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General terms and conditions of thyssenkrupp Schulte GmbH

General terms & conditions of delivery and payment

(I) Applicability/Offers                   

(1) These General Terms & Conditions shall apply to all present and future contracts made with businesspeople, corporate or public-law entities or public-law special funds for the delivery of goods or provision of services, including contracts for work, advice, proposals and other incidental services. In the case of drop shipments, the terms and conditions set out in the price list of the supplier plant shall additionally apply. Purchaser’s terms and conditions of purchase will not be accepted even in cases where we have not expressly objected thereto upon receipt.

(2) Our offers are subject to change without notice. Any contracting-related oral agreements, promises, commitments or warranties made or given by our employees shall not bind us unless and until confirmed by us in writing.

(3) In case of any doubt, commercial clauses shall be interpreted pursuant to the Incoterms as amended.       

(4) All specifications such as dimensions, weights, illustrations, descriptions, assembly or installation sketches and drawings contained in sample books, price lists and other printed matter have been determined to the best of our ability but are approximate only and therefore not binding on us. This shall also apply to any information given by plants. All models and drawings shall remain our property.    

(5) In contracts for work, “Purchaser” shall for the purposes hereof include “Customer”.

(II) Prices                     

(1) Prices shall be deemed ex works or ex warehouse plus freight and value-added tax.

(2) Unless otherwise agreed, the prices and terms set out in our price list (as amended by the contracting date) shall apply. Goods will be invoiced on a gross-for-net basis.

(3) If, later than four weeks after the contracting date, any taxes, fiscal charges or other third-party costs which are included in the agreed prices either change or are newly levied or charged, we are entitled to adjust our prices accordingly.

(4) With respect to quantities of goods not yet delivered, we reserve the right to increase the agreed price if a change in the raw-material or commodity market and/or in the general economic situation makes the production and/or purchase of the product concerned significantly more expensive than at the time when the prices were agreed upon. In such case, Purchaser may cancel the order(s) affected by such price increase within the four weeks following price increase notification.            

(III) Payment and offset

(1) Unless otherwise agreed or stated in our invoices, the purchase price will be due net immediately upon delivery and shall be paid in such form that we are able to dispose of the full invoice amount on the payment due date, any payment transaction charges being for Purchaser’s account. No amounts may be retained from, or offset against, such payment by Purchaser except to the extent that Purchaser’s counterclaims are undisputed, uncontested or res judicata.

(2) If the payment credit term is exceeded or in the case of default/delay in payment, we will charge interest at 8 percentage points above the ECB base rate unless any higher rate has been agreed upon. Moreover, we reserve the right to claim any further default-induced loss.

(3) Purchaser shall be deemed to be in default of payment not later than 10 days after due date and receipt of the invoice/payment account or receipt of the goods/services.

(4) Since we have been authorized accordingly by the companies belonging to our group (Art. 18 German Stock Corporation Act–“AktG”)*), we are entitled to offset any accounts whatsoever receivable by us or by these group members against all accounts due to Purchaser. This shall also apply if one side has agreed upon cash payment and the other on payment by bills of exchange or other arrangements on account of performance. Where applicable, these agreements shall apply only to the balance. If the receivables fall due for payment on different dates, our receivables shall be due by no later than the date at which our liability falls due for payment and will be invoiced as of such date.

(5) If we become aware after the contracting date of any circumstances which are, in our view, liable to impair Purchaser’s solvency, we are entitled to urge the defense of uncertainty under the terms of Art. 321 German Civil Code (“BGB”). In such case all our accounts receivable (unless statute-barred) from current business relations with Purchaser shall immediately fall due. Moreover, the defense of uncertainty shall extend to cover any and all other contracts from the business relationship with Purchaser.

(6) Any agreed cash discount shall always apply to the invoice value only, excluding freight, and may only be claimed if Purchaser’s accounts due have been discharged in full as of the date of deducting the cash discount.

(IV) Execution of deliveries, delivery dates and periods   

(1) We will only be bound by our obligation to deliver provided that our own suppliers provide us on time with the proper goods, unless any improper or delayed delivery on the part of our suppliers is due to our fault.

