 | General Terms and Conditions of Business of the Emitec companies in Germany
 Conditions of Purchase Conditions of Delivery and Payment
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Applicable to transactions with enterprises, legal entities
underpublic law and special funds under public law
1 General
1.1 Our Conditions of Purchase are applicable exclusively.We do not recognise any of Supplier's generalterms and conditions of business that conflict with, ordeviate from, our Conditions of Purchase, unless weexpressly consent to their validity in writing. OurConditions of Purchase shall also apply even if weaccept or pay for deliveries of products and servicesfrom the supplier (hereinafter referred to as "subjectof the contract") in full knowledge of the fact thatSupplier's conditions differ or deviate from our Conditionsof Purchase.
1.2 Our Conditions of Purchase shall also apply to all futuredealings with Supplier.
2 Contract conclusion and amendments
2.1 Purchase orders, contracts and calls for delivery, aswell as amendments and supplements thereto, shallonly be valid if made in writing. Purchase orders andcalls for delivery can also be placed by remote datatransmission or fax.
2.2 Verbal agreements made prior to, or at the time ofconclusion of the contract shall only be valid if confirmedin writing by the Purchasing Department. Thisshall not affect Clause 2.1, Sentence 2.
2.3 Verbal agreements made after conclusion of a contract,particularly subsequent amendments and supplementsto our Conditions of Purchase - includingthis stipulation requiring written form - and collateralagreements of any kind, shall likewise only be valid ifconfirmed in writing by the Purchasing Department.
2.4 Cost estimates are binding and free of charge,unless expressly agreed otherwise.
2.5 If Supplier does not accept a purchase order within 2weeks of receipt, we shall be entitled to cancel. Callsfor delivery become binding if Supplier does not objectto them within 5 working days of receipt.
3 Delivery
3.1 Deviations from our contracts and purchase ordersshall only be permitted with our prior written consent.
3.2 Agreed dates and deadlines are binding. The decisivefactor for compliance with the delivery date ordelivery deadline is the receipt of the goods on ourpremises. If "carriage paid" delivery (DDU or DDP asper Incoterms 2000) has not been agreed, Supplieris to provide the goods on time, taking into accountthe time required for handling and shipping to be coordinatedwith the freight carrier.
3.3 If Supplier has assumed responsibility for set-up orassembly, and unless otherwise agreed, then Suppliershall, subject to deviating regulations, bear allnecessary additional costs, such as travel costs,provision of tools and separation allowances.
3.4 If agreed dates are not observed, then the statutoryregulations shall apply. If Supplier foresees difficultywith regard to manufacturing, primary material supplies,compliance with the delivery date or similar circumstanceswhich may hinder him in making atimely delivery or delivery in the agreed quality, thenSupplier shall immediately notify our Purchasing Departmentin writing.
3.5 The unconditional acceptance of a delayed deliveryor service shall not indicate the waiving of any compensationclaims to which we may be entitled due tothe delay in the delivery or service; this shall applyup to complete payment of the amount owed by usfor the delivery or service in question.
3.6 Part deliveries are generally impermissible, unlesswe expressly agreed to them or they can be consideredreasonable.
3.7 With regard to quantities, weights and dimensions,the values determined by us during receiving inspectionshall be decisive, subject to other documentaryevidence.
3.8 In addition to the right to use the software and associateddocumentation included in the scope of productdelivery to the legally permissible extent(Arts. 69 a ff. German Copyright Act), we shall alsohave the right of use with the agreed features and tothe extent required for use of the product in conformitywith the contract. We shall also be permitted tomake a back-up copy without an express agreement.
4 Force majeure
Force majeure, labour disputes, operating disturbances beyondthe control of the party obliged to perform, civil unrest,acts of government and other unavoidable events shall entitleus to cancel the contract in part or in full - without affectingour other rights - as long as they are of significantduration and result in a considerable reduction in our demand.
5 Shipping advice and invoice
The specifications in our purchase orders and calls for deliveryshall apply. A single copy of the invoice, showing theinvoice number and other identifying information, is to besent to the respectively printed address. It may not be includedwith the shipment. Supplier is obliged to indicate ourorder number on all shipping papers.
