General Terms and Conditions
General Sales, Lease, Supply and Payment Terms and Conditions of thyssenkrupp Infrastructure GmbH, Essen
1. These General Terms of Sale shall apply to all – including future – contracts concerning deliveries, services and other performances including contracts for work and services, consultations, proposals and other ancillary services, concluded between thyssenkrupp Infrastructure GmbH and any enterprise, legal person, public-law legal entity and public-law fund. Even if we do not expressly reiterate the exclusion of Purchaser’s purchase terms upon receipt, such terms shall not be deemed accepted.
2. Our offers are non-binding. Any verbal agreements, promises, undertakings and guarantees made by our staff in connection with the conclusion of any contract shall only become binding when confirmed by us in writing.
3. In case of doubt, the Incoterms, as amended, shall apply for any interpretation of terms of trade.
4. Any measurements, weights, illustrations, descriptions, assembly sketches and drawings indicated in sample books, price lists and other printed materials have been prepared to the best of our ability; they are however are only approximate and thus non-binding for us. The same applies to indications concerning the works. Models and drawings remain our property.
5. As far as contracts for work and services are concerned, “Purchaser” within the meaning of these Terms shall also be the “Orderer”.
1. The prices are quoted ex works or ex warehouse plus shipping and value added tax.
2. Unless otherwise agreed, such prices and terms shall apply as set forth in our price list valid at the time of conclusion of the contract. The goods are invoiced “gross for net”.
3. In cases of drop shipments, in particular ex works deliveries, we may establish the prices in accordance with the terms of the respective delivering plant’s price list valid on the day of delivery, unless we have expressly agreed on a fixed price.
4. If after no less than four weeks after conclusion of the contract, any charges or other third-party costs contained in the agreed price change or emerge, we are entitled to amend the price accordingly.
5. If circumstances arise due to changes in the commodities and/or economic situation that render the production and/or the purchase of the respective product significantly more expensive compared with the time the prices were agreed, we reserve the right to increase the agreed price for any then outstanding quantity. In such a case, Customer shall be free to cancel the orders affected by the price increase within four weeks of receipt of the respective notification. Furthermore, we are entitled to increase the agreed price if the delivery period is extended later for any of the reasons set forth in Section IV. 4., if the material or the design undergoes changes because the documentation provided and/or the instructions given by Purchaser did not match the actual conditions or were incomplete, or if we did not receive on time the information we needed to execute the order.
III. Payment and offsetting
1. Unless otherwise agreed or indicated in our invoices, the purchase price shall be due immediately upon delivery without any cash discount deduction and payable in such a way that we can dispose of the amount on its due date. Purchaser shall bear any payment transaction fees. Purchaser shall only have a right of retention and is only entitled to offsetting insofar as their counterclaims are undisputed or have been deemed legally final and absolute.
2. If it is not possible to dispatch or ship the goods from the point of dispatch on account of missing instructions or documents or if delivery is delayed for any other reasons for which we are not responsible, the full invoice amount shall be due for payment on the 15th day of the month following notification that the goods are ready for dispatch. In cases where a letter of credit has been opened, Purchaser is obligated to amend the terms of the letter of credit accordingly.
3. If the time allowed for payment is exceeded or in case of delay, we shall charge interest at a rate of 8% above the base interest rate of the European Central Bank, unless higher interest rates have been agreed. We reserve the right to claim further damages.
4. Purchaser shall enter into default no later than ten days after the due date and receipt of the invoice/payment statement or after receipt of the services.
5. As we have been authorized accordingly by the companies belonging to our group (§ 18 German Stock Corporation Act (Aktiengesetz; “AktG”)*), we are entitled to offset against any and all claims of Purchaser against us or any such group company, irrespective of their legal grounds. Offsetting shall also be admissible if payment in cash has been agreed on the one side and payment by bills of exchange or other methods on account of performance has been agreed on the other side. As applicable, these agreements may only refer to the balance amount. If the claims provide for different due dates, our claims in that respect shall become payable no later than on the date our liability falls due and shall be settled on a value date basis.
6. If it becomes apparent after conclusion of the contract that our payment claim is at risk due to Purchaser’s inability to perform, we are entitled to the rights under § 321 German Civil Code (Bürgerliches Gesetzbuch; “BGB”) (defense of uncertainty). In such a case, we are also entitled to accelerate all non-statute-barred claims arising from the current business relationship with Purchaser. In all other cases, the defense of uncertainty shall extend to all other outstanding deliveries and services arising from the business relationship with Purchaser.
7. Any cash discount agreed shall always refer to the invoice value less shipping costs and shall be granted only if any and all of Purchaser’s liabilities due at the time of its granting have been settled in full.
IV. Execution of deliveries, delivery periods and dates
1. Our duty to deliver is subject to the condition that our suppliers deliver correctly and on time, unless we have caused the incorrect or late delivery.
2. Information on delivery times is approximate. Delivery periods shall start with the date on which we confirm the order and shall apply only if all details of the order have been clarified and all obligations of Purchaser have been met in good time, e.g. the submission of all official certifications, the provision of letters of credit and guarantees or the making of advance payments.
3. The time when the goods are dispatched ex works or ex warehouse shall apply for the purpose of complying with the delivery terms and dates. If the goods cannot be dispatched in good time through no fault of our own, these terms and dates shall be deemed complied with on receipt of the notification that the goods are ready for dispatch.
4. In case of a force majeure event, we are entitled to postpone delivery for as long as the event prevails plus a reasonable start-up period. This shall also apply where such event occurs during an existing default. Force majeure events are defined as monetary, trade and other sovereign government actions, strikes, lock-outs, interruptions of operations where we are not at fault (e.g. due to fire, machinery and roll breakdown, shortage of raw materials and energy, effects of radioactive substances), obstruction of transportation routes, delay in import/customs clearance as well as any and all other circumstances which render delivery considerably more difficult or impossible, where we are not at fault. Whether such circumstances occur at our end, the delivering plant or any upstream supplier is irrelevant in this context. If the execution of the contract becomes unreasonable for either contract party due to the above-specified events, in particular where major portions of the execution of the contract will be delayed for more than six months, either party may terminate such portion of the contract that has not yet been executed.
