“Purchase Terms”

General Terms and Conditions for Deliveries and Services Rendered to Berchtold GmbH & Co. KG or Berchtold Holding GmbH under a Purchase or Service Contract

current as of 8/2010

I. Scope of these General Terms and Conditions

 

1. These General Terms and Conditions apply to precontractual obligations, contracts and business relations

of BERCHTOLD Holding GmbH
and BERCHTOLD GmbH & Co. KG
(referred to in the following collectively as “Berchtold”)

with suppliers, to the extent that these are entrepreneurs, corporate bodies under public law or federal special funds under public law within the meaning of § 310 Section 1 of the German Civil Code (referred to the following as “Supplier”), in the context of purchase and service contracts.

 

2. These General Terms and Conditions shall also apply to follow-on contracts unless agreed upon otherwise.

 

3. Amendments to these General Terms and Conditions shall also apply in cases of continuing obligations, provided Berchtold has notified Supplier of the new General Terms and Conditions and of how they can be accessed and provided the Supplier does not object within six weeks thereafter. If the supplier objects, Berchtold shall be entitled to terminate the contract within six weeks of receiving the objection notice.

 

4. These General Terms and Conditions shall apply exclusively, and any conditions of the Supplier which are in contradiction or deviation shall be ineffective unless Berchtold expressly approves of them. Other terms and conditions shall not be deemed accepted even in cases where Berchtold has accepted deliveries from the Supplier without reservation and in awareness of such contradictory or deviating terms and conditions.

 

II. Scope of Deliveries or Services, Entry into Effect of the Contract, Termination

 

1. Deliveries and services shall be agreed upon in writing to obviate problems with providing evidence.

 

2. Supplier must conform to the Quality Guideline as last amended at the contract’s effective date. This Quality Guideline can be viewed at www.Berchtold.biz and will be sent to Supplier on request.

 

3. Supplier’s offers are to be submitted free of charge and without obligation on the part of Berchtold. Supplier must make out the offer on the basis of the quantities, properties, and designs specified by Berchtold in its non-binding inquiry or tender and must expressly point out any deviations. The term of acceptance as defined in §147 II of the German Civil Code shall be 3 weeks.

 

4. In the exceptional case that not Supplier, but Berchtold should submit a binding offer, then Berchtold shall be bound to that offer for 2 weeks following its receipt by Supplier unless the offer states otherwise.

 

5. In the case of orders by call, only calls for delivery shall be deemed binding orders in the event of doubt.

 

6. Either party shall be entitled to extraordinary termination if insolvency proceedings have been instituted against the other party’s assets or if the other party discontinues payments longer than only temporarily.

 

III. Performance

 

1. Supplier commits to complying with the applicable legal and administrative regulations and requirements in fulfilling the contract. Deliveries and services rendered under this Contract must be state of the art.
Standards such as DIN or VDE and all other regulations and the Machinery Directive must be adhered to. Supplier must include in the delivery any protective equipment prescribed by such regulations at no extra charge.

 

2. If Supplier should see cause for concern regarding the type of execution requested by Berchtold, Supplier must inform Berchtold of this immediately in writing.

 

3. If special legal regulations applicable to a contractual delivery or service should change during the period covered by this Contract, Supplier must immediately inform Berchtold of the altered regulations and send Berchtold the relevant papers and documents.

 

4. Berchtold shall be entitled to return to Supplier free of cost any hazardous materials or materials hazardous to water made available by Supplier for test purposes.

 

5. Supplier must include in the delivery all documentation (test reports, inspection certificates, drawings, layouts, operating instructions etc.) required for acceptance, operation, maintenance and repair in German, if required in reproducible form, at no extra cost.

 

6. Deviations from order specifications shall require Berchtold’s prior permission.

 

IV. Deadlines, Delayed Delivery, Force Majeure

 

1. Dates and deadlines shall be binding unless specified otherwise. The delivery period shall begin at the conclusion of the Contract. If delays are to be expected for whatever reason, Supplier must immediately give notice of this in writing stating the reasons and the probable duration.

 

2. If Supplier has undertaken to perform the assembly and nothing to the contrary has been agreed, Supplier shall bear all incidental costs such as travel costs, provision of tools and out-of-pocket expenses except as otherwise provided.

 

3. Unconditional acceptance of a delayed delivery or service shall not constitute a waiver of claims for damages to which Berchtold is entitled.

 

4. Part-deliveries shall be impermissible unless this has been expressly agreed to by or can be deemed acceptable to Berchtold.

 

5. Unless agreed upon otherwise, Berchtold shall be entitled to make a backup copy of any software included in a product delivery even when this has not been expressly agreed upon.
 

