As of: March 2015
GENERAL TERMS AND CONDITIONS OF PURCHASE
Section 1 Scope
(1) These terms and conditions apply exclusively to all our orders and requests for quotation. They also apply – in the respective then current version – to all future business relations with the Supplier, even if they are not explicitly agreed upon for each transaction. Any other terms and conditions will not become part of the contract, even if we do not reject them explicitly while being aware of them.
(2) If reference to Incoterms is made in contractual agreements, the Incoterms 2010 shall apply.
Section 2 Offers made by the Supplier
Offers made by the Supplier shall be at no cost to ourselves and shall be binding on the Supplier. The Supplier’s offers shall be based on the exact quantities and condition of goods as specified in our requests for quotation and shall expressly point out any deviations therefrom.
Section 3 Orders
(1) No orders or agreements are binding unless we issue or confirm them in writing, via facsimile or e-mail. Should any orders or agreements be made orally or by telephone, we must confirm them in writing for them to become binding, as must any oral ancillary agreements or amendments to the contract. The same principle shall also apply to any deliveries or services that are additionally agreed. Our silence to suggestions, requests, etc. made by the Supplier shall by no means be interpreted as our consent to the Supplier’s suggestion.
(2) Any of our orders that the Supplier wishes to accept need to be confirmed in writing by the Supplier. If we do not receive the confirmation of order within two weeks after receipt of the order by the Supplier, we are no longer bound by the order. In case of informal initiation of business, our written order shall qualify as a commercial letter of confirmation.
(3) We do not recognise any order confirmations that vary from our order, even if we do not reject them in writing.
(4) We may demand that changes be made to the goods to be supplied and/or the delivery dates also after the conclusion of the contract to the extent reasonable for the Supplier. If contracts shall be amended accordingly, the effects on both sides must be taken reasonably into account, particularly in terms of additional or reduced costs and with regard to the delivery dates.
(5) If the Supplier realises or should realise as an expert in his field that an order is incomplete, or that the purpose of the order cannot be achieved by this delivery, he must inform us accordingly without undue delay and in detail.
(6) The Supplier must treat our orders as confidential. The Supplier must not name us as a reference towards third parties or otherwise use the business relationship with us for marketing purposes without our prior written approval.
Section 4 Delivery periods
1) The delivery periods and dates specified in our order are bindingly agreed unless the Supplier has explicitly rejected these in writing or we have agreed other dates with the Supplier in writing. If we did not specify any delivery dates in our order, the delivery dates specified by the Supplier are bindingly agreed. Whether delivery dates or deadlines are met depends on when goods reach our designated place of use and/or on the time of acceptance (Abnahme)where acceptance is required.
(2) The Supplier shall not to make partial deliveries or provide partial performance without our prior written approval. The decision whether we accept additional deliveries is in our free discretion.
(3) Should the Supplier realise that he cannot meet the agreed delivery dates, he must notify us accordingly without undue delay in writing,stating the reasons and how long the delay is likely to last. The obligation of the Supplier to timely delivery or performance shall not be affected thereby. If the Supplier does not comply with this obligation to inform us for reasons he is responsible for, and we incur any damage thereby, we are entitled to claim compensation of these damages from him. To this extent the Supplier shall not be entitled to claim that the delay of delivery or performance is not his fault.
(4) If we accept supplies or services which are late, this shall not be construed as a waiver of any claims or rights.
(5) Should the Supplier be unable to meet agreed deadlines for reasons he is responsible for, we may, after expiration of a reasonable period of grace set by us, claim damages instead of delivery or procure substitute goods from third parties at the Supplier’s expense and/or rescind the contract. Should the Supplier be repeatedly in default with its deliveries, we may – after a prior warning letter in writing – also withdraw from any or all orders not performed at that time with immediate effect.
(6) If the Supplier is unable to comply with the agreed deadline or delivery date due to force majeure (e.g. natural disasters, civil unrest,war, fire, flooding) or due to a disruption of his own production operations that was unforeseeable and unavoidable the delivery period shall be extended by the duration of the disruption. The Supplier may invoke force majeure only on the condition that he informs us immediately about the obstacle and its prospective duration. If the disruption is more than temporary in duration and acceptance of Supplier’s late performance is unreasonable for us due to the delay, we have the right to withdraw from the contract in respect of the part which has not yet been fulfilled. In case of a partial performance, we have the right to withdraw from the contract in its entirety if we have no interest in the partial performance.
(7) Unless the preceding regulations of this Section 4 provide otherwise, the Supplier’s liability for delays in delivery or performance shall be governed by statutory law without any restrictions.
Section 5 Prices, dispatch, packaging, transfer of risk and title
(1) Prices are fixed once agreed, and include the costs of packaging, freight and transport to our specified delivery address and/or point of use. Where the contractual agreement requires us to bear the cost of transport, the least expensive manner of transport must be chosen.
(2) If, between the date of confirmation of the order and the delivery date, the Supplier generally reduces prices for the goods to be delivered, the reduced prices that are applicable on the delivery date shall apply instead of the originally agreed prices.
(3) Deliveries shall be effected free our specified delivery address and/or point of use. Dispatch is at the Supplier’s risk. The risk of all kinds of deterioration, including loss by accident, remains with the Supplier until delivery to our specified delivery address and/or place of use.
(4) Title to goods supplied passes to us once they are paid for. We do not accept any extended or prolonged retention of title on the Supplier’s part.
(5) The Supplier is obliged to avoid unnecessary packaging so as to minimise our disposal costs.
Section 6 Warranty and liability
(1) Warranty and liability are governed by the statutory provisions unless otherwise stipulated in these terms and conditions or in any other written agreement between ourselves and the Supplier. For the avoidance of doubt: the provisions of this Section 6 do not affect the Supplier’s liability under other provisions of these terms and conditions, e.g. Section 9, sub-sections (1) and (7) or Section 10, sub-section (5) below.