V. Retention of title
1. We shall retain title in all goods delivered (goods subject to retention of title) until all payment claims have been fulfilled, including without limitation the respective balance claims that we are entitled to within the scope of the business relationship (reservation of balance) and the claims unilaterally established by the insolvency administrator through his/her choice of performance. This shall also apply to future and conditional claims, e.g. under acceptor’s bills of exchange, and to such cases where payments are to be made on specifically designated claims. As soon as all claims outstanding at the time of payment and covered by such reservation of balance have been settled in full, the reservation of balance shall expire.
2. Any reworking and processing of the goods subject to retention of title shall be realized for us as the manufacturers in accordance with § 950 BGB, without establishing any obligation on our part. The reworked and processed goods shall be deemed goods subject to retention of title within the meaning of no. 1. Where Purchaser processes, combines and mixes goods subject to retention of title with other goods, we are entitled to a co-ownership in the new item in proportion of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our title has expired as a result of combining or mixing, Purchaser shall hereby transfer to us their title to the new inventory or item in proportion to the invoice value of the goods subject to retention of title, and shall keep it in custody for us free of charge. Our co-ownership rights shall be deemed goods subject to retention of title within the meaning of no. 1.
3. Purchaser may only sell the goods subject to retention of title within the ordinary course of business at their regular terms and conditions and as long as they have not entered into default, provided that the claims arising from the resale will be assigned to us pursuant to nos. 4 through 6. Purchaser is not entitled to dispose of the goods subject to retention of title in any other manner.
4. The claims arising from the resale of the goods subject to retention of title are hereby assigned to us together with any and all collateral securities that Purchaser has acquired for such claims. They shall serve the purpose of securing to the same extent as do the goods subject to retention of title. If Purchaser sells the goods subject to retention of title together with other goods that we have not sold, the claim arising from the resale shall be assigned to us in the proportion of the invoice value of the goods subject to retention of title to the invoice value of the other goods sold. In cases where goods to which we have co-ownership pursuant to no. 2 are sold, a portion corresponding to our co-ownership share shall be assigned to us. If Purchaser uses the goods subject to retention of title for the purpose of performing a contract for work and services, the claim arising from the contract for work and services will be assigned to us to the same extent beforehand.
5. Purchaser is entitled to collect claims arising from the resale. Such collection authorization will terminate once we revoke it, at the latest, however, upon default in payment, upon failure to honor a bill of exchange or upon filing for the opening of insolvency proceedings. We shall use our right of revocation only where it becomes apparent after conclusion of the contract that our payment claims under this or other contracts concluded with Purchaser are at risk due to the latter’s inability to perform. At our request, Purchaser is obligated to immediately inform their customers of their assignment to us and to provide us with the documents necessary for collection.
6. It shall not be admissible to make assignments of claims arising from the resale, unless such assignments are made by way of genuine factoring that is notified to us and where the proceeds from such factoring exceed the value of our secured claims. Upon crediting of the proceeds from such factoring, our claims fall due immediately.
7. Purchaser is obligated to inform us of any attachment or other impairment by third parties without undue delay. Purchaser shall bear all costs for the lifting of the attachment or for returning the goods subject to retention of title, unless reimbursed by third parties.
8. We are entitled to take back the goods subject to retention of title and, for that purpose, access Purchaser’s business, as applicable, if
Purchaser is in default of payment or fails to honor a bill of exchange when due. The same applies if it becomes apparent after conclusion of the contract that our payment claims under this or other contracts entered into with Purchaser are at risk due to the latter’s inability to perform. Taking back the goods subject to retention of title shall not constitute withdrawal from the contract. The provisions of the German Insolvency Code (Insolvenzordnung) shall remain unaffected.
9. Where the invoice value of the existing collateral securities exceeds the secured claims including ancillary claims (interest, costs, and the like) by more than 50 percent in the aggregate, we are insofar obliged to release collateral securities of our choice upon Purchaser’s request.
VI. Qualities, measurements and weights
1. Grades and measurements shall be determined in accordance with the standards agreed, in the absence of any such agreement in accordance with the standards applicable upon conclusion of the contract or in the absence of such standards in accordance with standard trade practice. References to standards, such as DIN/EN or its elements, such as materials specification sheets, test certificates or test standards as well as information referring to grades, qualities, measurements, weights and usability do not constitute representations or guarantees any more than declarations of conformity, manufacturer’s declarations and the respective labels, such as CE and GS.
2. As far as the weights are concerned, the weighing performed by us or our upstream supplier shall apply. We are entitled to determine the weight without weighing in accordance with the standards (in theory) plus 2.5% (trade weight). We may also determine the weights in theory, without weighing, on the basis of the length and/or the surface area of the products, and in doing so, we may establish the measurements in accordance with acknowledged statistical methods. Where goods are calculated on the basis of weight, the numbers of units, bundles and the like as indicated in the dispatch notice are non-binding. Unless individual weighing is customary, the weight shall be determined on the basis of the overall weight of the consignment. Any deviation as compared to the arithmetic individual weights shall be distributed between them proportionately. Where it is down to Customer to obtain or prepare execution documents, they shall be responsible for the completeness, correctness and on-time provision thereof. In such cases Customer shall also be deemed to be Client and Contractual Partner of thyssenkrupp Infrastructure where delivery to a third party is agreed.
1. If an acceptance test is agreed, it may only take place at the delivering plant and/or our warehouse immediately upon notification of readiness for acceptance. The personal acceptance costs shall be borne by Purchaser, the functional acceptance costs shall be invoiced to Purchaser in accordance with our price list or the price list of the delivering plant.
2. If acceptance does not take place at all or in time without Purchaser being entitled to a right to refuse acceptance, we are entitled to dispatch the goods without their acceptance or store them at Purchaser’s expense and risk. If the acceptance refers to any performance under a contract for work and services, it shall be deemed given three days after the declaration of readiness for acceptance. If the commissioning takes place prior to the declaration of readiness for acceptance or prior to the expiration of the three-day period, the acceptance shall be deemed given upon commissioning.