6 Pricing and passing of risk
Unless agreed otherwise, prices shall be carriage and dutypaid(DDP as per Incoterms 2000), including packaging.Value-added tax is not included. Supplier shall bear thematerial risk until the goods are accepted by us or ouragent at the location to which the goods are to be deliveredas specified in the order.
7 Terms of payment
Unless agreed otherwise, the invoice shall be settled eitherwithin 14 days less a 2% discount, or within 30 days withoutdeduction after the invoice is due and the invoice andthe goods are received, or the service rendered. Paymentshall be made subject to checking of the invoice. We expresslywaive any haulage and warehousing insurance("SLVS-Verzichtskunde"). Any premiums charged will bededucted.
8 Warranty claims and recourse
8.1 The statutory provisions shall apply.
8.2 Acceptance shall be subject to examination for absenceof defects, particularly also for correctness,completeness and suitability. We shall be entitled toexamine the subject of the contract, to the extent thatand as soon as this is expedient in the ordinarycourse of business. We shall report any defects immediatelyupon discovery. Inasmuch, Supplier shallnot object on grounds of belated defect notification.
8.3 We are generally entitled to select the type of subsequentperformance. Supplier shall be entitled to refusethe type of subsequent performance selected byus under the provisions of Art. 439 Para. 2 German Civil Code.
8.4 If Supplier fails to begin to remedy the defect immediatelyafter our request to do so, then we shall beentitled in urgent cases, particularly the prevention ofacute hazards or the avoidance of major damage, toremedy the defect ourselves, or to have it remediedby a third party, at the expense of Seller. Material defectclaims shall be barred after 2 years, unless thematerial has been used in the usual manner for abuilding structure and caused a defect in the buildingstructure. The period of limitation for material defectclaims commences with the delivery of the subject ofthe contract (passing of risk). | | 8.5 In the event of defects in title, Supplier shall furtherexempt us from any existing claims of third parties.Defects in title shall be subject to a period of limitationof 10 years.
8.6 For parts of the delivery that are repaired within theperiod of limitation of our warranty claims, the periodof limitation shall begin anew when Supplier hascompletely fulfilled our claims for subsequent performance.
8.7 Supplier shall bear any costs incurred by us as a resultof the defective delivery of the subject of thecontract, particularly transport, travel, labour and materialcosts, or costs for receiving inspection that exceedsthe usual scope.
8.8 If we take back goods manufactured and/or sold byus as a result of the defectiveness of the subject ofthe contract delivered by Supplier, or if our customerreduces the purchase price for this reason or we areheld liable in any other way as a result thereof, thenwe reserve the right of recourse vis-?-vis Supplier, inwhich case our warranty claims shall not be subjectto the fixing of a time limit as otherwise required.
8.9 We shall be entitled to demand that Supplier reimburseany expenses we have been forced to bearvis-?-vis our customer, because it has a claim on usfor reimbursement of expenses incurred for the purposeof subsequent performance, particularly transport,travel, labour and material costs.
8.10 If a material defect becomes apparent within 6months of the passing of risk, then it shall be assumedthat the defect already existed at the time ofthe passing of risk, unless this assumption cannot bereconciled with the nature of the material or the defect.
9 Product liability and recall
If claims are asserted against us on the basis of product liability,then Supplier shall be obliged to exempt us fromsuch claims insofar as the damage was caused by a defectin the subject of the contract delivered by Supplier. Incases of liability based on fault, however, this shall onlyapply if the fault lies with Supplier. If the cause of the damagelies within Supplier's sphere of responsibility, then itshall bear the burden of proof. In these cases, Suppliershall assume all costs and expenses, including the costs ofany legal proceedings or recall campaigns. The statutoryprovisions shall apply in all other respects.
10 Execution of work
Persons who execute work on company grounds in order tofulfil the contract shall observe the provisions of the respectivecompany regulations. Liability for accidents on companygrounds in which these persons are involved shall beexcluded, insofar as they were not caused by an intentionalor grossly negligent violation of duty by our legalrepresentatives or vicarious agents.