(2) The Supplier shall ensure that all supplies and services he provides are state-of-the-art, comply with relevant legal requirements (in particular with regard to the requirements applicable by that time regarding technical safety, safety at work, protection of health, environment and against fire) and instructions and guidelines of the competent authorities, mutual indemnity associations and professional associations, and meet the functions and specifications required. This applies accordingly to the compliance with all the data and quality standards as stated in our orders, drawings and/or supply specifications which define the target condition of the goods or services to be provided by the Supplier. Should these specifications have to be varied in exceptional cases, the Supplier must obtain our prior consent to this in writing. This consent does not affect the Supplier’s warranty obligations. Should the Supplier have any concerns as to our desired manner of performance, he must inform us in writing without undue delay. This shall also apply to any possible suggestions for improvements or changes made by the Supplier with regard to the delivery or performance desired by us. If we do not agree with the Supplier on the specifications of the goods to be provided by the Supplier, the description made by the Supplier of its products (e.g. in catalogues) shall be deemed agreed upon as minimum specifications. Irrespective thereof the Supplier shall bear the responsibility that the goods are suitable for the purpose provided by the contract.
(3) We are obliged to inspect the supplied goods and to lodge complaints about defects only after complete delivery and only with regard to any deviations in identity and quantity as well as externally visible transportation damage. We are under no obligation to carry out any technical performance tests and/or other examinations except by way of random checks. If, in the individual case, we have a duty under said regulations to complain of defects, the complaint is deemed to be on time if it is lodged with the Supplier within 14 working days after delivery of the goods, in the case of obvious defects, or within 14 days after a hidden defect has been discovered or could have been discovered by due inspection.
(4) The Supplier shall remedy any defects in supplies or services notified to him by us during the warranty period, which includes failing to meet guaranteed data and the absence of guaranteed specifications and qualities, on our request without undue delay and free of charge. This includes all ancillary costs, repair or replacement of defective components, which is at our sole choice, without prejudice to any further or other claims in law, and, more particularly, the right to rescind the contract, demand a reduction of the price and/or claim damages.
(5) Should the Supplier fail to meet his warranty obligations within a reasonable respite set by us, due to fault on his part, we may have the measures necessary to remedy the defect be carried out by ourselves or by third parties, at the Supplier’s risk and expense, without prejudice to his warranty obligations. In urgent cases, we may – after consulting with the Supplier – remedy defects ourselves, or engage a third party to do so at the Supplier’s expense. Where required to ensure that we can supply our own customers on time or if there is a risk of exceptionally high losses, we may remedy minor defects ourselves without consulting the Supplier beforehand and without prejudice to the Supplier’s warranty obligations.
(6) The warranty period is 36 months unless explicitly agreed otherwise in writing with the Supplier, or a longer warranty period is stipulated by law for the product to be supplied by the Supplier. The warranty period begins no earlier than the date when the goods have been handed over to us or to the third party specified by us, at our designated delivery address or point of use. If acceptance procedures are required, the warranty period begins on the date of acceptance as stated in our written declaration of acceptance. The warranty periods shall be extended by the duration that the defective good cannot be used in the intended manner due to the defect. In the event of subsequent fulfilment (Nacherfüllung), the original warranty period shall begin anew for the replacement or newly delivered goods or parts.
(7) Acknowledgement of receipt or acceptance of supplied goods does not release the Supplier from his warranty obligations, even if we are aware of a defect.
(8) Approval of drawings submitted to us by the Supplier does not release the Supplier from his warranty obligations.
(9) The Supplier will indemnify us against any and all claims, on whatever grounds in law, which third parties may bring against us based on defects of the Supplier’s goods, and will reimburse our necessary costs incurred in asserting our rights, including but not limited to reasonable costs of legal representation. The afore-said reimbursement also includes the costs of any precautionary recall campaign insofar as such campaign is necessary in our customers’ interests or to protect third parties according to our due discretion. The Supplier has to reimburse us for the costs of such recall campaign even after expiry of the warranty period, if we have carried out the recall due to a respective order issued by public authorities or in order to prevent risks to the life and health of the product users or third parties (innocent bystanders).
(10) The Supplier may not alter the goods without our express written approval once contracts are signed or during the delivery period, even the most minor changes, and even if our specifications, dimensions, analyses, formulae, production methods etc. as prescribed and/or agreed with the Supplier in each case are still adhered to. No such variations may be made until we have given our consent in writing. Should the Supplier fail to meet these obligations through fault on his part, he will be liable for all our costs and those of third parties incurred in examinations, obtaining expert opinions, additional calculations, reprocessing, replacement supplies etc.
(11) If the Supplier intends to change its production processes with regard to future deliveries, including changes to the composition or features of the goods, the place of manufacture, the suppliers of materials or primary products or the procedure or devices used to examine the goods, or if the Supplier intends to carry out any other changes that are relevant to the use of the goods either by us or by our customers, the Supplier shall inform us within good time – at the latest, however, 3 months in advance – in writing.
(12) The Supplier will also insure himself against all product liability risks with sufficient cover and furnish proof of that insurance to us on demand.
Section 7 Third-party rights
(1) If any royalties have to be paid for the right to use the supplied goods, also in combination or interaction with other items, these royalties shall be borne by the Supplier.
(2) The Supplier warrants that all goods supplied – also in combination or interaction with other items – are free of intellectual property rights of third parties and, in particular, that neither the supplies or services nor the use of the goods supplied or the services rendered infringe any patents or other third party intellectual property rights within the Federal Republic of Germany.
(3) If third-party intellectual property is infringed by delivery or performance by the Supplier and/or by the use of the goods, the Supplier is obliged first and foremost to ensure that the infringement is remedied, either by procuring the rights or by modifying the supplied good or by supplying a modified good, providing this is reasonable and acceptable for us.
(4) Not affecting sub-section (3) above, the Supplier will indemnify us against any claims by third parties for any breaches of intellectual property rights and will bear any and all costs we incur on this account. This afore-said obligation does not apply if we conclude agreements with the third party in respect of such claims, in particular if we conclude a settlement agreement, without the Supplier’s consent.
(5) Sub-sections (1) – (4) of this Section 7 shall apply accordingly for such countries to which the goods delivered will be exported to the Supplier’s knowledge.