VIII. Dispatch, transfer of risk, packaging, partial delivery
1. We shall determine the route and means of dispatch as well as the shipping company and the carrier.
2. If transportation on the intended route or to the intended destination within the intended period of time becomes impossible or considerably more difficult through no fault of our own, we are entitled to deliver via an alternative route or to an alternative destination; any additional costs incurred in this context shall be borne by Purchaser. Purchaser shall be given the opportunity to comment beforehand.
3. On transfer of the goods to a shipping company or a carrier, however, no later than when the goods leave the warehouse or the delivering plant, the risk, including the risk of a seizure of the goods, shall pass to Purchaser in all transactions, including prepaid and free deliveries. We shall only take out insurance on instruction and at the expense of Purchaser. Any unloading obligations and expenses shall be borne by Purchaser.
4. The goods shall be delivered unpacked and without protection against corrosion. Where this is customary trade practice, we deliver packed goods. We shall arrange for packaging, protective and/or transportation aids on the basis of our experience at Purchaser’s expense. These items shall be taken back at our warehouse. We shall not assume expenses incurred by Purchaser for returning the packaging or for disposing of it on their own.
5. We are entitled to make partial deliveries to a reasonable extent. We are entitled to reasonably exceed and fall below the delivery quantities agreed. Indicating an “approximate” quantity entitles us to exceed or fall below by, and correspondingly invoice, up to 10%.
6. We are entitled to request the voucher confirming receipt of the goods with the consignee in electronic form.
IX. Call-off orders
1. Where call-off orders have been placed, goods notified as ready for dispatch are to be called off without undue delay; otherwise, we are entitled to either dispatch them at Purchaser's expense and risk after sending a reminder or store and invoice them immediately, at our discretion.
2. In cases of contracts for continuous delivery, we shall be notified about call-offs and the division into the different grades for roughly equal monthly quantities; otherwise, we are entitled to make the determinations ourselves, at our equitable discretion.
3. If, in the aggregate, the individual call-offs exceed the contractually agreed quantity, we are entitled but not obliged to deliver the excess quantity. We may invoice the excess quantity at the prices applicable at the time of its call-off and/or delivery.
X. Liability for defects in quality
1. Defects in quality in the goods shall be notified in writing without undue delay, however, no later than seven days after delivery. Defects in quality that could not be detected within that period of time despite careful inspection shall – with an immediate stop to any reworking and processing, as applicable – be reported in writing immediately once detected, however, no later than before the expiry of the agreed or statutory limitation period. Where the goods have already been resold, processed or redesigned, Purchaser shall only be entitled to reduce the purchase price.
2. After Purchaser has carried out the agreed acceptance of the goods, any complaint in respect of defects in quality that were detectable in the agreed method of acceptance shall be excluded.
3. In case of a justified notice of defects given in good time, we may elect to either remove the defect or deliver an item that is free from defects (remedial action). Where the remedial action fails or is refused, Purchaser may reduce the purchase price or withdraw from the contract after granting, and fruitless expiry of, a reasonable grace period. If the defect is not material, Purchaser shall only be entitled to reduce the purchase price.
4. All rights arising from the defect in quality shall lapse if Purchaser fails to immediately provide us with the opportunity to assure ourselves of the defect in quality; this applies in particular where Purchaser fails to immediately provide us with the rejected goods or samples thereof upon request.
5. Where goods are sold as downgraded material – e.g. so-called class IIa materials – Purchaser shall not have any rights in respect of defects in quality in relation to the reasons for the downgrading indicated and in respect of defects in quality that they would normally have to expect. Where IIa materials are sold, our liability for defects in quality shall be excluded.
6. We shall assume expenses in connection with any remedial action only where such expenses are reasonable in the individual case, in particular in proportion to the purchase price of the goods, in no case, however, in excess of 150% of the value of the goods. Costs relating to the installation and removal of the defective item as well as costs incurred by Purchaser for removing the defect on their own without the statutory requirements having been met for such measure shall be excluded. We shall not assume expenses incurred as a result of the fact that the goods sold are shipped to a location other than Purchaser’s registered office or branch, unless this corresponds to their contractual use.
7. Purchaser’s rights of recourse pursuant to § 478 BGB shall remain unaffected.
8. We shall not warrant the suitability or fitness of the goods for an intended purpose, unless otherwise expressly laid down in writing; in all other respects, the risk of use and usage lies exclusively with Purchaser.
XI. General limitation of liability
1. We shall only be liable for breaches of contractual and extra-contractual duties, in particular for impossibility of performance, default, culpa in contrahendo scenarios and in tort – also with respect to our executives (leitende Angestellte) and other vicarious agents (Erfüllungsgehilfen) – in cases of intent and gross negligence, limited however to the damage typical for that type of contract as foreseeable at the time of conclusion of the contract.
2. These limitations shall not apply in cases of culpable violation of material contractual obligations where the achievement of the purpose of the contract is at risk, or in cases of mandatory liability under the German Product Liability Act, or in cases of damage resulting from physical injury and hazards to life and health, or if and to the extent that we have concealed defects in the item in bad faith or have warranted their absence. The rules regarding the burden of proof shall remain unaffected.
3. Unless otherwise agreed, any contractual claims Purchaser has against us due to or in connection with the delivery of the goods shall become statute-barred one year after delivery of the goods, unless such claims are based on the compensation for a physical injury or a foreseeable damage typical for that type of contract or on intent or gross negligence on the part of Seller. Our liability arising from intentional and grossly negligent breaches of obligations as well as the limitation of actions for statutory recourse claims shall remain unaffected. Where remedial action is taken, the limitation period does not begin to run again.
XII. Place of performance, legal venue and applicable law
1. In case of delivery ex works, the place of performance for our deliveries shall be the delivering plant and in all other cases our warehouse. At our choice, the legal venue shall either be our headquarters or Purchaser‘s registered office.
