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 oral 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 from time to time, shall be authoritative 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 established only approximatively, however, to the best of our ability; for us, however, they are insofar non-binding. 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 that is valid at the time of conclusion of the contract. The goods are invoiced "gross for net".
- 3. In cases of distance delivery, in particular ex works deliveries, we may establish the prices in accordance with the terms of the respective delivering plant's price list that is 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 as compared with the time the prices were agreed, we shall reserve the right to increase the agreed price for any then outstanding quantity. In such a case, the customer shall be free to cancel the orders affected by such price increase within four weeks as from [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 set-off
- 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 transactions fees. Purchaser shall only have a right of retention and is only entitled to set-off insofar as its counterclaims are undisputed or have been confirmed by a final and non-appealable judgment.
- 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 obliged 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 percentage points above the base interest rate of the European Central Bank, unless higher interest rates have been agreed. The right to claim further damages shall remain reserved.
- 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 (section 18 German Stock Corporation Act (Aktiengesetz;)*), we are entitled to set off [payments] against any and all claims Purchaser is entitled against us or any such group company, irrespective of their legal ground. 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 lacking ability to perform, we are entitled to the rights under section 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 grant 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 in time, unless we have caused the incorrect or late delivery.
- 2. Information on delivery times are approximate. Delivery periods shall start with the date on which we confirm the order and shall apply only if all details of the [respective] 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 is authoritative for the purpose of complying with the delivery terms and dates. If, without our fault, the goods cannot be dispatched in good time, 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 starting 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 that are not our fault (e.g. [due to] fire, machinery and rolls breakdown, shortage of raw materials and energy, effects of radiant substances), obstruction of traffic roads, delay in import/customs clearance as well as any and all other circumstances which render delivery considerably more difficult or impossible, without our 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 been executed yet.
V. Reservation of title
- 1. We shall retain title in all goods delivered (goods subject to a reservation 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 (overall reservation of title) 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 overall reservation of title have been settled in full, the overall reservation of title shall become extinct.
- 2. Any reworking and processing of the goods subject to a reservation of title shall be done for us as the manufacturers in accordance with section 950 BGB, without establishing any obligation on our part. The reworked and processed goods shall be deemed goods subject to a reservation of title within the meaning of no. 1. Where Purchaser processes, combines and blends goods subject to a reservation 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 a reservation of title to the invoice value of the other goods used [in said process.] If our title has become extinct as a result of combining or blending, Purchaser shall hereby transfer to us its title to the new inventory or item in proportion to the invoice value of the goods subject to a reservation of title, and shall keep it in custody for us free of charge. Our co-ownership rights shall be deemed goods subject to a reservation of title within the meaning of no. 1.
- 3. Purchaser may only sell the goods subject to a reservation of title within the ordinary course of business at its regular terms and conditions and as long as it has 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 a reservation of title in any other manner.
- 4. The claims arising from the resale of the goods subject to a reservation 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 a reservation of title. If Purchaser sells the goods subject to a reservation of title together with other goods that we have not sold, the claim arising from the resale shall be assigned to us in proportion of the invoice value of the goods subject to a reservation of title to the invoice value of the other goods sold. In cases where goods to which we have a co-ownership pursuant to no. 2 are sold, a portion corresponding to our co-ownership share will be assigned to us. If Purchaser uses the goods subject to a reservation of title for the purpose of performing a contact for work and services, the claim arising from the contact 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 institution of insolvency proceedings. We shall use our revocation right only in case that 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 lacking ability to perform. Upon our request, Purchaser is obliged to immediately inform its customers of its 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 done 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 obliged 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 a reservation of title, unless reimbursed by third parties.
- 8. We are entitled to take back the goods subject to a reservation 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 lacking ability to perform. Taking back [the goods subject to a reservation of title] shall not constitute a rescission 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, absent such agreement in accordance with the standards applicable upon conclusion of the contract, absent such standards in accordance with the standards in conformity with 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 is relevant. 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 calculational individual weights shall be distributed to them proportionately.
- 1. If an acceptance is agreed, it may only take place at the delivering plant and / or our warehouse immediately upon notification of the readiness for acceptance. The personal acceptance costs shall be borne by Purchaser, the factual 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 contact for work and services, it shall be deemed given three days following 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's period, the acceptance shall be deemed given upon commissioning.