Section 8 Invoices and payments
(1) Invoices shall be issued no earlier than the date on which the good, including all contractually relevant documents, is delivered and/or services are rendered. Invoices must be sent separately by post; they may not be enclosed with the goods.
(2) Invoices must correspond to our order in their wording and as regards the chronological order of the listing of the goods. Any additional services and supplies must be separately itemised in the invoice with a reference to our respective prior written order.
(3) Unless otherwise agreed, payments shall be made at our option within 30 days net cash without deductions or within 14 days with deduction of a 3% discount. The term of payment shall not start before the date of our receipt of the proper invoice and all requisite documents (e.g. material inspection certificate). Delays in payment due to the Supplier failing to issue invoices in accordance with this Section 8 are the responsibility of the Supplier.
(4) Even if we were aware, at the time of paying the purchase price, that the supplied goods are defective, settlement of the invoices may not be construed as a waiver of any claims arising from the goods being defective.
(5) We may set off amounts due to the Supplier against any amounts due to our affiliated companies. The Supplier may not set off his own claims unless his counterclaims are judicially determined as nonappealable, are undisputed or are acknowledged by us. He may not exercise any right of retention unless his counterclaim is due and based on the same contractual relationship.
(6) The Supplier may not, without our prior consent in writing (which we will not refuse unreasonably) assign his claims against us to any third parties or engage any third parties to collect them. If the Supplier for his own part is supplied subject to an extended reservation of title (verlängerter Eigentumsvorbehalt), our consent for the purposes of the preceding clause is deemed to be given. Should the Supplier in violation of sentence 1 hereof, assign his claims to a third party without our consent, that assignment will be binding nonetheless, although we may pay, in our own election, the Supplier or the third party with exonerating effect.
Section 9 Goods, tools or other production equipment supplied by us
(1) The Supplier shall examine any goods supplied by us without undue delay upon delivery by us or by our supplier and, should there be a defect, notify us without undue delay. Should the defect become apparent at a later point in time, such notification shall be made without undue delay after the defect has been discovered. If the Supplier fails to perform these obligations, he must indemnify and hold us harmless from and against any damage or losses resulting from such failure (e.g. forfeiture of warranty claims against our own supplier). Furthermore, if the Supplier breaches the aforesaid examination and notification duties, he will be liable to us for any defects of the goods he supplies to us, even where such defects are due to defects of the goods supplied by us.
(2) The Supplier shall mark all goods supplied by us as our property and store these goods separately from other products so that the goods supplied by us can be identified as such beyond any doubt for the entire duration of their storage and, where technically feasible and reasonable for the Supplier, also during their processing. The Supplier is liable to us in case that any goods we provide to him get lost or damaged. The Supplier shall insure the goods provided by us against fire, water, theft and similar causes of loss at his own expense at minimum at their market value. The Supplier shall inform us without undue delay should any of the goods supplied by us be impaired in law or fact.
(3) All processing of materials provided to the Supplier by us shall be performed for us. All such materials remain our property while being worked and processed. The parties agree that we shall acquire coownership in the goods made using materials or components provided by us in proportion of the value of the goods supplied by us to the total value of the product. The same applies should we lose title by way of mixing or mingling.
(4) All tools and other production equipment which we provide to the Supplier for the manufacture of the goods to be supplied to us remain our property. If and to the extent that the Supplier purchases and/or manufactures tools or other production equipment required specifically for the manufacture of any parts or goods to be supplied to us and we pay the price for such tools or equipment in whole or in part, the possession and ownership of such tools or equipment shall pass to us upon payment by us. It is agreed that the Supplier shall possess the tools and production equipment on our behalf as a borrower. The Supplier shall have no right of retention in respect of such tools and production equipment. Any tools and other production equipment owned by us shall be marked appropriately and clearly as our property. The Supplier shall insure any such items at its own expense at replacement value against damage by fire, water, theft and similar types of damage. The Supplier hereby assigns to us any and all claims for compensation that may arise from such insurance; we hereby accept the assignment. The Supplier must notify us without undue delay of any legal or actual impairment of the tools or other production equipment provided by us.
(5) The Supplier may use the tools and other production equipment referred to in sub-section (4) above solely for the purpose of manufacturing the goods ordered by us. Such tools and production equipment may only be scrapped or provided to third parties after we have given our prior consent in writing thereto.
(6) The Supplier undertakes to handle and store the tools and other production equipment referred to in sub-section (4) above diligently and with due care. The tools and production equipment shall be serviced and maintained as agreed between us from time to time.
(7) If we incur losses due to the Supplier acting in breach of his duties as stipulated in sub-sections (2) – (6) above, the Supplier shall compensate us for such losses, unless the Supplier is not responsible for the breach of duty.
Section 10 Drawings/documents, intellectual property rights
1) All documents, drawings, samples, etc. that we provide to the Supplier for a quote or for production of the goods to be delivered shall remain our property; we reserve our copyright and all other intellectual property rights in such items. The Supplier is not authorised to use any information, ideas or other know-how contained therein for purposes other than the preparation of a quote for us or the performance of the contract – unless the information, ideas or other know-how were known to the Supplier already before he received them from us or the Supplier lawfully obtained them otherwise at a later point in time. Such documents, drawings, samples etc. along with all copies thereof, shall be handed over to us without delay at our request, and of the Supplier’s own accord if no order ensues, respectively after completion of an order. The Supplier shall have no right of retention in respect thereof. Sentences 1 and 2 above shall apply accordingly for the drawings and other documents that are drafted by the Supplier in accordance with our special instructions.
(2) The Supplier shall treat the documents referred to in sub-section
(1) above as well as all other received information relating to the order or to the execution of the order as business secrets – also after completion of the order – and shall treat them accordingly as confidential. They may not be disclosed to any third parties without our prior written approval. We shall treat any documents and information that we receive from the Supplier in connection with the order or execution of the order as business secrets if we are explicitly notified of the need to keep them secret. The duty to observe secrecy shall not apply if the content of the documents are facts in the public domain or which later enter the public domain without this being due to a breach of duty by the Party to maintain secrecy.
(3) The Supplier shall provide us, with his offer, with any essential drawings and documents that are required to discuss the technical details of the goods to be delivered. However, such discussion or other form of involvement in design work on our part shall not release the Supplier from his exclusive responsibility for the product or from any ensuing warranty or other obligations.