 

V. Advice of Dispatch and Invoice

 

The invoice must be sent to the respective address and must include the invoice number and other identifying information; it must not be included in the delivery.

 

VI. Pricing

 

Unless agreed upon otherwise, prices shall be DDP as per Incoterms 2000 and shall include packaging.

 

VII. Terms of Payment

 

Unless provided otherwise, invoices shall be payable within 14 days with a 3 % cash discount or in accordance with the legal regulations. Payment shall be made subject to invoice checking.

 

VIII. Claims for Defects and Recourse

 

1. Supplier shall bear liability in accordance with the legal regulations.

 

2. Berchtold shall in principle be entitled to choose the type of subsequent fulfilment.

 

3. If Supplier does not begin with the remediation of defects immediately at Berchtold’s prompting or if Supplier is not willing or able to perform remediation itself, Berchtold shall be entitled in urgent cases, particularly for staving off acute hazards or avoiding large-scale damage, to effect remediation itself or contract a third party for this purpose. Other statutory claims shall remain unaffected.

 

IX. Limitation Period

 

Claims for damages which fall under § 438 I No. 3 or § 634a I Nr. 3 of the German Civil Code shall become time-barred after three years.

 

X. Liability and Callback

 

1. Supplier shall take out appropriate corporate liability, product liability and recall insurance with coverage commensurate with order volumes and shall present the relevant insurance policies to Berchtold upon request.

 

2. In the event of a delivery of defective products within the meaning of the Product Liability Law Supplier shall indemnify Berchtold from all resulting product liability claims unless Berchtold’s negligence was greater than Supplier’s or if there was negligence on Berchtold’s but not on Supplier’s part.

 

3. Supplier shall be liable for claims arising from infringements of intellectual property rights negligently caused by Supplier in carrying out the contract. Where Supplier is liable for such infringements, Supplier shall indemnify Berchtold from third-party claims arising from infringements of intellectual property rights, provided that Berchtold did not act wilfully.

 

XI. Ownership of Materials Provided by Berchtold

 

All materials and documents provided by Berchtold shall remain, respectively, the material or intellectual property of Berchtold. They must be labelled as such and stored, named and administered separately. They may only be used for their designated purpose.
When processing or modifying materials provided by Berchtold Supplier shall be deemed to be acting on Berchtold’s behalf. If the goods in question are processed together with or inseparably combined with items that are not the property of Berchtold, then Berchtold shall acquire a co-ownership share in the resulting item proportionate to the ratio of the invoice value of the goods to that of the other co-processed or commingled items at the time of processing.
If Berchtold’s ownership should become null and void as a result of the combination or commingling, Supplier shall already at this point in time assign its ownership rights in the new stock or item to Berchtold to an extent corresponding to the invoice value of the goods that are subject to retention of title and shall store them for Berchtold free of charge. Berchtold accepts the assignment.

 

XII. Documents and Secrecy

 

1. All commercial and technical information made available by Berchtold (including features, even if these are indirectly derivable from objects, documents or software provided, and any other knowledge or experience) must be kept secret for as long and to the extent that it is not proven public knowledge and may only be made accessible to those persons at Supplier's facility who necessarily need to use it for the purpose of supply to Berchtold and who have likewise been bound to secrecy. This shall also include information originating from or relating to third parties which Berchtold makes available to Supplier.

Such information may not be reproduced or used commercially for purposes other than delivery to Berchtold without Berchtold’s prior written consent. All information originating from Berchtold (including where applicable any copies and recordings) and all loaned items must be returned to Berchtold or destroyed completely and without delay at Berchtold’s behest. This shall apply in each case to the extent that such documentation is not needed for the purpose of substantiating legitimate claims. Berchtold reserves all rights relating to such information (including intellectual property rights and the right to registration of industrial property rights such as patents, utility models, semiconductor protection etc.).

 

2. Products manufactured on the basis of documentation prepared by Berchtold such as drawings, models or the like or on the basis of confidential information or using Berchtold’s tools or tools copied from Berchtold’s tools may neither be used by the Supplier itself nor offered or supplied to third parties.

 

3. Supplier may only mention its business relations with Berchtold with Berchtold’s express permission.

 

4. The secrecy obligation shall remain effective for five years after the termination of contractual relations with Berchtold.

 

XIII. Place of Jurisdiction, Applicable Law

 
1. If Supplier is a general merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Tuttlingen. However, Berchtold shall also be entitled to sue Supplier at Supplier’s place of residence or domicile.

 

2. Legal relations existing in connection with this contract shall be governed by German substantive law (in accordance with § 4 II of the Introductory Law to the German Civil Code), to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN Purchase Law).