(2) All delivery dates and periods indicated are approximate only. Delivery periods shall commence with the date of our order confirmation and apply only under the condition that all details relating to the order have been clarified and Purchaser has complied with all his duties, e.g. the submittal of any and all official permits, letters of credit and guarantees or the remittance of advance/upfront payments.  

(3) Delivery dates or periods shall be deemed kept (i) if the date at which the goods are shipped ex plant or warehouse is inside the agreed period or (ii), if due shipment of the goods is delayed for reasons beyond our control, when the goods are notified ready for shipment.

(4) The occurrence of any events of force majeure will entitle us to postpone delivery for the duration of such event plus a reasonable start-up time. This shall also apply if such events occur while we are in default. Events of force majeure shall be deemed to include acts of monetary or trade policy or of any government, strikes, lockouts, any disruptions to our production operations for reasons beyond our control (e.g. due to fire, breakage of machinery or rollers, shortage of raw materials or energy), transportation impediments, delays in import/customs clearance as well as any other circumstances beyond our control, including pandemics, which materially hinder, or even frustrate, delivery. In this context, the place of occurrence is irrelevant, be it at our supplier plant or any other pre-supplier’s. If as a result of any of the aforementioned events either party can no longer be reasonably expected to perform the contract and, in particular, if performance of material parts of the contract is delayed by more than six months, such party may rescind the contract.           

(V) Reservation of title and ownership

(1) All goods delivered shall remain our property (the “Conditional Goods”) until all our claims against Purchaser under the contract have been satisfied, including any receivables from current-account balances due to us under the business relationship (“current account reservation”) and including any receivables which the insolvency trustee or administrator declares owed unilaterally on the basis of his discretion and option to demand performance. The foregoing shall equally apply to future and conditional or contingent receivables or claims, such as under bills of exchange, as well as to payments for dedicated or otherwise specified receivables. The current account reservation will expire finally when all receivables outstanding and due to us on payment date and covered by such current account reservation have been settled.

(2) Any processing of the Conditional Goods (collectively the “Processed Goods”) shall be deemed to be made on our behalf as manufacturer under the terms of Art. 950 BGB, however, without involving any obligation on our part. The Processed Goods shall be deemed Conditional Goods as defined in (V)(1). In the event that any Conditional Goods are united by Purchaser to, or combined by him with, or transformed by him into, other goods, we acquire prorated title to the new asset, our co-ownership of the new asset corresponding to the ratio of the invoiced value of the Conditional Goods to the invoiced value of the other goods added. If our title is extinguished by combination or transformation into the new asset, Purchaser hereby assigns and transfers to us his title to the new asset prorate of the invoiced value of the Conditional Goods and shall keep such asset in his custody on our behalf and free of charge to us. Our co-ownership rights shall also be deemed Conditional Goods as defined in (V)(1).

(3) Purchaser may sell any Conditional Goods only in the ordinary course of business on his standard business terms and conditions and only while not defaulting, however, under the condition that any claims or receivables under the terms of (V)(4)–(V)(6) accrue to us. Purchaser shall not have the right to dispose of Conditional Goods in any other form.

(4) The receivables from the resale of Conditional Goods, together with any collateral security acquired by Purchaser from such resale, are hereby assigned to us and shall serve the same collateralization purposes as the Conditional Goods. If Conditional Goods are sold by Purchaser together with other merchandise not sold by us, Purchaser hereby assigns to us his receivable from such resale at the ratio the invoiced value of the Conditional Goods bears to the invoiced value of such other merchandise. When reselling any merchandise co-owned by us under the terms of (V)(2) hereof, the portion of the receivable that corresponds to our coownership shall be assigned to us. If Purchaser uses any Conditional Goods to perform a contract for work, the account receivable by Purchaser under such contract is hereby assigned to us in advance in the same proportion.          

(5) Purchaser will have the right to collect receivables from resale. This collection authority shall expire when revoked or cancelled by us, or when Purchaser has defaulted on payment, failed to honor a bill of exchange or applied for the institution of insolvency proceedings, whichever is earlier. We will not exercise our revocation right unless and until we become aware after the contracting date that our claim to payment under this or any other contract with Purchaser is or may be at risk due to Purchaser’s poor solvency. At our demand, Purchaser will be obligated to immediately notify his customers of the assignment to us and furnish us with the documents we require for collection.               

