General Purchasing Conditions of aquagroup AG
- Scope of application
All supplies and services of Suppliers to aquagroup AG (aquagroup) shall be governed by these terms only. They shall not apply to construction or labour agreements. Conflicting terms of Supplier shall not apply even if aquagroup fails to object to them in a specific case, namely if aquagroup accepts supplies ordered without such objection, or if aquagroup refers to correspondence which contains, provides for or makes reference to conflicting terms of Supplier. These terms shall apply to all future agreements with Supplier, even if aquagroup does not refer to these terms again.
- Written form
Supplier shall give all and any notices or declarations to aquagroup under or in relation to an agreement in writing. Otherwise, such notices or declarations shall be invalid. Agreements, amendments or addenda to agreements, as well as individual agreements, shall be read and construed as fixed in writing or as confirmed in writing by aquagroup.
- Offers and orders
If the Supplier does not confirm an order without any changes, without undue delay, at the latest, however, two weeks after receipt, aquagroup shall no longer be bound to such order. The right of aquagroup to provide for a different time for Supplier to confirm such an order shall remain unaffected. Supplier shall confirm such orders without undue delay, however, no later than five working days following receipt of the order.
- Delivery dates and delays
a) Dates agreed or confirmed for supplies or services shall be binding. If delays are to be expected or have occurred, Supplier shall inform aquagroup immediately.
b) If Supplier fails to deliver supplies or services at the date agreed between the parties, Supplier shall be in delay. If, under the agreement between the parties, a date can be identified until which the supplies or services have to be delivered or performed at the latest, Supplier shall likewise be in delay after such date has passed. In the cases under sentences 1 and 2, aquagroup shall be entitled to its rights in case of delay of debtor as provided under statutory law.
c) Supplier shall pay to aquagroup liquidated damages of 0.5 per cent of the value of supplies or services for each new week of delay, up to a maximum of 5 per cent of the value of supplies or services. Supplier may prove that actual damages suffered by aquagroup are lower. Nothing in this paragraph shall restrict the right of aquagroup to claim higher damages.
d) If Supplier fails to deliver its supplies or performs its services even after an appropriate deadline set by aquagroup has expired, aquagroup shall, after such expiry, be entitled to entrust the supplies or deliveries to a third party and to charge necessary expenses and additional cost to Supplier. aquagroup shall be entitled, at the same time, to claim damages in lieu of performance.
a) Prices stated in an order shall be binding. They are based on Incoterms 2000 DDP Weiden (delivered duty paid Weiden). The price shall comprise installation or implementation of devices, cost for packaging, duties, transportation and, if applicable, insurance. Supplier shall take back packaging material at its own cost upon request of aquagroup.
b) Unless stipulated otherwise, aquagroup shall pay the price following delivery of products or approval of services and receipt of the correct invoice (lit. c) within 14 days with a discount of 3 per cent, or within 30 days net.
c) Supplier shall state the order number and the date of the order in all confirmations, delivery documents or invoices. If one of these statements is missing, aquagroup shall be entitled to return the invoice. In any case, periods for payment under lit. b shall be extended by such time by which review and processing of an invoices is delayed because of missing statements.
d) aquagroup shall not owe interest on receivables due. aquagroup shall not be in delay of payment unless dunned in writing by Supplier. Interest for delay in payment shall be five per cent points above the base rate.
e) aquagroup shall be entitled to retention and set-off as provided under the law. Furthermore, aquagroup may withhold payments even if due as long as obligations of Supplier arising out of incomplete or defective supplies are open.
a) Supplier may subcontract supplies or services with the prior written consent of aquagroup only. Supplier shall remain responsible for complying with all obligations to aquagroup in any case.
b) Deliveries in part shall be subject to the prior written consent of aquagroup.
c) A technical description and a manual for use shall be supplied without charge for instruments and technical devices. Software shall be deemed supplied no sooner than complete documentation relating to systems and users has been handed over. If software has been developed for aquagroup, programmes shall be supplied in a source code format, too.
