For use in all contractual relationships between companies, legal entities under public law and special funds under public law (hereinafter “Supplier”) and a company of the Transporter Industry International Group, this includes: SCHEUERLE Fahrzeugfabrik GmbH - Otto-Rettenmaier-Straße 15 - D-74629 Pfedelbach and/or KAMAG Transporttechnik GmbH & Co. KG - Liststraße 3 - D-89079 Ulm and/or NICOLAS Industrie S.A.S. - RN 6 BP 3 - F-89290 Champs-sur-Yonne TII INDIA Private Limited - Plot2, Sector 14, Phase-II - IMT Bawal - Haryana, 123501 India
The Supplier has read and understood these Terms and Conditions of Purchase. He hereby declares that he accepts them as legally binding with the written acceptance of orders or with the start of their fulfilment.
I Governing conditions
The legal relationship between the Supplier and Purchaser is exclusively based on these Terms and Conditions of Purchase and any other agreements in the legal relationship. The Purchaser is not prepared to conclude a contract on the basis of conflicting Supplier Terms and Conditions. These shall not become part of the contract even if they are not expressly contradicted in individual cases. Subsequent amendments or additions must be made in writing. Should any provision of these Terms and Conditions of Purchase be or become void for any reason, the validity of the remaining provisions shall not be affected thereby.
II- Confidentiality, use of means of production, copyrights
All commercial and technical details which are not in the public domain and which become known through the business relationship, shall be treated by the contracting parties as business secrets. Objects of any kind (drawings, models, templates, samples, tools, etc.) which have been produced according to the specifications of the Purchaser may not be handed over or otherwise made accessible to unauthorised third parties, offered or sold without the Purchaser’s special written consent. Subcontractors shall be obligated accordingly. The reproduction of such items is only permitted within the scope of operational requirements. Upon termination of the business relationship, such items, also insofar as they have been manufactured or otherwise procured by the Supplier for the purpose of fulfilling the order, shall be returned to the Purchaser in full, including any copies. All possible copyrights or industrial property rights in relation to the delivery and in relation to the drawings, templates, samples and tools etc., required for the manufacture of the delivery, shall be the exclusive property of the Purchaser. The Supplier shall be liable for ensuring that the delivery and use of the purchased items does not infringe the property rights of third parties. He shall indemnify the Purchaser and his customers against all claims arising from the use of such property rights.
Reference may only be made to the business relationship with the Purchaser in the Supplier’s advertising if the Purchaser has agreed to this in writing. The company logo and trade marks of the Purchaser, as well as part numbers, shall be affixed to the ordered goods if the drawing so requires or if an instruction has been given to do so. The items marked in this way may only be delivered to the Purchaser. Returned rejected goods, marked with the company logo and trade marks of the Purchaser, shall be rendered unusable.
Analogous to the applicable terms and conditions, delivery contracts, orders, delivery call-offs and their acceptance as well as their amendments and adjustments shall only be binding if they have been made in writing; these may also be made in text form/remote data transmission (fax, e-mail, EDI, WebEDI). Within the scope of reasonableness for the Supplier, the Purchaser may demand changes to the structure and design of the delivery item. The Supplier is obliged to make such changes without delay. In this context, the effects, in particular with regard to possible additional or reduced costs as well as the delivery date, shall be settled by mutual agreement in an appropriate manner.
The Supplier is not authorised to make any changes in relation to goods (in particular with regard to specifications, drawings, design, structures, time and place of delivery, packaging, quality, quantities and means of transport) without the prior written consent of the Purchaser.
If the Supplier does not accept the orders within 10 days of receipt, the Purchaser shall be entitled to revoke them. Delivery call-offs shall become binding no later than 10 days after receipt if the Supplier does not object to them by then. Quotations/cost estimates are binding and are not to be remunerated.
Agreed dates and deadlines are binding. The Supplier shall be obligated to compensate the Purchaser for the corresponding damage caused by delay in accordance with the legal provisions.
Any material provided shall remain the property of the Purchaser. The Purchaser retains ownership of material provided in such a way that the Supplier manufactures the items to be delivered in accordance with the order. The contracting parties agree that the Purchaser is entitled to ownership of these items in the respective state of manufacture. The Supplier shall store the items provided to him free of charge and shall take care to store and insure them properly (see point V).