(6) No claims or receivables from resale shall be assigned unless made by nonrecourse factoring (to be communicated to us) for an amount in excess of our collateralized receivable. Our receivable shall become due immediately when the proceeds from factoring have been credited to Purchaser.

(7) Purchaser shall promptly notify us of any attachment, garnishment, pledging or other third-party interference with our rights, interests or title. Unless refunded by a third party, all costs incurred for the release from attachment, etc. as aforesaid or for the return of the Conditional Goods shall be for Purchaser’s account.      

(8) If and when Purchaser defaults on payment or fails to honor a bill of exchange when due, we have the right to take back the Conditional Goods and, where necessary, enter upon Purchaser’s premises for such purpose. The same shall apply in cases where, after the contracting date, we become aware that our claim to payment under this or any other contract with Purchaser is or may be at risk due to Purchaser’s poor solvency. Such take-back shall not be construed a cancellation of the contract, the applicable insolvency regulations remaining unaffected by the take-back.      

(9) If the invoiced value of existing collateral exceeds the collateralized receivables including incidentals (interest, charges, etc.) by altogether more than 50%, we agree, at Purchaser’s demand, to release collateral security pro rata at our sole discretion.

(VI) Qualities, dimensions and weights

(1) Grades, qualities and dimensions will be determined according to the agreed standards or, if none were agreed upon, the standards current at the contracting date or, in the absence of these, in accordance with good business practice. References to standards such as DIN/EN or their constituents such as material specification sheets, inspection certificates and testing standards, shall not be deemed warranted characteristics, nor shall the indication of grades, qualities, dimensions, weights and uses, or any declarations of conformity, manufacturer’s declarations or corresponding designations such as CE or GS.

(2)The weights stated shall be based on the weighing records taken by us or our supplier. Weights may at our discretion be determined without weighing, calculated according to standards (theoretical/rated weight) plus 2.5% (commercial weight). We may also establish weights theoretically without weighing according to product length and area, respectively, with dimensions being determined on the basis of approved statistical methods. The quantities, number of coils etc. stated in the delivery note shall not be binding in the case of goods billed by weight. The total weight of the consignment shall apply unless the weighing of the individual goods is standard trade practice. Any differences from the computed individual weights will be prorated among these.

(VII) Acceptance testing/inspection

(1) Any agreed acceptance test or inspection of the goods may only be conducted at our plant or warehouse immediately upon receipt of notification of readiness for inspection. Purchaser shall bear his own acceptance testing/inspection costs, the technical costs being charged to Purchaser in accordance with our (or the supplier plant’s) price list.

(2) If an acceptance test/inspection is performed either not at all, not in due time or not fully for reasons beyond our control, we may ship the goods without prior acceptance/inspection or store them at Purchaser’s expense and risk and issue the corresponding invoice.

(VIII) Shipment, passage of risk, packaging, part deliveries                     

(1) We will determine the mode, method and means of shipment, as well as the forwarder and carrier.

(2) If, for reasons beyond our control, transportation of the goods on the scheduled route or to the scheduled destination is frustrated or materially impeded within the scheduled period of time, we may deliver the goods via a different route or to a different destination, it being understood that Purchaser shall bear any additional costs. Purchaser will in advance be invited to comment.                   

(3) The goods will be delivered unpackaged and without rust protection. If packaging is customary in the trade business, we will deliver the goods packaged. We will arrange for packaging, protection and/or transport/handling supplies at Purchaser’s expense on the basis of our experience. These will be taken back at our warehouse. We will not assume the costs incurred by Purchaser for returning, or disposing of, the packaging.

(4) We will be entitled to reasonable part deliveries. Any reasonable excess or shortfall over contracted quantities will be permitted. The statement of an “approx.” quantity entitles us to overrun/underrun and bill agreed quantities by a maximum of 10%.

(5) We are entitled to obtain confirmation of receipt of goods from the recipient in electronic form.

(IX) Orders for delivery on call     

(1) In case of call orders, goods notified ready for shipment must be called off without undue delay, failing which we may, after written notice, ship them at Purchaser’s expense and risk or, at our discretion, store them in our warehouse and immediately invoice them.