(4) The Supplier shall provide us with all drawings and documents that we or our customers require to install, operate, service, maintain or repair the supplied good, in due time – at the latest on delivery –of his own accord and free of charge.
(5) If we incur losses due to the Supplier acting in breach of his duties as stipulated in this section 10, the Supplier shall compensate us for such losses, unless the Supplier is not responsible for the breach of duty.
Section 11 Securing of supply
(1) If the goods to be delivered are goods especially developed for us, in particular if we have directly or indirectly contributed to the costs of development and/or the manufacturing materials, the Supplier warrants to supply us at all times with these goods according to our needs and to accept orders from us as long as we require these goods. We will provide the Supplier in good time with the anticipated supply volume deducted from the forecasts of the requirements of our customers. Unless explicitly agreed otherwise,the Supplier shall not have the right to a specific quantity to be bought by us.
(2) The Supplier hereby undertakes to ensure the supply of the necessary spare parts for at least 15 years after delivery of the goods – also after the end of series production of the goods. If the Supplier realises within this period that it will no longer be possible to ensure this, the Supplier must inform us about the end of the supply possibility without undue delay and, if the Supplier is unable to offer us any other reasonable possibility of supply, to provide us with the opportunity of procuring an all-time requirement 12 months before the production is stopped.
Section 12 Quality assurance and control
(1) The Supplier must implement an appropriate state-of-the-art quality assurance system, and must provide us on request with proof of such implementation. In case we should deem this to be necessary, the Supplier shall conclude with us a quality assurance agreement to this effect.
(2) If special quality checks have to be performed as regards the goods to be delivered during acceptance procedures, the personal costs of acceptance shall be borne by us and the material costs by the Supplier unless explicitly agreed otherwise.
(3) The date of completed production shall be notified to us in a binding manner no later than one week before acceptance procedures are to be conducted.
(4) If a second visit by the Quality Officer is necessary due to established defects, the personal costs for such checks shall be borne by the Supplier, too. The same principle shall apply if the supplied good is not presented to the Quality Officer on the date specified in sub-section (2) above.
Section 13 Certificate of origin, documentary evidence relating to sales tax law; export restrictions
(1) Upon delivery, at the latest, the Supplier shall provide us at his own expense with all the required certificates of origin; these certificates shall contain all necessary information and be signed. This shall apply accordingly to any documentary evidence for sales tax purposes that may be required in each particular case in connection with foreign and intra-Community supplies.
(2) The Supplier must inform us without undue delay if a delivery – or any part thereof – is subject to export restrictions under German or any other applicable law. If and to the extent that an export licence is required for a delivery, obtaining such licence shall be the Supplier’s responsibility.
Section 14 General provisions
(1) If the Supplier is unable to meet his obligations on time when due or stops payments or insolvency proceedings (including preliminary insolvency proceedings) are instituted against the Supplier’s assets, we shall have the right to rescind the contract with respect to such part as has not yet been performed by the Supplier. This rescission right must be exercised by us within one month after we obtain knowledge of any of the aforesaid circumstances.
(2) These terms and conditions and all legal relations between us and the Supplier are governed by the laws of the Federal Republic of Germany, under exclusion of the Vienna Convention on Contracts for the International Sale of Goods (CISG).
(3) If the Supplier is a registered merchant or – without being registered – has full commercial capacity within the meaning of the German Commercial Code, the sole place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship is Bedburg, Germany. However, we also have the right to sue the Supplier at any other place of competent jurisdiction.
(4) The place of performance for all contractual obligations is Bedburg, Germany, respectively our specified point of use.
(5) Should any provision of these terms and conditions, or any provision in other related agreements be or become invalid or unfeasible, this shall have no impact on the validity of all other provisions or agreements. The invalid or unfeasible provision shall be replaced by one that comes closest to the business intentions the Parties had when concluding the affected agreement. The same principle shall apply in the case of a contractual loophole.
SANY Europe GmbH
Sany Allee 1
TERMS AND CONDITIONS OF SALE AND DELIVERY
As of: October 2011
Section 1 Scope
1. All of SANY Europe GmbH’s (hereinafter also referred to as “SANY”) deliveries, services and offers shall be made exclusively on the basis of these General Terms & Conditions of Delivery. These General Terms & Conditions of Delivery shall form part of all agreements entered into between SANY and its contractual partners (hereinafter also referred to as “Purchaser”) with regard to deliveries or services offered by SANY. They shall also apply to future deliveries, services or offers to the Purchaser, even if notbeing referred to explicitly.
2. Purchaser’s general terms & conditions shall not apply unless SANY has explicitly agreed in writing that they shall apply. SANY’s General Terms & Conditions of Delivery shall also apply if SANY unconditionally effects deliveries to the Purchaser even aware that the Purchaser’s terms and conditions conflict with or deviate from its own.
Section 2 Conclusion of contract and delivery of products
- All offers made by SANY are subject to change without notice and non-binding unless explicitly designated as binding or specifying a fixed timeframe for acceptance. No contract shall enter into force until SANY has provided a written or electronic order confirmation. The written or electronic order confirmation shall determine the scope of delivery. All ancillary agreements or amendments have to be confirmed in writing or electronically by SANY to be valid.
- SANY reserves the right to modify the design or shape of the delivery items to be delivered unless (i) such modifications substantially alter the delivery items to be delivered and are unacceptable to the Purchaser or (ii) SANY and the Purchaser have explicitly agreed on the binding character of data provided by SANY as regards the delivery items (e.g. weight, dimensions, performance capacity, consumption of operating materials, operating costs, utility values, load capacity, tolerances, technical data) or of depictions of the same (e.g. drawings, illustrations). The aforementioned information from SANY relating to the delivery items to be delivered or services to be provided – as well as respective depictions are neither guaranteed nor do they constitute an agreement on assured properties unless explicitly confirmed otherwise by SANY in writing or electronically. If no such written or electronic confirmation is provided by SANY, the aforesaid information merely constitutes a non-binding description or qualification of the delivery items or services from which deviations pursuant to the first sentence of this section II. 2 are admissible. If SANY and the Purchaser have explicitly agreed on the binding character of specific data, SANY may only make modifications to delivery items to be delivered or services to be rendered if such modifications are required under mandatory statutory provisions and are acceptable to the Purchaser. If the modifications are unacceptable, the Purchaser is entitled to withdraw from the contract. Any further claims shall be excluded.