2. In addition to these terms, German non-unified substantive law shall govern all legal relationships between us and Purchaser. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980 shall not apply.
1. If a Purchaser resident outside the Federal Republic of Germany (foreign purchaser) or their representative collects goods or if such Purchaser or representative ships or dispatches them abroad, such Purchaser shall provide us with the proof of export necessary for tax purposes. If Purchaser fails to provide such proof, they shall be liable to pay the value added tax applicable within the Federal Republic of Germany on the invoice amount.
2. In cases of deliveries from the Federal Republic of Germany to another EU member state, Purchaser shall provide us with their VAT ID number under which they handle the acquisition taxation within the EU prior to delivery. Otherwise, Purchaser shall be liable to pay the value added tax amount we owe under statutory law in addition to the agreed purchase price.
For each tax-exempt intra-Community delivery from the Federal Republic of Germany to another EU member state, Purchaser of the goods is obligated to provide us with proof of the actual entry of the goods pursuant to §§ 17a and 17c of the Community Value Added Tax Implementing Regulation (Entry Certificate). Such proof shall be furnished on a form provided by us. If Purchaser fails to provide such proof, they shall be liable to pay the value added tax that is applicable within the Federal Republic of Germany on the current (net) invoice amount.
3. If any provision of these General Terms of Delivery and Payment is or becomes invalid, this shall not affect the validity of the remaining provisions.
B. General Lease Terms and Conditions
1. Unless expressly agreed otherwise, our General Lease Terms and Conditions are a part of any lease contract entered into by us. Our General Lease Terms and Conditions exclude the application of contradictory terms of Lessee. Such conditions are not recognized by us and are not binding for us even without specific contradiction.
2. All agreements which are entered into for the purpose of the performance of a lease contract between us and Lessee must be recorded in writing in the contract itself; this particularly also applies for supplementary agreements entered into verbally before entry into the contract.
3. Our employees to whom the leasing is entrusted are not authorized to enter into verbal supplementary agreements or to make verbal promises which go beyond the content of the written contract.
4. Contract amendments must be made in writing.
5. Our offers are non-binding and subject to change without notice. Acceptance declarations require our written or electronic confirmation in order to be legally valid.
6. Lessee undertakes to use the lease item solely for the intended purpose, observe the relevant accident prevention, health & safety and road traffic regulations, pay the lease as agreed and treat the lease item with due care. Lessee further undertakes to notify thyssenkrupp Infrastructure without undue delay about the storage and deployment locations of the lease item.
II. Identification of defects on handover of the lease item
1. Lessee is entitled to inspect the lease item in good time before the start of the lease and make any claims for defects. The costs of any inspection shall be borne by Lessee.
During the handover a handover report is to be completed and signed by Lessee and Lessor. Identified defects shall be documented in this report. Any existing defects at the time of the handover must be reported in writing without undue delay on identification.
2. thyssenkrupp Infrastructure must remedy all existing defects identified during the handover and reported in good time. The remediation costs for such defects shall be borne by thyssenkrupp Infrastructure. thyssenkrupp Infrastructure is also entitled to provide Lessee with a different, functionally comparable lease item. In the event that, during the handover, the lease item is found to have a defect which prevents or impedes its suitability for use in accordance with the contract, Lessee shall only pay a lease fee which has been reduced accordingly for the period of reduced suitability for use.
Where thyssenkrupp Infrastructure allows a reasonable grace period for the remediation of a defect identified during the handover to expire through its own fault, the right of termination of Lessee shall remain unaffected.
III. Lease Term
1. The lease term commences on the day that the lease item or items are handed over to Lessee.
2. The lease term comes to an end upon the return of the lease item or items to us, however not before the expiry of the contractually agreed lease term, irrespective of any contract terminations for cause. Lessee must return the lease item or make it available for collection in a usable, clean condition and full of fuel; insofar as service and maintenance measures or inspection and repair work need to be carried out, Lessee must ensure this occurs at their own expense before return. The lease item must be returned during normal thyssenkrupp Infrastructure business hours in sufficient time so as to allow thyssenkrupp Infrastructure to inspect the lease item on the same day.
IV. Stoppage clause
The lease term is not automatically extended where stoppage times, e.g. due to statutory public holidays at the job site, occur for Lessee. The lease rates also remain unaffected by this. All costs incurred are to be borne by Lessee.
V. Prices and payments
1. Unless otherwise agreed, we charge the prices valid on the day of entry into the contract, plus the applicable statutory VAT.
2. Transport of the lease item or items as well as the loading thereof shall be at Lessee’s cost and risk.
Lessee is obligated to make machines available on the agreed transport days to enable the safe and guaranteed loading of the lease item or items within a reasonable period.
3. Payments must be made in cash, by bank transfer or giro/postal check transfer. If a transfer is made, then only the crediting of the amount to our bank account is deemed to constitute payment. We are not obliged to accept bills of exchange and checks. If we accept them, then it shall be pending full discharge of the debt; only their redemption shall be deemed to constitute payment. Bank, discount and collection fees are always borne by Lessee and due immediately. In all cases, bills of exchange are only accepted without guarantee of correct presentation and protest. Payments by check/bills of exchange always require an express prior agreement.
4. The rent is due in advance, and if it is calculated according to time periods, in each instance as of the commencement of the individual time periods.
5. Payments must be made within 10 days of the invoice date, without discount. If a payment deadline is exceeded, we charge maturity interest in the amount of 5% above the basic interest rate, insofar as Lessee is a fully-qualified merchant, public-law legal entity or public-law special fund. In the event of default in payment, we are entitled to charge default interest in the amount of 8% above the basic interest rate, insofar as a consumer is involved in the legal transaction, in the amount of 5% above the basic interest rate or to claim the default loss actually suffered by us, which may also result in higher default interest. Lessee is free to produce counter-evidence that we have suffered a lower amount of loss.
6. We hereby reserve the right to correspondingly increase our prices if cost increases occur after entry into the contract, particularly due to tariff agreements or increased prices for materials. We will provide evidence of the cost increases to Lessee upon request. If in the individual case the price increase amounts to more than 5%, then Lessee is entitled to withdraw from the contract.