(2) In case of standing orders entailing continuous delivery, we should be notified of calls for delivery and quantities of types/grades for roughly identical monthly quantities, failing which we may determine them at our own discretion.

(3) If the individual call-off orders exceed the total contracted amount, we will be entitled but not obligated to supply the excess quantity. We may invoice the excess quantity at the prices prevailing on the date of call off or delivery.

(X) Warranty              

(1) Any defects in the goods shall be notified in writing without undue delay, however no later than seven days after delivery. Defects which cannot be detected within this period despite extreme scrutiny shall be notified in writing immediately after being discovered, however no later than before expiration of the contractual or statutory limitation period with all processing to be ceased forthwith. We will not be liable in case of insignificant defects in value or fitness of the goods. In case Purchaser has resold, processed or modified the goods, he may only reduce the purchase price.

(2) In the event that a prior acceptance test or inspection of the goods has been performed, Purchaser may not claim any defects which could have been detected during such agreed test or inspection.

(3) If a claim is justified and asserted within the requisite period, we may at our discretion either repair or replace the defective goods (“subsequent performance”). If we fail or refuse to so remedy the defect, Purchaser shall be entitled to reduce the purchase price or – after the futile expiration of a reasonable grace period – rescind the contract. In the case of insignificant defects, Purchaser may only reduce the purchase price.

(4) All claims under this warranty are excluded if Purchaser does not immediately offer us the opportunity to verify the defect and, in particular, fails to furnish the defective goods or samples immediately at our request.

(5) If the goods are sold as lower-grade material (e.g. so-called “Ila” material), Purchaser shall not have any rights under this warranty with respect to the reasons for which the material was stated downgraded and those he could reasonably expect to find. We will not be liable for defects in the case of Ila material.

(6) We will bear the costs for subsequent performance through repair or replacement only up to a reasonable amount in individual cases, particularly in relation to the purchase price of the goods, but under no circumstances above 150% of the goods’ value. Expressly excluded are the costs of installing and removing the defective product, as are the costs incurred by Purchaser for remedying or repairing a defect himself unless the statutory conditions have been met for such cases. Nor will we assume any costs for the goods sold having been relocated to a place other than Purchaser’s domicile or branch except in cases where this is their stipulated use.

(7) The aforesaid shall apply without prejudice to Purchaser’s rights of recourse under the terms of Art. 478 BGB.

(8) We do not warrant any fitness for a particular purpose or use, unless expressly agreed in writing. The risk of fitness for a specific purpose or use of the goods shall be Purchaser’s sole responsibility.

(XI) General limitation of liability

(1) We (including our officers, employees and vicarious agents) will only be liable for the violation of contractual and non-contractual obligations (including frustration of contract, default, culpa in contrahendo, and tort) if attributable to intent, willful misconduct or gross negligence, it being understood that such liability shall be limited to the typical loss or damage reasonably foreseeable at the contracting date.

(2) These limitations shall not apply in the cases of (i) the violation due to intent or gross negligence of any material contractual obligations which jeopardize the achievement of the very purpose of the contract, (ii) statutory liability pursuant to the German Product Liability Act (“ProdHaftG”), or (iii) bodily injury to persons or health, nor (iv) in cases where, and to the extent that, we have either kept malicious silence about the existence of any defects or warranted their absence. The rules governing the burden of proof remain unaffected hereby.

(3) Unless otherwise agreed, contractual claims of Purchaser against us as a result of or in connection with the delivery of the goods shall become statute-barred one year after physical delivery of the goods unless such claims (i) refer to the indemnification for bodily injury or damage to health, or (ii) any other typical, foreseeable loss or damage, or (iii) are based on intent or gross negligence of the Seller. Our liability for intent, willful misconduct or gross negligence as well as the expiration of a statutory rights of recourse remain unaffected hereby. The period of limitation shall not recommence for subsequent performance (repaired or replaced goods).

(XII) Place of performance, jurisdiction, applicable law

(1) Place of performance for our deliveries shall be (i) for delivery ex works the supplying plant or (ii) for all other deliveries our warehouse. At our sole discretion, the place of jurisdiction shall be our registered principal place of business or Purchaser’s registered office.