- SANY retains all rights, in particular title and copyright, to all documents, drawings, illustrations, specifications, samples and other similar items which are provided to the Purchaser. The Purchaser may use them exclusively within the bounds of the purpose provided for in the relevant contract. They have to be treated as strictly confidential and may not be made available to third parties without SANY’s prior explicit written consent.
- SANY is not obliged to check whether any specifications contained in the order of the Purchaser on the delivery item or its design are correct or complete and are suitable for the intended use of the Purchaser.
- SANY is not obliged to inspect any materials which are supplied by the Purchaser for the manufacture of the delivery item for defects.
Section 3 Prices and payment
- The prices agreed upon between SANY and the Purchaser shall apply to the scope of the delivery or services specified in the order confirmation. Any additional or special deliveries or services will be charged separately. Unless explicitly agreed otherwise, the prices shall be in Euro and EXW (Incoterms 2010), exclusive of packaging and VAT. Customs duties, taxes, charges and similar levies which SANY is required to pay will be charged separately. Any services (e.g. assembly work, initial operation) requested by the Purchaser from SANY which shall be provided during the delivery shall be invoiced separately by SANY on the basis of the service price list, as amended from time to time, plus expenses, travel costs and other expenses.
- Orders for which the parties have agreed that the time of delivery shall be later than four months after conclusion of the respective contract or orders which are executed later than four months after conclusion of the respective contract for reasons within the Purchaser’s responsibility, shall be invoiced on the basis of SANY’s price list effective on the date of delivery.
- In case the raw material prices relevant for the products ordered should increase substantially (i.e. by at least 10%) after SANY’s submission of an offer or confirmation of an order or conclusion of a framework agreement providing for fixed prices, SANY shall be entitled to increase the price by a reasonable amount. Purchaser’s justified interests shall be duly taken into account in this process, particularly with regard to possible commitments of the Purchaser relating to the onward delivery of the delivery items at a fixed price. The calculation of the price increase for the affected raw materials shall be based on publicly available sources. If relevant cost factors – such as in particular costs of energy, wages, transportation and insurance – should increase substantially (i.e. by at least 10%) after SANY’s submission of an offer or confirmation of an order or conclusion of a framework agreement providing for fixed prices, SANY shall be entitled – applying the provision above – to increase the prices by a reasonable amount mutatis mutandis. Purchaser’s interests shall be duly taken into account in this process, particularly with regard to possible commitments of the Purchaser relating to the onward delivery of the delivery items at a fixed price.
- All invoiced amounts shall be payable at the latest 14 days after the invoice date, in case of the delivery of spare parts at the latest 8 days after the invoice date, cash without any deductions free pay office SANY unless expressly otherwise agreed upon in writing. In the latter case, the date on which the payment is credited to SANY’s bank account is decisive for timely payment.
- If the Purchaser does not effect payment by the due date, and provided that the Purchaser is a merchant in the sense of the German Commercial Code (HGB), the outstanding amounts shall be subject to interest of 5% p.a. as of the due date; in the event of default of payment, the Purchaser shall pay default interest at the rate of eight percentage points above the base lending rate (Basiszinssatz). SANY reserves the right in each case to prove that higher damages have been incurred due to the default of payment.
- The Purchaser is only entitled to set off own claims if its counterclaims have been judicially determined as non-appealable, are undisputed or have been acknowledged by SANY. The Purchaser may only exercise a right of retention if its counterclaim is due and arises from the same contractual relationship.
- SANY is entitled to insist on advance payment or the rendering of sureties by the Purchaser for outstanding deliveries if it becomes aware of circumstances which may substantially impair the Purchaser’s creditworthiness and, as a result of which, at SANY’s due discretion, jeopardise payment of the Purchaser’s accounts payable and due at SANY in connection with relevant orders, including accounts payable and due in respect of individual orders to the extent these orders are based on the same legal relationship.
- Unless explicitly agreed upon otherwise with the Purchaser, all payments must be made in € (Euro) and exclusively to SANY.
Section 4 Delivery and delivery period
- If SANY explicitly warrants or has agreed on a fixed delivery and assembly period or date, the order confirmation shall govern the applicable delivery and assembly periods. In any other cases all periods and dates mentioned by SANY shall be understood as non-binding. The delivery period shall not commence until the Purchaser has furnished all documents, permits and approvals to be procured (if any) and until any agreed advance payments or sureties have been received. The delivery deadline is met if prior to its expiry the delivery items were prepared for shipment at SANY’s premises and readiness for dispatch has been notified to the Purchaser. SANY shall be entitled to refuse to hand over the delivery items to the carrier if the load cannot be secured pursuant to the respective German VDI Guidelines on load security as a result of the condition of the transport vehicle provided by the carrier or if SANY does not consider the transport vehicle to be roadworthy pursuant to German Road Traffic Licensing Regulations (StVZO) or any other national laws relevant at the time. If SANY refuses to hand over the delivery items to the carrier for the aforementioned reasons, the provisions set forth in sections V. 2 and V. 3 below shall apply accordingly.
- Partial deliveries shall be admissible to a reasonable extent if such delivery can be used by the Purchaser for the contractually agreed purpose, if the delivery of the remaining delivery items is warranted and if the Purchaser will not incur any additional costs or expenses as a result.
- If a delivery, after readiness for shipment has been notified, is postponed at the Purchaser’s request or for other reasons within the Purchaser’s responsibility, SANY shall be entitled to charge costs of storage in the amount of 0.5% of the price of the delivery items per month or part thereof, however not exceeding 5% in total. The right of each party to prove that higher or lower damages have incurred remains unaffected hereof. If SANY can prove higher damages any such costs of storage paid by the Purchaser shall be deducted from these claims for damages.