VIII. Dispatch, passing 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, without our fault, the transportation on the intended route or to the intended destination within the intended period of time has become impossible or considerably more difficult, 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 see to packaging, protective and / or transportation aids on the basis of our experience, at Purchaser's expense. These items shall be taken back in our warehouse. We shall not assume expenses incurred by Purchaser for returning the packaging or for disposing it on its own.
- 5. We are entitled to make partial delivery 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 a corresponding calculation of, up to 10 percent.
- 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 own discretion.
- 2. In cases of contracts for continuous delivery, we shall be notified about call-offs and the division into the different types of 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, however, 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 as from surrender. Defects in quality that could not be detected within that period of time despite most careful testing shall – with an immediate stop to any reworking and processing, as applicable – be notified in writing immediately once detected, however, no later than before the expiry of the agreed or statutory statute of limitation. 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 mode 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 can reduce the purchase price or repudiate the contract after granting, and fruitless expiry of, a reasonable grace period. If the defect is not material, it 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 those [defects in quality] that it 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 defect item as well as costs incurred by Purchaser for removing the defect on its 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 seat or branch, unless this corresponds to their contractual use. 7. Purchaser's rights of recourse pursuant to section 478 BB 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, however, limited to the damage typical for that type of contract as foreseeable at the time of conclusion of the contract.
- 2. These limitations shall neither apply in cases of culpable violation of material contractual duties where the achievement of the purpose of the contract is at risk, nor in cases of mandatory liability under the German Product Liability Act, nor in cases of damage resulting from injury to life, limb or health nor if and to the extent that we have concealed defects of the item in bad faith or have warranted their absence. The standards as regards the burden of proof shall remain unaffected hereof.
- 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 as from the surrender of the goods, unless such claims are based on the compensation for an injury to body and health or a foreseeable damage typical for that type of contract or on intent or gross negligence on the part of Purchaser. Our liability arising from intentional and grossly negligent breaches of duty as well as the limitation of actions for statutory recourse claims shall remain unaffected hereof. Where remedial action is taken, the limitation period does not begin to run again
XII. Place of delivery, venue and governing law
- 1. In case of delivery ex works, the place of delivery for our deliveries shall be the delivering plant, in all other cases, our warehouse. At our choice, the place of venue shall either be our headquarters or Purchaser's registered seat.
- 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 buyer) or its representative collects goods or if such purchaser or representative ships or dispatches them abroad, such purchaser shall provide us with the proof of exportation necessary for tax purposes. If the purchaser fails to provide such proof, it 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 members state, Purchaser shall provide us with its VAT ID number under which it handles the acquisition taxation within the EU, prior to delivery. Otherwise, it 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, the purchaser of the goods is obliged to provide us with a proof of the actual entry of the goods [of the intra-Community supply into another EU member state] pursuant to sections 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 the purchaser fails to provide such proof, it 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.
General Lease Terms and Conditions
- 1. Insofar as nothing different is expressly agreed upon, 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 the lessee. Such conditions are not recognised 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 the lessee must be recorded in writing in the contract itself; this particularly also applies for supplementary agreements entered into orally before entry into the contract.
- 3. Our employees to whom the leasing is entrusted are not authorised to enter into oral supplementary agreements or to make oral promises which go beyond the content of the written contract.
- 4. Contract amendments require the written form.
- 5. Our offers are non-binding and are subject to change without notice. Acceptance declarations and all other declarations by the tenant require our written confirmation or our confirmation by telex in order to be legally valid.
II. Lease Term
- 1. The lease term commences upon the day that the leased item or items are handed over to the lessee.
- 2. The lease term comes to an end upon the return of the leased item or items to us, however not before the expiry of the contractually-agreed lease term, irrespective of any contract terminations for important reasons.
III. Price and Payments
- 1. If nothing different is agreed upon, we charge the prices valid on the day of entry into contract, plus the respectively-valid statutory VAT.
- 2. Transport of the leased item or items as well as the loading of the leased item or items are done at lessee’s cost and risk. Our contract partner is obliged to make machines available on the agreed transport days by means of which the loading of the leased item or items is safe and guaranteed within a reasonable period.
- 3. Payments must be made in cash, by bank transfer or giro check transfer. If a transfer is made, then only the crediting of the amount to our bank account is deemed to be payment. We are not obliged to accept bills of exchange and cheques. If we accept them, then the acceptance is done in payment pending full discharge of the debt; only their redemption shall be deemed to be payment. Bank, discount and collection fees are always borne by the lessee and are immediately due. In all cases, bills of exchange are only accepted without guarantee of correct presentation and protest. Payments by cheque/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 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 the 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 9% above the basic interest rate, insofar as a consumer is involved in the legal transaction, in the amount of 5% above the basic interest or to claim the default loss actually suffered by us, which can also result in higher default interest. Our contract partner 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 rescind the contract.