(2) All legal relations between Purchaser and us shall be subject to German non-unified substantive law in addition to these Terms & Conditions. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980, shall not apply.

(XIII) Miscellaneous

(1) If a nonresident Purchaser based outside Germany or his representative or agent collects the goods, or if he carries, transports or ships the goods to a place outside Germany, such Purchaser shall furnish us with the required proof of exportation for tax purposes. Failing the production of such proof, Purchaser will be required to pay the statutory VAT for the invoiced amount at the applicable rate for shipments within the Federal Republic of Germany.

(2) In the case of shipments from Germany to another EU member state, Purchaser shall notify us of his VAT identification number under which his trade or business is taxed within the EU. Failing this, he will be required to pay the statutory VAT at the then current rate in addition to the agreed price. For each tax-free intra-Community delivery from the Federal Republic of Germany to another EU member state, the purchaser of the goods is obligated to provide us with proof of the actual arrival of the goods (confirmation of arrival) in accordance with §§ 17a and 17c of the VAT Implementing Regulation (Umsatzsteuer-durchführungsverordnung). Said proof shall be given on a form provided by us. Should such proof not be provided, the purchaser shall pay the VAT rate applicable to deliveries within the Federal Republic of Germany, calculated on the basis of the respective (net) invoice amount.

(3) Should any provision of these General Terms & Conditions of Delivery and Payment be or become ineffective or invalid, whether wholly or in part, the effectiveness and validity of the remaining provisions shall not be affected thereby.         



*)
These include in particular:

thyssenkrupp Steel Europe AG, Duisburg
thyssenkrupp Materials Services GmbH, Essen
thyssenkrupp Materials Trading GmbH, Essen
thyssenkrupp Materials Processing Europe GmbH, Krefeld
thyssenkrupp Plastics GmbH, Essen
Jacob Bek GmbH, Ulm

thyssenkrupp Schulte GmbH – General Terms & Conditions of Delivery and Payment; As at: May 2020

 

General terms and conditions of purchase

Validity
(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) For freight forward deliveries we shall only pay for the lowest available freight costs unless we specify a specific type of shipment.

(II) Prices

(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) 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).

(III) Scope of supply/service; ownership; usage rights; third-party 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.

(4) The Seller warrants that the contractual use of the service/supply (including all specifications, assembly instructions, technical data sheets and drawings for production) does not infringe any third-party proprietary rights (e.g. patents, utility models, designs, semiconductor rights, proprietary information rights and any similar rights in any jurisdiction whether entered in full or in part in any register or not).  Should third-parties assert claims against the Buyer or against customers of the Buyer or their customers due to the infringement of proprietary rights although the service/supply is used in accordance with the contract, the Seller shall, at the request of the Buyer, make all economically reasonable efforts to reach an amicable settlement with the third party out of court. Furthermore, the Seller shall be liable for all damages and expenses (including any contractual penalties and reasonable legal costs) incurred by the Buyer or the affected customer of the Buyer or his customers in connection with the (extrajudicial or judicial) dispute with the third party. The Seller‘s obligations under this paragraph shall not apply if the infringement of third-party proprietary rights is based on the further processing of the supply.

(IV) Quality

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

Insofar as supplies/services are provided under work and labor contracts:

(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 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.

(VIII) Termination

(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 § 648, 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) 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.

(4) 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.

(5) 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.

(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.

(XI) Guarantees/indemnification

(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 pledges 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 that he will store and process the Supplier’s data in accordance with the provisions of the GDPR and the BDSG. Detailed information on the handling of personal data can be found in the "Data Protection Information for Business Partners".

(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.

(XXI) Miscellaneous

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 Steel Europe AG, Duisburg
thyssenkrupp Materials Services GmbH, Essen
thyssenkrupp Materials Trading GmbH, Essen
thyssenkrupp Materials Processing Europe GmbH, Krefeld
thyssenkrupp Plastics GmbH, Essen
Jacob Bek GmbH, Ulm



thyssenkrupp Schulte GmbH – General Terms and Conditions of Purchase for commodities; As at: November 2020