- The delivery of the delivery items to the Purchaser shall be subject to SANY itself being supplied properly and in due time by its own suppliers.
- If SANY is in default of delivery or unable to effect delivery at all, the Purchaser shall be entitled to withdraw from the contract in accordance with statutory provisions. Claims for damages for default of delivery or impossibility of performance shall only be due to the purchaser under the provisions of section VIII. of these General Terms & Conditions of Delivery.
- If deliveries are delayed due to force majeure, SANY shall have the right to extend the delivery period for the duration of the event causing the delay plus a reasonable time for run-up or to cancel the contract due to the unperformed part of the contract either in part or in full. The same shall apply in the event of strikes, lockouts, political unrest and unforeseen circumstances such as interruptions of operations which prevent SANY from effecting timely delivery despite making reasonable efforts to do so. This shall furthermore apply if the aforementioned events affect a supplier of SANY or occur at a time at which SANY is already in default of delivery. SANY will inform the Purchaser without undue delay in case such an event of force majeure pursuant to this provision occurs. The Purchaser may request SANY to declare within a period of six weeks whether it intends to cancel the contract due to the non-performed part of the contract in part or full or whether it will effect delivery within a reasonable additional period of time. If SANY does not respond to the Purchaser’s request within the aforementioned timeframe, the Purchaser may withdraw from the part of the contract which has not been fulfilled yet.
Section 5 Packaging, shipment, passing of the risk and Purchaser's acceptance of the delivery items
- Unless otherwise explicitly agreed upon, SANY shall select the type of packaging to be used at its sole discretion.
- The risk shall pass on to the Purchaser, at the latest, when the delivery items are handed over to the carrier commissioned by the Purchaser. The same shall apply in case of partial deliveries. Purchaser shall be in default of acceptance if, having received notification from SANY that the delivery items are ready for dispatch, it refuses to take over the delivery items on the specified date or does not pick-up or commission a carrier to pick up the delivery items on the specified date.
- If the Purchaser is in default of acceptance of the delivery items or fails to comply with other duties to cooperate, SANY shall be entitled to demand compensation for any damages incurred, including any additional expenses resulting therefrom. In this case, the risk of accidental loss or deterioration of the purchased item passes on to the Purchaser. After expiry of an appropriate additional period of time for acceptance set by SANY, SANY shall be entitled to either otherwise dispose of the delivery items or to effect delivery to the Purchaser within a reasonably prolonged period of time.
- The delivery items will only be insured against theft, breakage, transportation, fire and water damage or other insurable risks at the explicit request and expense of the Purchaser.
- Without prejudice to its rights under section VII. of these General Terms & Conditions of Delivery, the Purchaser shall be obliged to accept the delivery items delivered even in the event that the items show remediable defects and may only be returned to SANY under the condition precedent that the Purchaser is entitled to withdraw from the contract in accordance with section VII.
- The Purchaser shall be liable according to the statutory provisions for any damages to the delivery item for which it is responsible, which are caused before the final acceptance of the delivery item by the Purchaser during the testing of the delivery item or during any inspections for final acceptance/approval carried out by the Purchaser.
Section 6 Retention of title
- SANY reserves title to the delivery items until any and all claims against the Purchaser arising from the business relationship have been settled, including future claims arising from agreements concluded concurrently or at a later time. This shall also apply if individual or all of SANY’s claims are included in a current account and the balance has been stricken and accepted.
- If SANY withdraws from the contract due to the Purchaser’s breach of contract, in particular due to the Purchaser’s delayed payment, the Purchaser shall bear all costs associated with SANY’s repossession of the supplied delivery items. In the event of seizures or other interventions of third parties, the Purchaser shall immediately notify SANY in writing, provide all necessary facts and inform the third party about the existing ownership situation. The Purchaser must not pledge or transfer title of the delivery items as collateral. The Purchaser shall handle the supplied delivery items with due care. In particular, the Purchaser shall insure the delivery items at replacement value against damage by fire, water and theft at its own expense.
- The Purchaser shall be entitled to resell the supplied delivery items in the ordinary course of business. However, it shall assign to SANY any and all future claims and ancillary rights arising from the resale of the delivery items against the Purchaser or a third party, irrespective of whether the delivery items to which title has been retained are resold without or after further processing. The Purchaser shall remain authorized to collect these claims, even after the assignment. SANY’s authority to collect claims itself remains unaffected hereby. However, it shall undertake to refrain from collecting claims for as long as the Purchaser meets its payment obligations, is not in default of payment and, in particular, has not suspended payments and not filed for insolvency proceedings. SANY is entitled to demand that the Purchaser informs it about the assigned claims and the respective debtors, provides all information necessary for the collection of the debts, hands over the necessary documents and informs the debtor of the assignment.
- The processing or conversion of the delivery items by the Purchaser shall always be performed on SANY’s behalf. The Purchaser’s expectant right to the delivery items shall continue to apply to the processed or converted items. If the delivery items to which title has been retained are processed or inseparably combined with other items which are not owned by SANY, SANY shall acquire co-ownership of the new items in proportion to the value of the delivery items for which title is retained to the processed items at the time of processing. If the delivery items are processed in such a way that the Purchaser’s items form the main part of the processed item, it is agreed that the Purchaser transfers proportionate coownership to SANY. The Purchaser shall store such items of sole or co-ownership for SANY. The new combined or processed item shall be subject to the same provisions as are delivery items to which title is retained.
- The Purchaser shall also assign all claims against third parties arising from the combination of the delivered delivery items with a building or real estate as collateral for SANY’s claims.
- If so requested by Purchaser, SANY shall release the respective collateral if the realisable value of such, taking into account usual bank reductions of valuation, exceeds the claims for which collateral have to be furnished by more than 20%. In this calculation, the purchase prices shall be assumed for delivery items and the nominal value for claims.