- 7. Our contract partner is only entitled to the right to set-off and reduction if the claims made by it have been determined in a legally-final and binding manner, if they are undisputed, or if they have been acknowledged by us. Our contract partner shall not be entitled to any right of retention due to disputed counter-claims either, unless the lessee is not a fully-qualified merchant or a public-law legal entity or a public-law special fund. In such cases, the lessee has the possibility of exercising a right of retention insofar as its counterclaim arises out of the same contract relationship.
- 8. The leasing is done without personnel. If in the individual case a demonstration of or instruction in the use of a leased item is necessary, we will carry out the demonstration or the instruction through our personnel. The costs associated with this are to be borne by the lessee.
IV. Liability, Transfer of Risk
- 1. The lessee is obliged to carefully follow our installation and assembly instructions and to keep the leased item or items in proper and functional condition.
- 2. The lessee will only not be liable for destruction, loss and damage as well as for deterioration which goes beyond the usual or the contractually-owed degree if the lessee is able to provide evidence that no fault is attributable to it.
- 3. If the lessee is liable pursuant to paragraph 2 above, then it is obliged to return the leased item or items to us and to compensate us for the costs which must be expended in order to professionally repair the leased item or items. If repair is not possible or is only possible with disproportionately high expenditure, then the lessee is obliged to bear the costs which are necessary in order to procure an equivalent replacement for the leased item or items.
- 4. In cases of paragraph 2 above, the lessee remains liable for performance of the lease contract, particularly for the payment of the rent.
- 5. The lessee collects the work parts at the warehouse of thyssenkrupp Infrastructure GmbH, and shall return them to this location after termination of the contractual relationship (debt payable to the creditor). Place of performance and delivery thus shall be the warehouse of thyssenkrupp Infrastructure GmbH. This shall apply also when thyssenkrupp Infrastructure GmbH carries out the transport and / or return transport of the leased property by a forwarding agent or by own staff upon request of the lessee. If upon request of the lessee the return transport of the leased property is carried out by a forwarding agent or by the own employees of thyssenkrupp Infrastructure GmbH, the lessee shall be obligated to guard the leased property until the said is picked up by thyssenkrupp Infrastructure GmbH, in particular guarding against theft, damage and destruction. The liability of the lessee in keeping with Figure (2) of this section shall remain unaffected.
- 6. For all instances of simple negligence, we are only liable if this results in a loss of life, personal 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 which is typically foreseeable in connection with contracts of this nature according to the usual course of things.
- 7. Our contract partner indemnifies us for the duration of the lease term against third-party claims arising out of the breach of the public safety obligation or out of other legal reasons with regard to the leased item.
- 1. We are entitled to terminate the lease for an important reason.
- 2. An important reason shall particularly exist if the 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 is in default with the payment of the rent in a sum amounts to the rent for two months, unless an application has been filed for the initiation of insolvency proceedings concerning the contract partner’s assets and the default occurred in the time before the initiation application.
- 3. An important reason is also in particular if a deterioration in the financial circumstances of the lessee occurs which jeopardises our claim for payment of the rent. Significant deteriorations in the financial circumstances of the lessee which jeopardise our claim for payment of the rent are the following sets of circumstances in particular:
- 4. Discontinuation of payment by the lessee; non-timely redemption of bills of exchange or cheques of the lessee. If such a set of circumstances exists and if for that reason we terminate the tenancy, then the lessee is free to produce counter-evidence that there has not been a deterioration in its financial circumstances which jeopardises our claim for payment of the rent. Moreover, an important reason for termination of the contract relationship exists if the initiation of insolvency proceedings concerning the assets of the contract partner is applied for, unless the termination is effected due to a default in payment of the rent which occurred in the time before the initiation application or due to a deterioration in the debtor's financial circumstances.
- In the event of a substitution, the original leased item or items are replaced by the new leased item or items. Otherwise, the respective tenancy continues unchanged.
- Our contract partner is only entitled to sub-lease or to other hand-over of the leased item or items to third parties with our prior written consent. In the case of sub-leasing or hand-over of the leased item or items to a third party by the lessee, we remain the indirect holder of the leased item or items in addition to the lessee. Our contract partner hereby assigns to us now its replevin claims and any remuneration claims against the third party under the sub-lease or other hand-over of the leased item or items.