7. Lessee is only entitled to the right to offsetting and reduction if the claims they have made are legally established, undisputed or if they have been acknowledged by us. Lessee shall not be entitled to any right of retention due to disputed counterclaims, unless Lessee is not a fully-qualified merchant or a public-law legal entity or a public-law special fund. In such cases, Lessee has the possibility of exercising a right of retention insofar as their counterclaim arises out of the same contract relationship.
8. The leasing excludes personnel. If in the individual case a demonstration of or instruction in the use of a lease item is necessary, our personnel will carry out the demonstration or instruction. The costs associated with this are to be borne by our Contractual Partner.
VI. Maintenance obligation of Lessee
1. Lessee is obligated to carefully follow our installation and assembly instructions and to keep the lease item or items in proper and functional condition.
2. Lessee is obligated to protect the lease item from overutilization in every respect; costs for the appropriate and professional maintenance and care of the lease item shall be borne by Lessee; necessary inspection and repair work must be announced in good time and performed without undue delay by thyssenkrupp Infrastructure. The costs shall be borne by Lessee.
3. thyssenkrupp Infrastructure is entitled to view the lease item at any time and, following prior agreement with Lessee, conduct its own inspection or arrange for an inspection to be conducted by a representative.
Lessee is obligated to facilitate inspection by thyssenkrupp Infrastructure in every respect; in particular they must allow thyssenkrupp Infrastructure or a corresponding third party to access the job site without undue delay on demand. thyssenkrupp Infrastructure shall bear the costs of the inspection. If Lessee fails to notify Lessor without undue delay of any defect in the lease item for which Lessee is responsible and this defect results in damage to the lease item, Lessee is obligated to pay compensation for this damage.
4. Lessee is not permitted to remove or cover over any labels on the lease item which indicate that it is the property of Lessor.
VII. Liability, Transfer of Risk
1. Lessee will only not be liable for destruction, loss and damage as well as for deterioration which goes beyond the usual or contractually-owed degree if they are able to provide evidence that it is not their fault.
2. If Lessee is liable pursuant to paragraph 1 above, then they are obligated to return the lease item or items to us and to compensate us for the costs incurred for the professional repair of the lease item or items. If repair is not possible or is only possible with disproportionately high expenditure, then Lessee is obligated to bear the costs of procuring an equivalent replacement for the lease item or items.
3. In cases of paragraph 1 above, Lessee remains liable for performance of the lease contract, particularly for the payment of the rent.
4. Lessee shall collect the lease items from the warehouse of thyssenkrupp Infrastructure GmbH and return them to this location after termination of the contractual relationship (active obligation). Place of performance and delivery shall thus be the warehouse of thyssenkrupp Infrastructure GmbH. This shall also apply when thyssenkrupp Infrastructure GmbH carries out the transport and/or return transport of the lease item by a forwarding agent or by its own employees upon request of Lessee. If upon request of Lessee the return transport of the lease item is carried out by a forwarding agent or by employees of thyssenkrupp Infrastructure GmbH, Lessee shall be obligated to guard the lease item, in particular against theft, damage and destruction, until it is collected by thyssenkrupp Infrastructure GmbH. The liability of Lessee pursuant to (2) of this section shall remain unaffected.
5. For all instances of simple negligence, we shall only be liable if this results in a loss of life, physical injury or damage to health, or if in other cases the accusation of simple negligence pertains to our managing directors or executive employees.
Compensation claims for any consequential loss also only exist in the amount of the loss typically foreseeable in connection with contracts of this nature in the usual course of things.
6. Lessee shall indemnify us for the duration of the lease term against third-party claims arising from a breach of the legal duty to maintain safety or from other legal reasons with regard to the lease item.
7. Lessee undertakes to insure the equipment at its replacement value against all types of damage, insofar as insurable, for the duration of the lease term for the benefit of Lessor.
1. We are entitled to terminate the lease for cause. Cause shall be deemed to exist in particular if Lessee uses the lease item or a part thereof for a purpose for which it is not intended or moves the lease item to another location without the permission of thyssenkrupp Infrastructure; and also in cases of violations of the maintenance obligation where this puts the lease item at risk and in the event of late payment of the rent.
2. Cause shall also be deemed to exist in particular if Lessee is in default for two successive dates with the payment of the rent or a not insignificant part of the rent or, in a time period which extends over more than two dates if they are in default with the payment of the rent in an amount which corresponds to the rent for two months, unless an application has been filed for the opening of insolvency proceedings concerning the Contractual Partner’s assets and the default occurred in the time before the application was filed.
3. Cause shall further be deemed to exist in particular if a deterioration in the financial circumstances of Lessee occurs which jeopardizes our claim for payment of the rent. Significant deteriorations in the financial circumstances of Lessee which jeopardize our claim for payment of the rent are the following sets of circumstances in particular: discontinuation of payment by Lessee; non-timely redemption of bills of exchange or checks of Lessee.
If such a set of circumstances exists and if for that reason we terminate the lease, then Lessee is free to produce counter-evidence that there has not been a deterioration in its financial circumstances which jeopardizes our claim for payment of the rent.
Moreover, cause for termination of the contract relationship shall be deemed to exist if the opening of insolvency proceedings concerning the assets of Lessee is applied for, unless the termination is effected due to a default in payment of the rent which occurred in the time before the application was filed or due to a deterioration in the debtor’s financial circumstances.
In the event of a substitution, the original lease item or items are replaced by the new lease item or items. Otherwise, the respective lease contract continues unchanged.
Lessee is only entitled to sub-lease or otherwise hand over of the lease item or items to third parties with our prior written consent. In the case of sub-leasing or handover of the lease item or items to a third party by Lessee, we remain the indirect holder of the lease item or items in addition to Lessee. Lessee hereby assigns to us now its claims for surrender and any remuneration vis-à-vis the third party under the sub-lease or other handover of the lease item or items.