11 Product and environmental regulations
11.1 Upon acceptance of our order the supplier orservice provider shall undertake to comply with thelatest versions of all relevant product andenvironmental regulations that apply in the singleEuropean market.
11.2 With regard to goods or services ordered particularattention is drawn to the following laws andregulations: Chemicals Act with ordinances, FederalWater Act, Plant Safety Regulation and theHazardous Substances Ordinance.
11.3 The latest version of any EU Material Safety DataSheets that apply to the goods or services ordered must be sent to us without prior request.
12 Retention of title, provision of materials, tools
12.1 We retain title to any materials, parts, containers andspecial packaging materials provided by us. Theymay only be used as intended. The processing ofmaterials and the assembly of parts are carried outon our behalf. It is mutually agreed that goods producedusing our materials and parts, which are heldin custody for us by Supplier, shall be co-owned byus at the ratio of the value of the materials providedto the value of the overall goods.
12.2 We retain title to any tools. Supplier shall be obligedto use the tools exclusively for manufacturing thegoods ordered by us. Supplier shall be obliged to insuretools belonging to us at replacement valueagainst damage due to fire, water and theft. It shallbe obliged to promptly perform any necessary maintenanceand inspection work at its own expense.Supplier shall notify us of any disturbances. Shouldhe fail to do so out of negligence, we reserve theright to claim damages.
13 Documentation and confidentiality
13.1 All business or technical information made availableby us (including features contained in any submittedobjects, documents or software and any otherknowledge or experience) is to be kept confidentialvis-?-vis third parties as long as, and insofar as it isnot demonstrably public knowledge; it may only bemade available to persons in Supplier's own organisationwho must be involved in its use for the purposeof the delivery to us and who are likewiseobliged to maintain confidentiality. We retain exclusivetitle to this information. Without or prior writtenconsent, information of this kind may not be duplicatedor used for commercial purposes - except fordeliveries to us. If so requested by us, all informationoriginating from us (including any copies or recordsmade) and loaned objects are to be immediately andcompletely returned to us or destroyed. We retain allrights to such information (including copyrights andthe right to apply for proprietary rights, such as patents,utility patents, etc.). If this information wasmade accessible to us by third parties, then this reservationof rights shall also apply on behalf of thesethird parties.
13.2 Goods manufactured according to documents createdby us, such as drawings, models and the like, oraccording to our confidential specifications, or withour tools or copied tools, may not be used by Supplieritself or offered or delivered to third parties. Thisshall also apply mutatis mutandi to our print orders.
14 Place of performance
The place of performance shall be the location for deliveryof the goods as specified in the order.
15 General provisions, legal venue, applicable law
15.1 Should a provision of these Conditions, or of any furtheragreements made, be or become invalid, thisshall not affect the validity of the remaining Conditions.The Parties hereto are obliged to replace theinvalid provision with a regulation that most closelyreflects its economic intent.
15.2 The venue for all legal disputes arising directly or indirectlyfrom contractual relationships based onthese Conditions of Purchase shall be the domicile ofEmitec Gesellschaft f?r Emissionstechnologie mbHin D-53797 Lohmar, Germany. We shall further beentitled to take legal action against Supplier at thecourt of Supplier's domicile or branch office, or at thecourt of the place of performance.
15.3 We reserve the right to obtain credit insurance forbusiness transactions and to provide the insurer withthe necessary data concerning Supplier.
15.4 The definitions in the Incoterms 2000, including anyand all supplements thereto, shall apply in addition tothese Conditions.
15.5 Contractual relations shall be subject exclusively toGerman law, excluding the law concerning conflict oflaws and the United Nations Convention on Contractsfor the International Sale of Goods (CISG). |
| Conditions of Delivery and Payment 
Printversion
| Applicable in business dealing with companies, legal entities in public law and public special funds.