VII. Applicable Law, Place of Performance, Legal Venue
- 1. The legal relations between us and the lessee are exclusively governed by the law of the Federal Republic of Germany.
- 2. At our choice, the place of venue shall either be our headquarters or Lessee's registered seat.
*) Including but not limited to: thyssenkrupp Schulte GmbH
(Status: May 2018)
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 handling 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) Purchaser 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.
- (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 his 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 is expressly agreed otherwise.
- (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 subcontractors) 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 he 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 his 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/default
- (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 delivery date or delivery period shall refer to the date on which Purchaser receives the goods. 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, he must inform Purchaser in writing without delay, stating the reasons and the expected duration of the delay. Supplier shall also propose suitable counteractions to avert the repercussions of such 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.
- (5) Without prejudice to the aforesaid, in the event of any delay in delivery for reasons attributable to Supplier, penalty payments shall be due to Purchaser equivalent to 0.5% of the purchase price for each week of delay or fraction thereof, up to a maximum of 5%, unless otherwise agreed. If Purchaser names, and Supplier accepts, a specific vessel for the shipment of the goods, Supplier shall, notwithstanding the aforesaid, bear all charges for demurrage, dead freight, etc., if the goods are for whatever reason shipped late or not at all.
(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) Part supplies/services are not permitted unless Purchaser has expressly consented thereto. Part 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 shipment/services 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 shall comply with the valid provisions of the railways. Costs and damages incurred due to incorrect declaration or failure to declare 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) 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.
- (12) 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
- (1) Insofar as supplies/services are provided under work and labor contracts 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 his subcontractors to Purchaser on request.
- (3) Supplier shall not be entitled to assign his 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 percentage points 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 rights of set-off and retention shall apply for Purchaser. Supplier may offset only against uncontested or legally established receivables; his 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))*, 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 his 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 any defects detected notified immediately. At all events the notification is deemed to be in good time insofar as it arrives at Supplier by mail, fax, e-mail or phone within a period of eight working days of receipt of goods and a longer period has not 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 his remediation obligation within an appropriate period defined by Purchaser, Purchaser shall be entitled to eliminate the defects himself 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 his customer if the defect already existed at the time of the transfer of risk to Purchaser.
- (1) Supplier pledges to Purchaser that he 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 his behalf have been informed that they also need to take measures to secure the aforementioned supply chain. Supplier agrees to his data being checked against the currently valid versions of the EU sanction lists.
(XII) Place of fulfillment, legal venue
- (1) Unless otherwise agreed by Purchaser’s plant, place of fulfillment for all supplies/services shall be the place of receipt indicated by Purchaser.
- (2) The legal venue shall be the domicile 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) in the currently valid version.
(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 operational events, facilities, plants, documents, etc. used at Purchaser’s premises or those of his customers which become known to Supplier in connection with his activities for Purchaser, also after submission of the corresponding offers and after completion of the contract. Supplier shall impose corresponding obligations on his agents.
(XV) Reservation of title
- (1) We shall only recognize any simple reservation of title by the contracting 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 reserved title, in particular transferred, subsequent or extended reservation of title, current account reservation or extended corporate reservation of title. Conflicting terms and conditions of the contracting partner shall not be recognized by us; they are hereby expressly rejected and shall not form part of the contract.
- (2) The contracting partner may only demand the return of goods on the grounds of reservation of title if he has previously withdrawn from the contract.
(XVI) Severability/written form
- Should individual provisions of these conditions become entirely or partly 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 parties 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 he 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) Declarations 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 he is not responsible for these consequences.
(XX) Force majeure
- In the event of Acts of God, labor disputes, civil commotion, official actions and other unforeseeable, inescapable and serious events, the contracting parties 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 contracting party concerned is in default. The contracting parties 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.
- Supplier, at his own expense and without undue delay, shall ensure that all documents required for the effectiveness of the contract in the vendor’s country, e.g. export permits, are available and remain valid while the contract is in progress. Failure by Supplier to meet this obligation shall entitle Purchaser to withdraw from the contract and claim damages from Supplier. The same shall apply if, for example, despite Supplier's efforts the required permits are not granted within a period reasonably acceptable to Purchaser or are withdrawn or become invalid while the contract is in progress.
(XXII) Applicable version
- Insofar as these General Terms and Conditions of Purchase are made available in another language, the German version shall take precedence.
*) 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)