XI. Applicable legal, legal venue
1. The legal relations between us and Lessee are exclusively governed by the law of the Federal Republic of Germany.
2. At our choice, the legal venue shall either be our headquarters or Lessee‘s registered office.
*) Including but not limited to:
thyssenkrupp Schulte GmbH (Essen)
(As at: February 2020)
General Terms and Conditions of Purchase
of thyssenkrupp Infrastructure GmbH
(1) Purchaser’s Terms and Conditions of Purchase shall apply exclusively to all – current and future – purchase orders for goods, services, work and labor and the execution thereof. Supplier’s terms and conditions which deviate from Purchaser’s conditions of purchase shall not be recognized by Purchaser unless Purchaser expressly consents to their validity in writing.
(2) The Terms and Conditions of Purchase shall also apply exclusively if Purchaser accepts or pays for supplies/services in full awareness of contradictory or varying terms and conditions of Supplier.
(3) Commercial clauses shall be interpreted in accordance with the Incoterms as amended.
(I) Purchase orders
(1) Purchase orders shall be binding only if they are placed by Purchaser in writing. Verbal agreements – including subsequent amendments and additions to these terms and conditions of purchase – must be confirmed in writing by Purchaser for them to become valid.
(2) For the period of their validity, cost estimates shall form a binding basis for resultant orders. They shall not be remunerated unless expressly agreed otherwise.
(3) Documents used by Supplier in business dealings with Purchaser shall indicate at least: purchase order number, commission order number, plant, place of receipt, full article text/item description, volumes and volume units as well as VAT ID (for imports from the EU).
(1) The prices are fixed prices. They are inclusive of everything Supplier has to do to fulfill their supply/service obligation.
(2) In prices stated “free domicile”, “free … destination” and other “free/franco” deliveries, the freight and packaging costs shall be included. We shall pay for packaging only if and to the extent that compensation for such has been expressly agreed.
(3) For freight forward deliveries we shall only pay for the lowest available freight costs unless we specify a specific type of shipment.
(III) Scope of supply/service; ownership; usage rights
(1) As part of the scope of supply/service
– Supplier shall transfer to Purchaser ownership of all technical documents (also for sub-suppliers) and other documents needed for manufacture, maintenance and operation. Said technical documents shall be in German and shall be based on the international SI standard system.
– Supplier shall grant Purchaser non-exclusive and irrevocable usage rights that are unrestricted in terms of location, time and content to all protectable supplies/services for all known and as yet unknown types of use; [in particular Purchaser shall be entitled without restriction to duplicate, edit, disseminate in unaltered and altered form and publish via wire-based or wireless technology all supplies/services, and to transfer all contractually granted usage rights to third parties with or without charge].
– Supplier shall grant Purchaser exclusive usage and utilization rights in the scope described above to those supplies/services it produces specifically for Purchaser.
– Supplier pledges to strictly observe the provisions of the Employee Inventions Act and file claims to the corresponding inventions in due form and time. This shall also apply insofar as Supplier does not employ its own staff, but rather commissions third parties in the framework of the permitted employment of temporary workers.
– Purchaser shall have the unconditional authority to carry out or have carried out by third parties repairs and modifications to the purchased supplies/services, and also to manufacture spare parts or have them manufactured by third parties.
(2) If the scope of supply/service is to differ from that agreed, Supplier shall be entitled to additional claims or schedule changes only if a corresponding supplementary agreement is concluded in writing with Purchaser prior to performance of the order.
(3) The ordered volumes are binding. In the event of excess supplies/services, Purchaser shall be entitled to refuse these at the expense and cost of Supplier.
Supplier shall install and maintain a state-of-the art, documented quality system of suitable type and scope. Supplier shall prepare records, in particular of quality inspections, and make these available to Purchaser on request. Supplier hereby agrees to quality audits being carried out by Purchaser or Purchaser’s representative to assess the efficiency of said quality system.
(V) Supply and service periods/deadlines
(1) Agreed delivery dates are binding. In the event that agreed deadlines are not met, statutory provisions shall apply unless otherwise agreed in these General Terms and Conditions of Purchase. The delivery period shall begin on the date of the legally binding purchase order unless otherwise agreed in writing. Supplies/services provided before the agreed delivery dates shall entitle Purchaser to refuse supply/service until it is due.
(2) Unless otherwise agreed in writing, the date on which Purchaser receives the goods shall apply in determining compliance with the delivery date or delivery period. This shall also apply to all shipment documents, operating instructions and other certificates necessary to fulfill Supplier’s delivery obligations.
(3) If Supplier becomes aware that an agreed deadline cannot be met, it must inform Purchaser in writing without delay, stating the reasons and the expected duration of the delay.
(4) Unreserved acceptance of the delayed supplies/services may not be construed as relinquishment of any compensation to which Purchaser is entitled; this shall apply until full payment of the fee owed by Purchaser for the supply/service concerned has been made.
(VI) Delivery/performance and storage, risk
(1) Insofar as Supplier and Purchaser agree validity of one of the “Incoterms” of the International Chamber of Commerce (ICC) for the contract, the currently valid version thereof shall apply. They shall apply only insofar as they do not contradict the provisions of these General Terms and Conditions of Purchase and other concluded agreements. Unless otherwise agreed in writing, the supply/service shall be “delivered duty paid” (Incoterms: DDP) to the place of delivery/performance or use indicated in the purchase order. Supplier shall bear the risk of accidental loss and accidental deterioration, including for “franco” and “free domicile” deliveries, until the goods are handed over at the place of destination.
(2) Supplies/services must be shipped to the addresses indicated. Delivery to/performance at a place of receipt other than that designated by Purchaser shall not constitute transfer of risk to Purchaser even if said place of receipt accepts the delivery/service. Supplier shall bear the additional costs of Purchaser resulting from the delivery being made to/service performed at an address differing from the agreed place of receipt.
(3) Partial supplies/services are not permitted unless Purchaser has expressly consented thereto. Partial supplies/services are to be marked as such, delivery/service notes shall be submitted in triplicate.
(4) Excess or short deliveries shall only be permitted within the normal framework.