- Regulatory Issues
a) Supplier shall comply with all legal or regulatory requirements applicable to its supplies or services. Relevant certificates, instructions for disposal or documents shall be provided with the deliveries free of charge.
b) Supplier shall be solely responsible for complying with provisions for avoiding accidents when fulfilling its obligations. Devices or equipment required under such provisions, as well as manuals or instructions from the manufacturer, shall be provided with the supplies free of charge.
- Transfer of risk, approval
a) Risk of loss or deterioration shall pass to aquagroup according to the Incoterms 2000 DDP Weiden upon delivery in the aquagroup premises. In case of deliveries including installation, such risk shall pass as soon as the device has been installed successfully. The approval of the installation shall be fixed in a formal minute.
b) If aquagroup starts to use a work product, this shall not replace the formal approval procedure.
- Obligation to inspect products and to give notice of defects, effort for inspection
a) aquagroup shall inspect products supplied in view of defects which can be detected upon examination of the exterior and review of delivery documents. In addition, aquagroup shall conduct spot checks according to generally accepted statistical methods. Notice of deviations from the agreement concerning quality or quantity of products shall be deemed timely if sent to Supplier within 14 days following receipt of the products.
b) Without prejudice to any further rights, aquagroup shall be entitled to inspect a delivery completely to the cost of Supplier if defects exceed maximum tolerances fixed by the parties.
- Warranty for defective products
a) Supplier shall warrant that products, upon transfer of risk, have the qualities as agreed between the parties and comply with the specifications. aquagroup shall have all claims provided under the law in case of defective products. A second delivery shall be inacceptable (§ 440 German Civil Code) if defects are caused by errors in development or technical design of products. In such case, aquagroup shall be entitled to the rights under Section 10 lit. d immediately.
b) As long as a product is not in the custody of aquagroup, Supplier shall bear the risk of loss or deterioration.
c) In urgent cases, in particular if safety of operations of aquagroup is endangered or if extraordinarily high damage may arise, furthermore to remedy minor defects, aquagroup shall be entitled to remedy the defect or possible damage caused by the defect itself or have the defect or such damage remedied by a third party, each at the cost of Supplier. This shall likewise apply if aquagroup has set an appropriate deadline for second delivery and Supplier has failed to remedy the defect or deliver nondefective products until such deadline. This shall also apply if aquagroup is forced to remedy or have remedied defects immediately in order to avoid delay of delivery to its own customers.
d) If aquagroup chooses not to remedy defects itself as provided under lit. c, it may, after having set an appropriate deadline for second delivery, rescind the agreement or reduce the compensation due under the agreement (reduction of price). In addition to these two alternative remedies, aquagroup shall have the right to claim damages.
e) Products supplied may not be encumbered by rights of third parties. If software is to be supplied, Supplier shall be liable for holding all rights, namely intellectual property rights, that are required for selling the software.
f) Unless provided otherwise, the period for warranty rights shall extend to 36 months running from transfer of risk under Section 8 lit. a. The period for warranty shall not run for such time beginning by aquagroup sending a notice of defects and ending by aquagroup receiving non-defective products or services. For parts of deliveries remedied or supplied as replacement for defective products, or services repeated for warranty purposes, the period defined in the first sentence shall run again beginning by receipt of non-defective products or services, unless Supplier has made a replacement delivery or remedied defects only as a matter of courtesy or for other reasons than those of warranty under this Section.
g) Nothing in these Terms shall limit or restrict rights and claims of aquagroup as a purchaser or a customer for works under statutory law.
- Obligation to hold harmless in case of defects
Supplier shall defend and hold harmless aquagroup against any and all claims raised by third parties – regardless of the cause of action – because of material or legal defects caused by default of Supplier. Supplier will reimburse aquagroup necessary cost of legal action required to defend against such claims.
- Technical documentation, tools and production devices
a) aquagroup reserves any and all property rights or copyrights for technical documentation, tools and specifications. Such documents or objects may be used for fulfilling the agreement only. Supplier shall return them to aquagroup, including all copies, even without a request, as soon as no supplies are owed under the agreement any more. Supplier waives any rights of retention it may have against aquagroup in this respect. Supplier shall not take copies nor replicate such objects unless this is indispensable to fulfill the agreement with aquagroup.