Conditions of Purchase

Conditions of Purchase

Updated August 2009

§ 1 Scope and conclusion of contract

1. The orders of TADANO FAUN GmbH (hereinafter referred to as Purchaser) shall exclusively be subject to the following Conditions of Purchase. These also apply to all further business relationships with the Seller, even if not stipulated expressly again. Conditions other than the pre-sent ones, especially the Seller‘s conditions of delivery, shall only apply if the Purchaser has acknowledged them explicitly in writing. Deviations from these Conditions of Purchase shall only apply if the Purchaser confirms them in writing. There are no oral col-lateral agreements.

2. Orders by the Purchaser are only binding if he places or confirms them in writing. To be valid, acceptance of orders must be in written form. Acceptance of orders shall be deemed to be legally valid for the Purchaser only if the Purchaser receives it within 10 working days after receipt of the order.

§ 2 Delivery and period of performance

1. Unless otherwise specified explicitly in writing, the deadlines and time limits specified by the Seller shall be binding. Partial deliveries are inadmissible, unless otherwise specified explicitly, too. If no delivery dates have been agreed, deliveries shall be performed im-mediately upon call-off in case of doubt.

2. If the Seller recognizes that agreed delivery dates cannot be complied with, he shall inform the Purchas-er immediately and offer another delivery date at short notice. If the new delivery date is not acceptable for the Purchaser, he/she shall be allowed to rescind the contract.

3. If an agreed delivery period cannot be complied with due to force majeure, e. g. mobilization, war, riots or other similar events like strikes or lockout, the Seller is obligated to inform the Purchaser immediately. In such case, the deadlines are extended by the duration of the obstructing event. Should the duration of the ob-structing event not be acceptable for the Purchaser, the Purchaser can rescind the contract with immediate effect.

4. Notwithstanding other legal or contractual claims, the Purchaser may request a contractual penalty of 0.1 % of the total order value per calendar day, max. how-ever 10 % of the total order value, as contractual penalty in case of culpable exceeding of the delivery period by the Seller. This also applies in case of default regarding a partial performance.

5. Delivery of the goods shall be effected in all cases - until arrival at the agreed address of receipt or delivery at the Purchaser‘s - at the Seller‘s risk, unless other-wise stipulated. § 447 BGB <German Civil Code> shall be waived. Subsequent outlay (delivery charge, cost of cartage and other costs and fees) shall be at the Seller‘s charge.

6. To the extent that this has been agreed, the Seller shall inform the Purchaser via a precise shipping ad-vice regarding every consignment in time before shipment thereof stating the order number. Demur-rage and other fees and costs which arise due to non-observance of the Purchaser‘s shipping specifications shall be borne by the Seller.

7. Agreed delivery periods shall be considered as com-plied with if the subject of the order has reached the place of delivery or the Purchaser‘s site before expiry of the delivery period according to the agreement in question.

8. Deliveries outside of the Purchaser‘s business hours (from Monday to Thursday from 07:30 to 15:00 h) shall be subject to previous agreement. Premature de-liveries shall only be possible with the Purchaser‘s consent.

9. The goods to be delivered shall be packed in a manner customary in the trade or at the Purchaser‘s re-quest in a way specified by the Purchaser. The Seller shall bear the costs of packaging and shipment. The costs of packaging shall only be borne by the Purchaser if the appropriate remuneration has been agreed explicitly. In case of returning packaging material, the packaging and shipment costs invoiced to the Purchaser shall be refunded in full.

§ 3 Special conditions of shipment

1. If the shipping costs are at the Purchaser‘s charge due to special arrangements, the Seller is obligated to provide for the most favorable mode of shipment; however, goods up to 20 kg can be dispatched freely by courier. Moreover, the Purchaser is entitled to specify forwarding agents at his/her choice to perform the transports at his/her charge.

2. The Purchaser shall be notified about the deliveries in time. Any costs due to incorrect address, inaccurate postage, deviating mode of shipment etc. are at the Seller‘s charge. This also applies to additional costs for special forms of shipment which become necessary due to a delay caused by the Seller.

3. For each parcel sent carriage forward, the post office charges a collection fee which will not on any account be borne by the Purchaser. Nor does the Purchaser bear the cartage fee at the place of receipt, as the Purchaser is self-collector picking up the consignment from the German railway operator.

4. In all accompanying documents (bill of lading, parcel voucher etc.), the order number specified by the Pur-chaser, the appropriate item number and FAUN article number must be specified.

5. At the date of shipment, the invoice and - if agreed - the shipping advice must be sent to the Purchaser under separate cover.

6. In all the other respects, the shipping specifications printed at the end of these Conditions of Purchase shall be applicable.

§ 4 Warranty

1. The Seller warrants the contractual quality and proper-ties of the consignment, especially according to the specifications of the Purchaser. Any data included in the Purchaser‘s order slipe. g. models, quantities etc. - shall be complied with by the Seller. Excess quantities or quantity shortfalls shall only be valid with the Client‘s explicit written consent.