(5) If weighing is necessary, the weight determined on the calibrated scales of Purchaser shall apply.
(6) Insofar as Supplier has the right to have the packaging needed for delivery/service returned, this shall be clearly marked on the delivery/service documents. In the absence of such marking, Purchaser shall dispose of the packaging at the cost of Supplier; in this case Supplier’s right to have the packaging returned shall expire.
(7) Items needed for the fulfillment of an order may be stored on the premises of Purchaser in allocated storage areas only. For such items Supplier shall bear the full responsibility and risk of the entire order until the transfer of risk.
(8) During transportation the statutory provisions, in particular the provisions of the law on the transportation of hazardous goods and the applicable hazardous goods directives including the respective annexes and appendices must be complied with.
(9) The declaration of the goods in the consignment notes for shipment by rail must comply with the valid provisions of the railways. Costs and damages incurred due to incorrect declaration or failure to provide a declaration shall be at the expense of Supplier.
(10) Supplier shall have the receipt of deliveries confirmed in writing by the indicated place of receipt.
(11) Packaging costs shall be paid by Supplier unless otherwise agreed in writing. If in an individual case Purchaser bears the costs of packaging, this shall be charged to Purchaser at the lowest rate. The take-back requirements shall be based on the packaging ordinance of August 21, 1998 as amended. In the case of freight-paid return of packaging, the packaging shall be credited at 2/3 of the invoiced value.
(VII) Execution, sub-suppliers, assignment
Insofar as supplies/services are provided under contracts for work and services, the following shall apply:
(1) Supplier shall not be entitled to transfer the execution of the contract in whole or in part to third parties.
(2) Supplier is obligated to name its subcontractors to Purchaser on request.
(3) Supplier shall not be entitled to assign its contractual claims vis-à-vis Purchaser to third parties or permit third parties to collect same. This shall not apply for legally established or uncontested claims.
(1) Purchaser shall be entitled to terminate the contract in full or in part without specifying reasons. In such an event, Purchaser is obligated to pay for all supplies/services completed up to that point and make appropriate payment for material procured and work/services performed; in this case § 649, Sentence 2 of the German Civil Code (BGB) shall apply. Further claims of Supplier are excluded.
(2) Purchaser is entitled to terminate the contract with immediate effect for cause in particular where a material deterioration in the financial situation of Supplier occurs or threatens to occur and thus endangers the fulfillment of commitments vis-à-vis Purchaser. In this case Purchaser has the right to acquire material and/or semi-finished products including any special equipment on reasonable terms and conditions.
(IX) Invoicing, payment, offsetting
(1) Unless otherwise agreed or unless Supplier offers more favorable conditions, payments shall be due after receipt of an invoice issued in accordance with § 14 German VAT Act (UStG) within 14 days with 3% discount or within 30 days in the full net amount. Invoices shall be settled no later than 30 days after delivery/performance and receipt of invoice. If goods/services are supplied/performed and accepted ahead of the agreed delivery date, the due date for payment shall continue to be based on the agreed delivery date.
(2) Payment and discount terms shall begin on receipt of the invoice, though not before receipt of the goods or in the case of services not before their acceptance and, insofar as documentation, test certificates (e.g. factory certification) or similar documents are required under the scope of supply, not before said documentation has been handed over to Purchaser as contractually agreed.
(3) Purchaser shall pay by check or bank transfer. Payment shall be deemed to be on time if the check is sent by post on the due date or the transfer is initiated at the bank on the due date.
(4) Interest after due date shall be excluded. The interest rate for default shall be 5% above the basic interest rate pursuant to § 247 German Civil Code (BGB). Purchaser shall be entitled in all cases to demonstrate that the damages caused by default are lower than those demanded by Supplier.
(5) Statutory offsetting and retention rights shall apply for Purchaser. Supplier may offset only against uncontested or legally established receivables; their rights of retention shall apply only insofar as they are based on the same legal relationship.
(6) On the basis of the authorization given to Purchaser by the companies belonging to Purchaser’s group in accordance with § 18 German Stock Corporation Act (AktG))* 1, Purchaser shall be entitled to offset any claims due, for whatever legal reason, to Supplier from Purchaser or a company of Purchaser’s group. The same shall also apply if cash payment has been agreed by one party and payment in bills of exchange or other arrangements on account of performance has been agreed by the other. In these cases such arrangements shall relate to the balance only. If the claims are due on different dates, Purchaser’s claims shall become payable by no later than the due date at which Purchaser’s liabilities fall due for payment and shall be settled at the value date.
(X) Claims under liability for defects
(1) Supplier guarantees on a fault basis that its supplies/services are of the agreed quality, fulfill the intended purpose and comply with the generally accepted rules of technology and the agreed properties and standards. In the event that Purchaser incurs costs such as transport/travel, working and material costs or contractual penalties as a consequence of defective supplies/services, Supplier shall bear said costs.
(2) Supplier undertakes to supply Purchaser only with goods that are free of all signs of ionizing radiation. All costs and damages incurred through violation of this obligation shall be borne by Supplier.
(3) The limitation period for defect liability claims shall begin with the full supply/performance of the scope of supply/service or, if acceptance testing is agreed, on acceptance.
(4) The limitation period for defect claims is 36 months; longer statutory limitation periods shall remain unaffected by this. The limitation period shall start anew for newly supplied/performed parts, but for repaired parts only insofar as the same defect or the consequences of inadequate remediation are concerned, remediation would involve a wider scope, a significant amount of time or higher costs, and Supplier has not remedied the defect expressly only out of goodwill, to avoid disputes or in the interests of continuing the supply relationship. Purchaser – or in the case of drop shipments Purchaser’s customer – shall check deliveries upon receipt for quality and completeness to the extent that can be reasonably expected and within the scope of Purchaser’s technical possibilities and report any defects detected immediately. At all events the notification is deemed to be in good time insofar as it arrives at Supplier by mail, fax, email or phone within a period of eight working days of receipt of the goods unless a longer period has been agreed in the individual case, or – for hidden defects – from the time of discovery. For defects notified within the limitation period, the period shall end no earlier than six months after assertion of the notice of defects. Supplier shall not object on the grounds of delayed notification (§§ 377, 381, (2) German Commercial Code (HGB)) for all other than obvious defects.