The Supplier may not transfer rights and obligations arising from an order or a call-off, in whole or in part, without the prior written consent of the Purchaser. The Supplier may not relocate the place of production and/or dispatch of the goods without giving the Purchaser reasonable notice in writing.
IV- Transfer of risk, delivery note
Unless otherwise agreed, the transfer of risk of the goods from the Supplier to the Purchaser shall take place in accordance with the INCOTERMS mentioned in the call-off/order. The delivery shall be accompanied – for each order number – by a delivery note containing all order and part numbers.
V- Customs duties, origin, export control and insurance
The supplier observes the legal requirements of the supply chain and undertakes to provide corresponding evidence by means of certificates or declarations at the request of the Purchaser (e.g. security declaration as an authorised economic operator AEO, compliance declaration with reference to the C-TPAT initiative). The Supplier shall attach a commercial invoice in English to the shipping documents for customs purposes. For his goods, the Supplier is obliged to provide a declaration of origin in which he fills in a “long-term supplier’s declaration” form in accordance with Regulation EC No. 1207/2001 and submits it to the Purchaser. The Purchaser must be notified immediately, in writing, of any changes in the origin of the goods. Insofar as the Supplier delivers goods which may be subject to preferential treatment in the importing country, he shall enclose a corresponding proof of origin for each such delivery. The Supplier shall take out insurance at his own expense with reputable and solvent insurance companies covering the Supplier’s liability towards the Purchaser and third parties to the extent required. The Purchaser is entitled to demand proof of the relevant insurance policies. Unless otherwise provided for in the INCOTERMS referred to above, the Supplier shall oblige any forwarder employed by him to insure the consignments of goods.
VI- Quality and Declaration of Conformity
The products supplied must comply with all the regulations, directives and standards relating to the product in question. If a manufacturer’s declaration or a declaration of conformity (CE) within the meaning of the EC Machinery Directive / Special Vehicles Directive is required for the product, the Supplier must draw it up and make it available immediately on request at his own expense; this includes both the relevant operating instructions and risk assessments.
VII - Prices, payment
The agreed prices are in principle to be understood as fixed prices according to the agreed INCOTERMS to the stated or agreed delivery address, including packaging. Unless otherwise agreed, payment shall be made within 60 days strictly net, in each case after delivery or, in the event of a later invoice date, from the latter. It is paid by bank transfer (possibly by cheque if applicable). The receipt of the cheque by the Supplier is decisive for the timeliness of a cheque payment. Without the prior written consent of the Purchaser, which may not be unreasonably withheld, the Supplier shall not be entitled to assign its claims against him or to have them collected by third parties. Settlement between the Supplier and the Purchaser shall be effected by means of a credit note procedure, insofar as this has been agreed. Unless settlement by credit note procedure has been agreed, an invoice shall be issued for each delivery note. Payment for goods by the Purchaser does not mean that the goods are deemed to be in order or accepted. In the event of defective delivery, the Purchaser shall be entitled to withhold payment, in proportion to the value, until proper performance is rendered.
VIII- Receiving inspection
For quantities, dimensions and weights, the values determined by the Purchaser during the receiving inspection shall be decisive. Excess or short deliveries compared to the order quantity are not permitted.
IX- Notification of defects
Defects in the delivery shall be shown to the Supplier immediately after their discovery, obvious defects at the latest within 14 days from receipt of the delivery at the respectively named receiving point. There are no further obligations to inspect and give notice of defects.