2. All supplies and services of the Seller shall comply with the regulatory provisions, the safety regulations and the applicable accident prevention provisions.

3. The Purchaser shall examine the delivered goods immediately and, unless otherwise specified, complain in writing within 10 working days
about any obvious defects and such as are visible in case of correct examination. The Purchaser shall complain in writing about any hidden defects and such as are not visible in a correct examination within 10 working days after detection thereof.

4. In case of weight differences, the Purchaser only acknowledges the weight which has been determined by his/her check weighperson.

5. The legal periods of prescription shall apply between the parties.

§ 5 Rights to drawings and documents

1. Drawings and documents of the Seller in the agreed scope shall be surrendered to the Purchaser free of charge. In any cases, all drawings and documents which are required for correct performance of assembly, monitoring, repair, spare parts procurement and maintenance, which comprehensively describe the functioning of the object delivered and are required to obtain approvals or other permits must be surrendered free of charge. The Purchaser is entitled to utilize these drawings and documents to manufacture spare parts, for modifications etc. even by commissioned third parties. To the extent that drawings / documents are available at the Seller‘s in an electronically exploitable way, these shall be provided to the Purchaser.

2. The documents, drawings, samples, models data etc. surrendered to the Seller by the Purchaser, and the objects, materials and auxiliaries provided by the Purchaser shall remain the Purchaser‘s property and must be kept secret to the extent that they contain business secrets. Materials and documents must be used or made available to third parties only to the ex-tent that this is indispensable for performance of the order. They must be safeguarded and maintained carefully. The objects manufactured on the basis of these may only be delivered to the Purchaser. Subcontractors shall be obligated in the same way by the Seller. The Seller shall be responsible for damage resulting from non-observance of these provisions. Moreover, the Purchaser reserves all rights to the documents and objects made on the basis of his/her specifications. After having executed the order, all documents and materials, any reproductions and all other objects which have been left to the Seller by the Purchaser for the performance of the order must be returned to the Purchaser at the Seller‘s costs and risk without this being requested.

§ 6 Acceptance

1. Acceptance of the object of purchase shall be effect-ed, according to the Purchase‘s choice, in the factory of the Purchaser or of the Seller, unless otherwise agreed.

2. Final acceptance of the object in question shall be effected upon an examination of quantities and quality by the Purchaser. Inspection of quantity and quality shall be effected by the Purchaser within 10 working days after acceptance of the object in question and the Seller shall be informed at the latest upon expiry of this period of time whether the object has the contractual quality and is thus approved by the Purchaser.

3. For assessment of dimensions, quantities and the quality, quality inspection by the Purchaser and the values determined by the latter shall be decisive.

4. Payments by the Purchaser do not imply approval of the object of the contract.

§ 7 Prices and Payment

1. The prices offered by the Seller are fixed prices not including the statutory value-added tax. They are understood inclusive of insurance, transport, packaging costs, customs duties, postage and other ancillary costs franco place of shipment of the Seller. Reservations regarding prices require a special agreement.

2. Invoices shall be issued in duplicate stating the Purchaser‘s order number and shall be served on the latter separately at the date of delivery. In no case shall invoices be enclosed with the goods.

3. Payments shall be made by money transfer on principle. Without any separate written agreement, payment by the Purchaser shall be effected within 14 days after receipt of the goods or performance of the service and receipt of an auditable invoice less 3 % discount from the invoice amount, or within 30 days net.

§ 8 Third-party intellectual property rights

The Seller warrants that execution of the issued orders does not infringe on third-party intellectual property rights. The Seller releases the Purchaser from all claims which might be asserted against the Purchaser by the Seller‘s infringing on third-party intellectual property rights.

§ 9 Applicable law, legal venue, place of performance, severability

1. These Conditions of Purchase and the entire legal relationship between the Seller and the Purchaser shall be governed by the law of the Federal Republic of Germany, with the exception of conflict of laws regulations and the UN Convention on the International Sale and Purchase of Goods (CISG).

2. All disputes arising from the contractual relationship, provided the contracting party is a company, a body corporate under public law or a special fund under public law, shall be governed exclusively by the court in whose district the Purchaser has his/her registered offices. The Purchaser, however, is entitled to sue at the registered offices of the Seller.

3. The place of performance for all claims resulting from the contract, to the extent that this is legally admissible, is exclusively the Purchaser‘s registered offices.

4. In the event that any of the clauses of these Conditions of Purchase or any stipulation of any other agreement be or become invalid, this shall not affect the validity of all the other stipulations or agreements. In this case, the Seller shall replace the invalid stipulation together with the Purchaser by a valid one which is as close as possible to the economic purpose of the invalid stipulation.

Our Conditions of Purchase for download

Conditions of Purchase of TADANO FAUN GmbH, updated August 2009