1 General
1.1 Our terms and conditions of delivery shall be exclusively valid; we shall not recognise any conflicting terms and conditions or those, which deviate from our own unless we have explicitly agreed to them in writing. Our terms and conditions of delivery shall be valid even if we make deliveries in the knowledge of other customer conditions that deviate from our own.
1.2 Our terms and conditions shall also be valid for all future business dealings with the suppliers.
1.3 Emitec has been certified in accordance with ISO TS 16949 and accordingly only those tested products with work?s test certificate shall be released for delivery. Should any additional customer requirements exist, these are to be agreed in writing.
2 Conclusions of Contract and Contractual Amendments
2.1 Our offers and quotations are subject to change without notice.
2.2 Unless agreed otherwise in writing, any documentation pertaining to the quotation, such as descriptions, illustrations, drawings, weight and measurement specifications, shall only be binding if these are explicitly referred to as such in writing.
2.3 In the case of orders of special fabrications we reserve the right to make excess or short only deliveries.
2.4 Unless otherwise agreed cost estimates shall be remunerated.
2.5 Verbal agreements subsequent to the conclusion of contracts, especially amendments or supplements to our terms and conditions of the delivery, including this written from clause, as well as additional agreements of any kind all require written confirmation on our part before they are to be deemed valid.
3 Delivery Item
The delivery item does not generally include manuals and technical diagrams unless agreed otherwise.
4 Delivery
4.1 The delivery period shall result from the written agreement between the parities to the contract. Compliance on our part with this presupposes that all commercial and technical questions have been resolved between the parties to the contract and the customer has met all of his obligations such as the presentation of the requisite official certification or license or the payment of a deposit. If this is not the case then the delivery time shall be extended accordingly. This shall not be valid should the delay be our responsibility .
4.2 Compliance with the delivery time shall be under the proviso that we ourselves receive correct and timely deliveries.
4.3 Compliance with delivery deadlines is deemed to have been achieved provided that the delivery item has left our factory or readiness for dispatch has been notified by the time of deadline expiry. Should an inspection be required to take place, the date of inspection is decisive - unless there is good reason for refusing acceptance at inspection - or by way of help notification of inspection readiness.
4.4 If dispatch and/or the inspection of the delivery item should be delayed for reasons that are the responsibility of the customer, he will be charged for the costs caused by the delay commencing one month after he has been notified of delivery or inspection readiness.
4.5 Should non-compliance with delivery time be due to force majeure or other events beyond our control, the delivery time will be extended accordingly. We shall inform the customer at the earliest possible opportunity should any such circumstances come about or cease.
5 Price and Payment
5.1 Unless any special agreements are made, all prices are Euro prices ex-work and including loading at the works, but do not include packaging, freight, postage, insurance, unloading and other risks. The prices shall be subject to Value Added Tax at the relevant statutory rate. All payments are to be made in the currency in which the invoice is issued.
5.2 In the absence of any special arrangements, payments are to be made in full within 30 days of delivery without any deduction / 30 days from the date of invoice free to our domicile.
5.3 The customer only has the right to retain payment or to offset counterclaims against them if his counterclaim are undisputed or have been established as being legally enforceable.
6 Transfer of Risk
6.1 Risk shall transfer to the customer upon the delivery item leaving the factory, even in those cases where part deliveries are being made or if on our part other services are being provided, for example assumption of freight costs or delivery and assembly. In so far as an inspection is to take place, this shall be the decisive point for transfer of risk. This shall be carried out immediately at the point of inspection or by way of help following our notification of inspection readiness. The customer is not permitted to refuse acceptance at inspection should a non-significant defect be established.
6.2 Should dispatch and/or the acceptance inspection be delayed or not take place as a result of circumstances that are not attributable to us, risk shall transfer to the customer as of the date upon which dispatch and/or inspection readiness is notified. We undertake to take out, at the cost of the customer, any insurance policies required by the same.
6.3 Part deliveries are permissible, provided these can be reasonably expected of the customer.
7 Retention of Ownership
7.1 We reserve the right to retain ownership of the delivery item until all payments arising from the business relationship have been received. In case of bills and cheques being accepted on our part, the receipt of payment shall be deemed to be the date upon which these are paid to our account and the balance is drawn.