The Supplier shall assume full warranty for the quality of workmanship and performance of the delivered goods for a period of at least 24 months, calculated from the date of actual use of the end product by the Purchaser, but no longer than for a period of at least 30 months from delivery of the goods to the Purchaser’s factory. In the event of defective delivery, the Purchaser shall first give the Supplier the opportunity to sort out defective parts on site and then to rectify the defect or to make a subsequent delivery, unless this is unreasonable for the Purchaser. If the Supplier fails to meet a deadline set by the Purchaser in this respect, the reasonableness of which shall be determined by the interests of both parties, the Purchaser shall be entitled to arrange for the rectification or replacement itself at the Supplier’s expense. If the same or similar goods are repeatedly delivered defectively, the Purchaser shall be entitled to withdraw from the contract after a written warning in the event of a repeated defective delivery, also with regard to the scope of delivery not yet fulfilled. In addition to the right to demand rectification of defects, in accordance with this section, the Purchaser shall be entitled to the above-mentioned warranty rights. The claims regulated in this section in favour of the Purchaser shall, like the legal warranty claims, be fulfilled at the Purchaser’s option either at its registered office or, if the Purchaser has also delivered the defective delivery item as a component of its product, at the place where the delivery item was taken by its customer for the intended purpose. If a claim is made against the Purchaser in accordance with the principles of product liability, for reasons falling within the Supplier’s area of responsibility, the Supplier shall indemnify the Purchaser against the claimant to the extent that the Purchaser would also be directly liable.
If measures are necessary to prevent damage (e.g. recall actions), the Supplier shall be liable to the extent that the measure is attributable to the defect of a delivery item. As soon as there are indications of a possible claim against the Supplier in accordance with this section, the Supplier shall be fully informed and given the opportunity to investigate the claim and its cause.
XI- Retention of title
In the event of extended retention of title, consent shall be deemed to have been granted. The Supplier retains title to all goods delivered by him until payment has been made in full; in this respect, all deliveries shall be deemed to be one continuous delivery transaction. In the case of a current account, the reserved property shall be deemed security for his balance claim.
If the goods are combined by the Purchaser with other items to form a single item and if the other item is to be regarded as the main item, the Supplier shall be assigned proportional joint ownership insofar as the main item belongs to him. If the delivered goods are resold by the Purchaser, in accordance with their intended use, the Purchaser hereby assigns the claims against the final customer arising from the sale, including all ancillary rights from the delivery, until the Purchaser’s claim from the delivery transaction has been settled in full. The supplier shall release the securities held by him insofar as their value exceeds the claim to be secured by more than 20%.
XII - Spare parts and readiness to deliver
The Supplier is obligated to deliver spare parts for the period of ordinary technical use, but at least ten years after the last delivery, under reasonable conditions.
XII- EDP Data Protection
The Purchaser shall store personal data of the Supplier within the scope of the business relationship by means of data processing. Upon written request of the Purchaser, the Supplier shall ensure compliance with the international information security standards ISO27001, which shall be proven by means of a corresponding certification.
XIII- Force majeure
Force majeure, industrial disputes, riots and other unforeseeable, unavoidable and serious events shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. This also applies if these events occur at a time when the contracting party concerned is in default. The contracting parties are obliged to provide the necessary information without delay within the bounds of what is reasonable and to adjust their obligations to the changed circumstances in good faith.
XIV- Social responsibility
The Supplier is obligated not to commit or refrain from any actions that could lead to criminal liability for fraud or breach of trust, insolvency offences, offences against competition, child labour, granting or accepting advantages, bribery, corruption or comparable offences by persons employed by the Supplier or other third parties. In the event of a breach of this provision, the Purchaser shall be entitled to withdraw from or terminate all legal transactions with the Supplier without notice and to break off all negotiations. Without prejudice to the aforementioned, the Supplier shall comply with all laws and regulations affecting it and the business relationship with the Purchaser.
XV- General provisions
If a contracting party ceases to make payments or if bankruptcy proceedings are instituted against its assets or if judicial or extrajudicial composition proceedings are instituted, the other party shall be entitled to withdraw from the contract for the part not performed. Insofar as no withdrawal takes place, the Purchaser may retain an amount of at least 10% of the remuneration as security for the contractual claims until the expiry of the contractual warranty period. The place of performance for both parties shall be the place of receipt designated by the Purchaser. Something else may be agreed for the delivery. The place of jurisdiction shall be the registered office of the Purchaser. The law of the Federal Republic of Germany shall apply exclusively, unless otherwise agreed. The application of the Hague Conventions Relating to a Uniform Law on the International Sale of Goods (11/04/1980) is excluded. The contractual language is German; any translations into other languages are expressly non-binding.