Section 7 Claims for defects
- The Purchaser’s claims based on defects of the delivery items require that it has properly complied with its statutory obligations to inspect and complain. Purchaser is required to provide notice of defects in writing to SANY, precisely specifying the type and extent of the defect so that SANY can examine whether the notice of defect is justified. Furthermore, Purchaser shall inspect the supplied delivery items immediately after receipt for damages during transportation. The Purchaser shall note any damage discovered thereby on the bill of lading, such objection being countersigned by the carrier, and notify SANY respectively in writing. Upon receipt of a written objection from the Purchaser, SANY is entitled to have the alleged defective delivery item examined on the site of the Purchaser at its own expense by an independent expert and to take part in the examination with its own employees. If and insofar the examination proves that the alleged defect to the delivery item does not exist, the Purchaser shall bear the costs of the examination.
- If the supplied delivery items are defective, SANY shall be entitled at its own discretion to either remedy the defect or supply a replacement item. SANY shall pay all costs associated with subsequent performance in compliance with the statutory law. If the Purchaser asserts a justified claim for costs against SANY in this connection as a result of the deployment of own employees, delivery items or devices, Purchaser’s claim for the reimbursement of such costs shall be limited to its own costs (Selbstkosten). If the costs associated with subsequent performance should increase due to the fact that the delivery items have been brought to a place other than the agreed place of delivery at the request of the Purchaser, the Purchaser shall bear all resulting additional costs. The supply of a replacement item by SANY shall require that the Purchaser returns the defective delivery item to SANY in exchange (Zug-um-Zug) and that it pays compensation for the use of the same.
- If SANY is not willing or able to remedy the defect or supply a replacement item, if it refuses to do so or exceeds reasonable time limits for reasons within its own liability, or if it fails at least twice to remedy the defect for other reasons, Purchaser shall be entitled at its discretion to withdraw from the contract or demand an appropriate reduction of the purchase price. In the event of a withdrawal, SANY shall be obliged to refund the purchase price paid only (i) in exchange for the return of the defective delivery item and (ii) payment of compensation for the use of the same by the Purchaser.
- Purchaser shall not be entitled to withdraw from the contract due to the delivery of defective delivery items if it is not able to return the performance received and this is not due to the fact that the nature of the performance makes this impossible, the impossibility is within SANY’s responsibility or the defect did not become apparent until the item had been processed or converted. In case of delivery of defective delivery items or of partial performance, the Purchaser shall only be entitled to withdraw from the entire contract or demand compensation for damages in lieu of performance in accordance with the following provisions if it has no interest in the performance provided, judged by objective criteria.
- For essential third party products, e.g. the truck chassis to which the delivery items are mounted in case SANY sells a complete vehicle to the Purchaser, SANY’s liability shall be limited to the assignment of the claims to which SANY is entitled in relation to the supplier of the third party product. If the claim against the supplier of the third party product is not honoured for reasons which are not within the Purchaser’s responsibility (e.g. due to the supplier’s insolvency), the Purchaser shall be entitled to those claims for defects against SANY which are provided for in the provisions of this section VII.
- For used goods, any claims for subsequent performance, for rescission of contract and for reduction of the purchase price due to defects shall be excluded, unless SANY fraudulently concealed the existence of defects or provided a guarantee for any features of the used goods. Provided there is no specific evidence that the used goods could be defect, SANY is only obliged to make reasonable, professional visual inspections of the used goods before they are sold and to check that they generally work. No further inspections shall be carried out by SANY.
- The Purchaser shall be entitled to claims for damages only under the prerequisites set by section VIII. of these General Terms & Conditions of Delivery.
- Any claims for defects of the delivery items are excluded in case the Purchaser reworks or engages a third party to rework the delivery items without SANY’s consent and this unreasonably complicates the process of remedying the defect or renders it impossible. In any case, the Purchaser is required to pay any resulting additional costs in connection with remedying the defect. No liability is accepted for damage resulting from the following:
- unsuitable or improper use, violation of SANY’s instructions of use;
- incorrect assembly, commissioning or operating by the Purchaser or a third party, unless attributable to erroneous assembly or operating instructions provided by SANY;
- modifications to the delivery items by the Purchaser or a third party;
- natural deterioration/wear and tear, unless explicitly guaranteed otherwise by SANY;
- incorrect or negligent handling or storage;
- using unsuitable consumables, replacement materials;
- chemical, electrochemical, mechanical, atmospheric or electrical effects, unless these are the fault of SANY;
- incorrect or incomplete documentation, in particular samples or drawings which the Purchaser has provided to SANY for the manufacture of the delivery item or that SANY had to adhere to in the manufacturing according to the Purchaser’s requirements. SANY is not obliged to check the Purchaser’s documents with regard to whether they are correct or complete;
- incorrect/defective materials supplied by the Purchaser for the manufacture of the delivery item;
- inaccurate, incomplete or unsuitable requirements from the Purchaser with regard to the specification or design of the delivery item.
- The statute of limitations for claims for subsequent performance, for rescission of contract and for reduction of the purchase price due to defects of the delivery items is one year starting from the passing of the risk. Deviating from the above, the statutory period of limitation shall apply in cases of defects of a building or of delivery items supplied which are typically used for building construction and which have caused a defect of such building. Claims for damages which are based on defects of the delivery item shall become time-barred according to the provisions of section VIII. 11 below.
Section 8 Claims for damages
- SANY is liable for damages, based on whatever legal grounds, in particular impossible, delayed, defective or incorrect delivery, breach of contract, breach of obligations in contractual negotiations or tort, exclusively as specified in this section VIII. Otherwise any liability for damages shall be excluded.
- SANY shall be liable under the statutory regulations for damages caused by wilful acts or gross negligence of its legal representatives and executives, for injury to life, body and health, for explicitly guaranteed features of the delivery items and in accordance with the German Product Liability Act.
- In addition SANY shall be liable for
- damages resulting from a slight negligent breach of cardinal obligations (so called “Kardinalpflichten”) on the part of its legal representatives, executives, employees or other vicarious agents;
- damages caused by gross negligence or wilful acts on the part of its non-managerial employees or other vicarious agents without the breach of cardinal obligations. Cardinal obligations in the aforementioned sense shall be such obligations which are essential to the proper performance of the contract and which contractual partners may typically expect to be met.
- SANY’s liability for damages as specified before in section VIII. 3 shall be limited to damages that are typical and foreseeable under the contract at hand.