7.2 We are entitled to insure the delivery item against theft, breakage, fire, water and other damages at the expense of the customer in so far as there is no proof to the effect that the customer has himself concluded such insurance.
7.3 The customer is not permitted to transfer ownership of the delivery item as security. He is to inform us immediately in the case of arrest, attachment or any other third party disposition.
7.4 Should the customer act in violence of the contract, particularly with regard to default in payment, we are entitled top repossess the delivery item after setting a deadline and the customer is obligated to surrender possession. Any use of our right to retention of ownership or repossession of the delivery item shall not constitute out withdrawal from contract.
7.5 The application on the part of the customer to open bankruptcy proceedings automatically shall entitle us to withdraw from the contract and to demand the immediate return of the delivery item.
7.6 The customer shall be permitted to sell or process the delivery items - over which we have ownership - as part of an orderly business transaction . However, this is only valid provided the customer is not in arrears with his payments to us. The claims, which the customer makes of his client as a result of the re-sale are hereby automatically assigned to us. We shall accept this transfer and shall remain authorised to request information with regard to the purchaser and the amount of this claim arising from the sale. In addition to ourselves, the customer shall remain authorised to collect the claims from the purchaser unless we determine otherwise. If the delivery item is re-sold together with other items that do not belong to us, the customer?s claim vis-?-vis the purchaser shall be transferred to us to the amount of the price agreed between the customer and ourselves.
7.7 Any processing or conversion of the delivery item shall be performed on our behalf by the customer without any obligations resulting on our part. If via linking or combining, the delivery item becomes an essential component of another thing or if a new item is manufactured via its being processed or converted, the customer hereby shall transfer his ownership and/or co-ownership of this item and he shall undertake to keep this in safekeeping for us free of charge whilst exercising the utmost commercial care. In the case of re-sale, clause 7.6 shall be applied accordingly. Should co-ownership of items come about, our share thereof shall correspond to the ratio of the value of the delivery item to the value of the new item. | | 7.8 We undertake to release the securities to which we are entitled in so far as their value exceeds the claims to be secured by more than 25%.
7.9 In so far as the legal regulations of a state into which the delivery items are to be delivered places special requirements as a prerequisite for the retention of ownership, in particular also vis-?-vis the customer?s creditors , it is the task of the customer to immediately undertake all necessary steps to ensure that the retention of ownership is and remains in place until the payment of the total purchase price has been effected. The customer shall be responsible for any possible, associated cost.
7.10 In so far as the legal regulations of a state into which the delivery items are to be delivered does not permit the retention of ownership but does permit us to retain other rights with regard to the delivery item, we may exercise all rights of this kind. The customer shall be obligated to co-operate with all measures, which we wish to take in order to protect our rights of ownership or other rights to the delivery item.
8 Liability for Material Defects and Defects in Title
8.1 After having been notified by the customer of defects pertaining to the delivered item, we shall remedy the same. This shall be carried out at our discretion either via free rectification or replacement delivery. In the case of replacement delivery, the replaced items become our property and the purchaser is obligated to return the defective item. In order to perform all rectifications and replacement deliveries we deem to be necessary the purchaser must, after having reached agreement with us, give us the requisite time and opportunity; otherwise we shall be released from liability with regard to any consequences arising in this regard. Only in urgent cases where there is a risk to operational safety or in order to avoid disproportionately major damage - in which case we are to be informed immediately - the customer has the customer has the right to rectify the fault himself or via a third party and to demand from us reimbursement of the expenses incurred. Of the costs incurred through the rectification and/or replacement delivery we shall - provided the complaint proves justified - bear the costs of the replacement part, including shipping costs, as well as appropriate costs for removal and fitting and in addition - should it be possible to demand this in all fairness depending on the situation in a particular case - the costs for the provision of the required fitters and helpers.
