensation claims.

8. Goods shall be delivered to the location of the purchaser or to another agreed receipt address. Passing of risk shall take place upon the handing over of goods at the place of delivery. §447 (German) Civil Code / BGB is waived. All additional costs (delivery charges, carriage and other costs and charges), shall be borne by the vendor.

9. To the extent agreed, the vendor shall be obliged promptly to provide the purchaser with a detailed dispatch note, stating the relevant order number, for each shipment prior to its forwarding. All demurrage charges and other costs and charges incurred due to a failure to observe the shipping regulations of the purchaser shall be borne by the vendor.

10. Agreed delivery deadlines shall be considered fulfilled if the item ordered has, in accordance with the relevant agreement, reached either the place of delivery or the facility of the purchaser by the delivery deadline.

11. Deliveries outside the business hours of the purchaser (Monday through Thursday, 7:30 am until 3:00 pm) are subject to prior arrangement. Early deliveries may take places solely with the consent of the purchaser.

12. All goods to be shipped must be packaged appropriately and in accordance with accepted commercial practice or, at the request of the purchaser, provided with additional special packaging in accordance with its instructions. All costs of packaging and shipping shall be borne by the vendor. Packaging costs shall solely be assumed by the purchaser if remuneration for such packaging has explicitly been agreed. In the event of return shipment of packaging material, the purchaser shall be fully reimbursed for all packaging and shipping costs invoiced.

§4 Special terms and conditions of shipping

1. In the event that, due to special arrangements, shipping costs are to be borne by the purchaser, the vendor shall be obliged to employ the cheapest form of shipping; all goods up to twenty kilogrammes may however be shipped via parcel shipping, postage free. Further, for haulages at its own expense, the purchaser shall be entitled to specify hauliers of its own choice.

2. The purchaser must be notified promptly of all deliveries. Any costs due to the use of an incorrect address or incorrect franking or a deviating manner of shipping etc. shall be borne by the vendor. The same applies to additional costs for special forms of shipping necessitated by a delay caused by the vendor.

3. The postal services charge a recovery fee for each carriage forward shipment (‘receiver pays’), which the purchaser shall not assume under any circumstance. Equally, carriage at the place of receipt shall not be assumed by the purchaser, as the purchaser self-collects from the Deutsche Bahn AG.

4. The purchaser’s order number, as well as the relevant position and Tadano Faun article number must be indicated in all accompanying documents (consignment notes and the like).

5. For each shipment, the relevant invoice and, if agreed, dispatch note, must be sent to the purchaser by separate post.

6. Further, the shipping regulations as reproduced at the end of these terms and conditions of purchase shall apply.

§5 Guarantee

1. In the event of deficient performance by the vendor, the rights of the purchaser shall be determined in accordance with the relevant statutory provisions, subject to the following paragraphs.

2. The vendor guarantees delivery in accordance with the relevant agreement. The details specified on the order slip of the purchaser, e.g. those as to versions, quantities etc., are to be adhered to by the vendor. Quantities short, or in excess, of those indicated shall solely be permitted with the explicit written approval of the purchaser.

3. All deliveries and performances of the vendor must be in conformity with official regulations, the technical safety regulations in place and the current valid accident prevention regulations.

4. The purchaser’s duty of investigation shall be limited to defects which are clearly apparent through external assessment, including that of the shipping documents, during goods entry checks, as well as through random quality checks. Should defects become apparent through such assessment or checks, a complaint on the part of the purchaser shall be considered to have been lodged without delay and in good time if communicated to the supplier within three calendar days, without prejudice to the obligation to give notice of subsequently discovered defects. In such instances, a complaint on the part of the purchaser shall be considered to have been lodged without delay and in good time if it has been received by the vendor within ten calendar days of discovery of the defect.

5. In the event of differences in weight, the purchaser shall recognise solely that weight which has been ascertained by its master weigher.