- SANY’s liability for damages as specified before in section VIII. 3 is excluded as far as the Purchaser has effectively limited its own liability against its customers. The Purchaser shall undertake its best efforts to agree limitations on liability to the extent admissible by law – also in favour of SANY – with its customers. 5
- To the extent SANY is liable under section VIII. 3 above, its liability for indirect or consequential damages which result from defects of the delivery items shall be restricted to such damages that can be typically expected in the course of the customary use of the delivery items.
- In no event shall SANY be liable for loss of profits.
- If SANY provides technical information or advice, which is not part of SANY’s contractual undertakings, it shall be provided free of charge and under exclusion of any liability.
- In case the Purchaser intends to assert a claim against SANY in accordance with the preceding provisions, it shall promptly notify SANY hereof, provide comprehensive information and consult with SANY. Purchaser shall give SANY the opportunity to examine the case of loss. The parties to the contract agree to consult each other on the measures to be implemented, particularly in settlement negotiations.
- The provisions excluding warranty as specified in section VII. 8 of these General Terms & Conditions of Delivery shall apply accordingly.
- The statute of limitations for claims for damages due to a defective delivery is one year starting from the passing of the risk. The limitation period for claims for damages due to the violation of other contractual duties is one year starting from the end of the year in which the claim arose and the Purchaser gained knowledge of the circumstances giving rise to the claim and of the debtor or should have done so in the absence of gross negligence. Deviating from the above, the statutory limitation period shall apply in the event of death, bodily injury or damage to health, damages according to the German Product Liability Act, as well as any damage caused by fraudulent behaviour, wilful misconduct, gross negligence or through the negligent breach of so-called cardinal obligations, as defined in section VIII. 3 of these General Terms & Conditions of Delivery, by SANY’s legal representatives, managerial staff or vicarious agents, as well as in the case of defects of a building or of delivery items supplied which are typically used for a building and have caused a defect of such building.
Section 9 Industrial property rights
- In the event that software is contained in the delivery item and unless otherwise expressly agreed in writing by the parties, SANY shall grant to the Purchaser a non-exclusive right of use to the software only. This right of use to the software shall only relate to the relevant individual delivery item and may only be used in connection with such. No rights to process or change the software or to utilise the know-how contained therein shall exist. If the delivery item contains software from third parties, their licensing terms shall apply additionally.
- Unless expressly agreed otherwise, SANY warrants only that the goods do not infringe any third-party industrial property rights (hereinafter: Property Rights) in the country where the place of delivery is located, unless SANY has knowledge of Property Right infringements at the Purchaser’s place of business or in such other country where the delivery item will be taken according to the Purchaser’s written notification to SANY. If any third party asserts legitimate claims against the Purchaser for Property Right infringements caused by products that were delivered by SANY and are used as agreed, SANY shall be liable to the Purchaser within the scope of the provisions stipulated in the first sentence above as follows:
- a) The Purchaser shall advise SANY in writing of any Property Right infringements that allegedly exist according to the third party without undue delay. SANY shall, at its own discretion and at its own expense, settle or defend these claims or settle the matter. For this purpose, the Purchaser grants SANY the exclusive authority to decide on the legal defence and settlement negotiations and the Purchaser shall additionally grant SANY any authorization that may be required in the particular case, including the right to delegate this authority.
- b) If the delivery constitutes a Property Right infringement, as defined in sentence 1 above, SANY shall remove the cause of the Property Right infringement within a reasonable period of time. For this purpose, SANY shall, at its own discretion, obtain at its own expense a right of use for the deliveries concerned, modify the delivery item in such a manner as to ensure that it no longer infringes the Property Right, or exchange the delivery item.
- c) If the removal of the Property Right infringement fails or cannot be carried out on reasonable conditions, or if the Purchaser cannot reasonably be expected to tolerate the removal of the Property Right infringement, the Purchaser shall have the statutory rights to either withdraw from the contract or reduce the purchase price. SANY’s obligation to pay damages shall be governed by section VIII. of these General Terms & Conditions of Delivery.
- d) SANY is not liable for third-party claims for Property Right infringements if and to the extent that they are due to particular requirements of the Purchaser, due to an application which SANY could not foresee or due to the fact that the delivery item is modified by the Purchaser or by an unauthorized third party or is used under conditions other than those agreed upon or recommended by SANY or is used together with products that were not supplied by SANY. As a general rule, SANY is not liable for third-party claims for Property Right infringements if and to the extent that the Purchaser is responsible for these infringements. Should any third party assert such claims against SANY, the Purchaser shall indemnify and hold SANY harmless from and against these claims.
- e) Furthermore, SANY is not liable to the Purchaser if the Purchaser acknowledges the infringement vis-à-vis the third party without SANY’s consent or, should the Purchaser discontinue the use of the product, fails to advise the third party that the discontinuation of use does not involve an acknowledgement of any Property Right infringement.
- In the event of a Property Right infringement, the provisions of sections VII. 2 and 5 above shall apply correspondingly.
- The limitation rules set out in sections VII. 9 and VIII. 11 above shall apply correspondingly.
Section 10 Export Regulations – prerequisites to be met for deliveries by SANY
Delivery by SANY shall be subject to the proviso that any necessary export permits have been granted and there are no other obstacles to the delivery items being exported by SANY as exporter/carrier or one of SANY’s suppliers as a result of any export or transportation regulations which have to be complied with.
Section 11 Final provisions
- If the Purchaser is a merchant or a legal entity under public law or a special fund under public law, the proper legal venue shall be Cologne, Germany. However, SANY shall also be entitled to bring an action against the Purchaser at any other given legal venue.
- As far as not expressly agreed otherwise in writing, place of performance for all obligations resulting from the business relationship shall be 50181 Bedburg, Germany.
- All deliveries shall be governed by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 is excluded.
- If any provision of these General Terms & Conditions of Delivery is found to be invalid, this shall not affect the validity of the remaining provisions. The contractual partners shall reach agreement on the replacement of the invalid provision with a substitute provision which comes closest to the originally intended economic purpose. This provision shall also apply if any gaps or omissions in these General Terms & Conditions of Delivery are discovered