(5) All defects which are notified within the period of limitation shall, at Purchaser’s choice, be remedied by Supplier or replaced by new goods/services without delay and at no cost to Purchaser. The costs of remedying goods or supplying/performing replacements, including all incidental costs (e.g. freight), shall be borne by Supplier in accordance with the statutory provisions. In the event that Supplier does not meet its remediation obligation within an appropriate period defined by Purchaser, Purchaser shall be entitled to eliminate the defects and demand reimbursement of the required expense or a corresponding advance from Supplier. This shall not affect statutory rights of withdrawal, purchase price reduction or compensation for damages. Remediation by Supplier shall be deemed to have failed after the first unsuccessful attempt.
(6) Purchaser may demand that Supplier reimburses the expenses in connection with a defect which Purchaser has to bear in respect of its customers if the defect already existed at the time of the transfer of risk to Purchaser.
(1) Supplier pledges to Purchaser that it shall comply with the provisions of the German Minimum Wage Act (MiLoG) and indemnify Purchaser against claims by third parties, in particular claims pursuant to § 13 MiLoG.
(2) In the event that existing compensation claims by third parties can be asserted vis-à-vis Purchaser due to supplies/services of Supplier, Supplier shall on first demand indemnify Purchaser against the full amount of such claims and pledge to cover reasonable legal and court fees of Purchaser.
(3) Supplier further guarantees that goods produced, stored and transported on behalf of Purchaser, supplied to Purchaser or accepted by same shall be produced, stored, processed and loaded at secure operating and handling facilities, and protected from unauthorized access during production, storage, processing, loading and transportation. Supplier pledges that the employees involved in the production, storage, processing, loading, transportation and acceptance of such goods are reliable and that they have been checked against the currently valid EU sanction lists. Supplier further pledges that all business partners acting on its behalf have been informed that they also need to take measures to secure the aforementioned supply chain. Supplier agrees to its data being checked against the currently valid versions of the EU sanction lists.
(XII) Place of performance, legal venue
(1) Unless otherwise agreed by Purchaser’s plant, the place of performance for all supplies/services shall be the place of receipt indicated by Purchaser.
(2) The legal venue shall be the registered office of Purchaser, or at Purchaser’s choice, Supplier’s general legal venue.
(XIII) Applicable law
All legal relations between Purchaser and Supplier shall be governed by the prevailing substantive law of the Federal Republic of Germany to the exclusion of the United Nations Convention of April 11, 1980 on the Contracts for the International Sale of Goods (CISG) as amended.
(XIV) Prohibition of advertising/secrecy
(1) The use of the thyssenkrupp logo/logotype and any mention of the thyssenkrupp group, thyssenkrupp AG or individual group companies as reference customers of Supplier requires the express prior consent in writing of thyssenkrupp AG in each individual case.
(2) Supplier shall maintain secrecy vis-à-vis third parties in respect of all operating processes, facilities, plants, documents, etc. used at Purchaser’s premises or those of Purchaser’s customers which become known to Supplier in connection with its activities for Purchaser, also after submission of the corresponding offers and after completion of the contract. Supplier shall impose corresponding obligations on its agents.
(XV) Retention of title
(1) We shall only recognize any simple retention of title by the Contractual Partner to the extent that ownership of the goods is transferred to us upon payment and we are authorized to resell and transfer the goods in the course of normal business. We shall not accept specific forms of retention of title, in particular transferred, subsequent or extended retention of title, current account retention or extended corporate retention of title. Conflicting terms and conditions of the Contractual Partner shall not be recognized by us; they are hereby expressly rejected and shall not form part of the contract.
(2) The Contractual Partner may only demand the return of goods on the grounds of retention of title if it has previously withdrawn from the contract.
(XVI) Severability/written form
Should individual provisions of these conditions become entirely or partially invalid, the remaining provisions shall remain valid. The same shall apply for the corresponding contract. Insofar as these General Terms and Conditions of Purchase demand declarations by the Contractual Partners to be made in writing, simple text form shall be sufficient.
(XVII) Data protection
Purchaser points out in accordance with § 33 of the Federal Data Protection Act (BDSG) that they shall store data relating to Supplier on the basis of the Federal Data Protection Act.
(XVIII) REACH clause
Supplier must fulfill all specifications and measures resulting from the REACH directive for all materials, prepared materials and products supplied/provided to Purchaser.
(XIX) Declaration of origin
In the event that Supplier submits declarations of origin with regard to the goods sold, the following shall apply:
(1) Supplier undertakes to permit the customs authority to examine documentary evidence of origin and to provide the necessary information on this and supply any confirmations required.
(2) Supplier is obligated to offset the damages incurred as a result of the declared origin not being recognized by the competent authority due to a lack of documentary evidence or inability to check, unless these consequences are beyond Supplier’s control.
(XX) Force majeure
In the event of Acts of God, labor disputes, civil unrest, official actions and other unforeseeable, inevitable and serious events, the Contractual Partners shall be temporarily relieved from their obligations during the period such events continue and to the extent that their obligations are affected. This shall also apply in the event that the Contractual Partner concerned is in default at the time these events occur. The Contractual Partners undertake to provide any necessary information which may reasonably be expected without delay, and to adjust their obligations in good faith to the changed circumstances.
(XXI) Applicable version
Insofar as these General Terms and Conditions of Purchase are made available in another language, the German version shall take precedence.
1 *) These include in particular:
thyssenkrupp Materials Services GmbH (Essen), thyssenkrupp MillServices & Systems GmbH (Oberhausen), thyssenkrupp Schulte GmbH (Essen), thyssenkrupp Aerospace Germany GmbH, thyssenkrupp Materials Trading EMEA GmbH (Essen), thyssenkrupp Materials Processing Europe GmbH (Krefeld)
As at: February 2020