6. The statutory limitation periods shall apply between the parties.

§6 Rights attaching to drawings and documents

1. Drawings and documents of the vendor are to be handed over to the purchaser in the relevant agreed amount/quantity, free of charge. In any case, all drawings and documents which are required for the correct execution of assemblies, monitorings, repairs, replacements and maintenance tasks, which comprehensively describe the function of the object delivered and which are required for the obtaining of permits and the like are to be handed over free of charge. The purchaser is entitled to utilise these drawings and documents in connection with the manufacture of replacement parts, as well as in connection with modifications and the like­, including those by mandated third parties. To the extent that such drawings or documents are in the possession of the vendor in digitally processable form, these are to be placed at the disposal of the purchaser.

2. All documents, drawings, samples, models, data etc. handed over by the purchaser to the vendor, as well as all objects, materials and technical aids provided by the purchaser, shall remain the property of the purchaser and, to the extent that they embody trade secrets, confidentiality must be observed in their regard. The relevant materials and documents may solely be utilised or made available to third parties to the extent that this is indispensable for order execution, and must be kept and maintained with the appropriate care. Objects manufactured in accordance with them may solely be supplied to the purchaser. Sub-suppliers must be bound by the vendor in the same manner. The vendor shall be liable for any damage as a result of a failure to observe these instructions. Further, the purchaser reserves all rights to documents and objects produced in accordance with the details it has provided. Following fulfilment of the relevant order, all documents and materials, as well as any reproductions or other relevant objects provided by the purchaser to the vendor for the purpose of the execution of the relevant agreement, must be shipped back to the purchaser unsolicited and without delay, at the expense and risk of the vendor.

§7 Acceptance

1.To the extent not otherwise agreed, the purchaser shall take possession of the object of purchase at the facility of the purchaser or at the facility of the vendor, as the purchaser chooses.

2. Final acceptance of the object shall be effected following execution of a quantity and quality check by the purchaser. Upon taking possession of the object, the purchaser is to execute the quantity and quality check without delay and to communicate to the vendor whether the object is as has been contractually agreed and is therefore approved by the purchaser.

3.The quality test carried out by the purchaser and the values thus ascertained shall be definitive as regards the assessment of dimensions, quantities and quality. In this regard, counter-evidence shall be incumbent upon the vendor.

§8 Prices; payment

1. All prices offered by the vendor are fixed prices, exclusive of statutory VAT. They include insurance, customs, haulage, postage and packaging costs as well as other additional expenses duty-paid free at the place of use of the vendor. Price reservations are subject to special arrangement.

2. Invoices must be issued in duplicate and specify the purchaser’s order number and must be delivered to separately the purchaser on the date of delivery. Invoices may under no circumstance accompany goods.

3. In principle, payment is to be effected via transfer. Barring special written arrangement, payment shall be effected by the purchaser within fourteen days of receipt of the relevant goods or, resp., the rendering of the relevant services, and receipt of an auditable invoice less a three per cent discount from the invoiced amount, or within thirty days without a discount.

4. Payment shall not be tantamount to recognition that the goods delivered are free of defects, are as contractually agreed or are as promised or that the delivery is complete or has been made in time.

§9 Third-party industrial property rights

The vendor guarantees that, through the execution of the orders granted, industrial property rights of third parties, e.g. patents, trademarks, utility models, industrial designs and copyrights, shall not be violated. The vendor releases the purchaser from all claims asserted in connection with the violation of industrial property rights by the vendor vis-à-vis the purchaser.

§10 Applicable law; jurisdiction; place of performance; severability clause

1. The law of the Federal Republic of Germany applies to these terms and conditions of purchase and all legal relations between the vendor and the purchaser, this to the exclusion of conflict-of-laws provisions and the UN Convention on the International Sale of Goods (CISG).

2. With regard to all disputes arising from the contractual relationship, to the extent that the contractual partner is an entrepreneur or legal person under public law or a special fund under public law, exclusively that court shall have competent jurisdiction in whose district the purchaser has its registered office.

3. To the extent permitted by statute, the place of performance for all claims arising from the relevant agreement is exclusively the registered office of the purchaser.

Should a provision of these terms and conditions of purchase, or a provision in the context of other agreements, be or become ineffective, this shall not influence the effectiveness of any other provisions or agreements. In such an instance, the vendor shall, together with the purchaser, replace the ineffective provision with an effective one which most closely approximates the economic purpose of the ineffective prov

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