8.2 Should it not be possible to remedy the defect within the appropriate deadline, or if the replacement delivery are deemed to have failed for any other reason, the customer may chose for either demand a reduction in the amount to be paid or withdraw from the contract. Failure to remedy the situation is not to be assumed until we have been given adequate time to repair the item or provide a replacement item without the desired effect having been achieved; if rectification or replacement are no longer possible, if the supplier refuses to comply or causes an delay of an unreasonable period, if there are well-founded doubts with regard to the prospects of success, or if the situation is deemed to be unreasonable for any other reason . If the defect in question is of an insignificant nature the customer shall only have the right to request a reduction in the price. The right to lower the price shall otherwise be out of the question.
8.3 We shall not assume liability for defects in the following cases: inappropriate usage or usage other than that intended, faulty installation or incorrect operation by the customer or third parties, wear and tear, incorrect or negligent treatment, incorrect maintenance and unsuitable operating materials.
8.4 If the customer or any third party performs improper repairs, we shall not be liable for any consequences arising from the same. The same is true with regard to any modifications to the delivery item performed without our prior agreement.
8.5 If use of the delivery items leads to violation of industrial property rights or national copyrights we shall at our expense fundamentally establish the right of the customer to continue use or modify the delivery item in a reasonable manner for the customer so that the violation of rights no longer prevails. If this should prove impossible to achieve to economically appropriate conditions or within an appropriate period of time, the customer is entitled to withdraw from the contract. We shall also have a right to withdraw from the contract given the aforementioned prerequisites. In addition to the above we shall indemnify the customer with regard to undisputed or legally binding claims by the respective owner of the rights. The above obligations on our part - subject to the proviso of Clause 9 - are final with regard cases of property right or copyright violations. They shall only exist if:
- the customer informs us immediately of assertion of claims for property right or copyright violations,
- the customer provides us with an appropriate scope of support in repelling any claims asserted and/or makes it possible for us to conduct the modification measures in accordance with the above terms and conditions,
- our rights remain reserved to take all measures in defending against the claims, including out of court settlements,
- the defect in title is not based on a customer instruction and
- the violation of the law was nit caused by the fact that the customer himself altered the delivery item or had used it in a non-contractual manner.
9 Liability
9.1 With regard to damages which have not arisen in the delivery item, we shall - for whatever legal reason - only be liable
- in cases of intent
- in cases of gross negligence
- in cases of culpable injury of life, body or health
- in cases of defects , which have been concealed with malicious intent, or which we have guaranteed shall not be present
- in cases of defects of the delivery item, in so far as there is liability for personal damage or property damage to privately used items according to product liability laws.
In the case of culpable violation of fundamental contractual duties, the supplier shall be liable also for gross negligence of non-executive employees and in cases of ordinary negligence, the latter being limited to contract-typical damages that could reasonably be foreseen.
9.2 All other claims shall be excluded.
10 Statutory Limitation
All claims on the part of the customer - for whatever legal reason - shall become statute-barred in 12 months. In cases of deliberation or malicious behaviour, as well as claims pursuant to product liability laws the statutory time limits shall apply. These are also valid with regard to defects in building structures or for delivery items, which are used in accordance with their usual method of use within a building structure and which have caused its defects.
11 General Regulations, Legal Domicile & Applicable Law
11.1 Should any individual clause or any part of any provision within these terms and conditions and any subsequent agreements made be or become void, illegal or unenforceable, the validity of the remaining clauses shall remain unaffected. In any such case, the parties to these terms and conditions are obligated to replace that clause or those clauses that come as close as possible to the sense and spirit and purpose of these terms and conditions.
11.2 Legal domicile for all legal disputes resulting either directly or indirectly from contractual relationships upon which these terms and conditions are based shall be the headquarters of the Emitec Gesellschaft f?r Emissionstechnologie mbH in Lohmar, Germany. We shall also have the right to choose to bring charges against the supplier at the court domiciled at the place of his headquarters or of his branch or at the court at the place of fulfilment.
11.3 Further to these regulations, the Incoterms 2000 definitions of terms shall be valid including any supplements.
11.4 German law shall be solely applicable with regard to the contractual relationship to the exclusion of the law on collision and the United Nation?s Treaty on Contracts concerning the International Sale of Goods (CISG). |
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