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General purchasing conditions for supplies and services (GPC)

1. General, scope of terms

1.1 The following GPC constitute a fundamental part of the orders covering the supply of goods and services (jointly called ‘services’) of Thyssen Schachtbau GmbH (hereinafter referred to as the Principal). They shall be applicable in relations with companies, legal entities under public law and public-sector funds (hereinafter referred to as the Contractor).

1.2 In accepting the GPC the Contractor agrees to these conditions being exclusively valid for the order in question and for any follow-up transactions. In the event of an agreement of different terms and conditions for a certain order, the present terms and conditions remain subordinate and complementary.

1.3 The validity of any deviating terms and conditions applied by the Contractor shall be excluded even in the event that they have been transmitted to the Principal in a letter of confirmation or in some other manner.

2. Offers, subsidiary agreements and inadmissible advertising

2.1 Additional verbal agreements and the exclusion, variation and/or amendment of these GPC must be confirmed in writing by the Principal in order to be effective.

2.2 The use of orders for the purposes of references and/or sales promotion requires the prior written agreement of the Principal.

3. Drawings, models, tools

All figures, drawings, models, samples, calculations, design drawings and other documents which have been made available or paid for by the Principal for the performance of the order, shall remain his property and/or he shall retain copyright and/or other industrial rights; the said documents shall only be used for work required for the performance of the order and, without the express written approval of the Principal, shall neither be reproduced nor disclosed to third parties. On fulfilment of the order the said items shall be returned to the Principal unrequested and free of charge. The Contractor is liable to the Principal for all damages arising as a result of any culpable breach of his obligations in this respect.

4. Responsibility for technical information

The Principal’s approval of drawings, calculations and other documents shall not affect the sole responsibility of the Contractor for the goods and services sold. This also applies to proposals, recommendations and other forms of involvement on the part of the Principal.

5. Inspections

After timely prior announcement the Principal, his staff and/or duly appointed third parties shall be given access at any time to the manufacturing and production facilities of the Contractor and/or his sub-contractors in order to inspect, for example, the progress of work, the use of appropriate materials, the deployment of suitably qualified personnel and the professional execution of the services. Such inspections shall be undertaken without any legal effect for possible acceptance; such an inspection shall neither replace an acceptance nor restrict in any way the sole responsibility of the Contractor for his services, and in particular no defence of contributory default of the Principal may be derived from such inspections.

6. Spare parts

The Contractor shall ensure that spare parts and consumables shall be available for every order for a period of at least ten years after the expiry of the warranty period.

7. Transport of hazardous goods, labelling of hazardous substances, packaging

7.1 It is the responsibility of the Contractor to check, before acceptance of the order, whether the goods and/or their components as specified in the order are classified as hazardous goods in their country of origin, country of destination and/or all transit countries (e.g. paint stuffs, adhesives, chemicals or any products classified as flammable, oxidising, explosive, combustible, toxic, radioactive, corrosive or liable to spontaneous combustion). The Principal shall be fully and immediately informed by the Contractor in such cases. The statutory declarations legally required for the shipment of such goods, in a properly completed and duly signed form, shall be sent to the Principal at the latest with the Contractor’s written confirmation of the order.

7.2 The Contractor is obliged to heed the applicable national and international requirements in respect of the packing, labelling and declaration of hazardous goods, and in particular the German Maritime Dangerous Goods Directive - Sea IMDG Code Air Freight UNICAO IATA RAR US DOT Rail EVO/RID and the Dangerous Goods Directive – Road and Rail ADR, along with the General Directive for the Transport of Dangerous Goods by Road. If the recipient country has been specified in the order, any possible deviating and/or additional national requirements imposed by that country shall also be observed.

7.3 The Contractor shall be responsible for any and all damage resulting from incorrect information in the binding declarations or from a failure to observe applicable regulations covering the handling of the said dangerous goods (packing, dispatch, storage, etc.).

7.4 The Contractor shall take back packaging materials for the Principal free of charge.

8. Export licences

The Contractor shall be obliged to inform the Principle immediately and in writing whether and to what extent state export licences will be needed or similar legal or official requirements have to be fulfilled for the whole or for any part of the order, or whether these are subject to US export restrictions.

9. Prices, pricing, payment conditions, delays and default

9.1 The agreed contract prices are legally binding and are quoted exclusive of value added tax.

9.2 Unless expressly agreed in writing elsewhere, the prices are deemed as FCA (named place) as per INCOTERMS 2000.

9.3 Unless expressly agreed in writing elsewhere, payment shall be made within 14 days following the complete and correct fulfilment of the contract and the receipt of invoice less 3% discount, or within 30 days net.

9.4 Where instalment payments have been agreed, receipt of the invoice shall be the sole criterion for the beginning of the term, unless the performance of certain services and/or the provision of securities have been agreed as prerequisites. Invoices for services that the Principal has committed to a third party, with the knowledge of the Contractor, only become due for payment if and to the extent that the Principal has received payment by the said third party for the services or parts thereof. Where the Principal has lodged a security with the third party because of possible default or failing, this shall only apply when the Contractor has lodged an equivalent amount of security with the Principal. Any agreement as to instalment payments shall not release the Contractor from his obligation to show and charge all services in an itemised final invoice.

9.5 Default of payment after the due date shall only apply following an explicit reminder.

9.6 The Principal shall not be deemed to be in default of payment if he has made an honest mistake about the existence of a plea against the claims of compensation of the Contractor or a claimed right of retention.

9.7 If default of payment on the part of the Principal is based on simple negligence, the default interest payable on the basic interest rate (§ 247 BGB/German Civil Code) shall be limited in scale, unless the Contractor furnishes proof that he has incurred further damages as a result of the delay.

9.8 Payments made by the Principal in no way imply recognition of proper and perfect performance in the sense of an acceptance of the services.

10. Set-off, right of retention, intercompany charges

10.1 Rights of set-off and retention are available to the Principal within the scope of the legislation in force.

10.2 Rights of set-off and retention are also available to the Principal on the basis of claims that he has against companies that are connected with the Contractor under the terms of § 15 of the German Stock Corporation Act.

10.3 Disputes arising as to the amount of compensation to be paid to the Contractor do not entitle the Contractor to suspend his services, either wholly, in part or on a temporary basis.

11. Delivery times, delayed delivery

11.1 The delivery time set out in the contract is binding. Early deliveries and/or partial deliveries require the express written agreement of the Principal.

11.2 The Contractor undertakes to notify the Principal immediately in writing in the event that circumstances arise or are identified that will result in failure to meet the agreed delivery deadline.

11.3 The Contractor undertakes, in the event of any delay for which he is answerable, to pay a contractual penalty amounting to 0.5% of the net total contract price, and to a maximum amount of 5% of the net total contract price, for each working day commenced. This shall not affect any additional rights and claims of the Principal, particularly in respect of compensation for damages; any forfeited contractual penalty shall be taken into account in the claim for compensation. The Principal need not exercise his assertion of the contractual penalty at the time of acceptance and can in fact assert this at any time before the final payment is made.

11.4 Irrespective of his other rights the Purchaser may, after the expiry of an appropriate period of grace that he has set, or if the Performance concerned is no longer of interest to him as a consequence of the delay, or if there is danger in the delay, or in order to avoid further loss or damage, or in the case of urgent necessity, and without having set any period of grace, have the work or services as yet unperformed by the Contractor executed by a third party at the Contractor's expense. In any case of substituted performance by the Principal the Contractor shall, at his expense, provide all information required for this purpose to the Principal and deliver the documents in his possession and, in case of possible own industrial rights or industrial rights of third parties in such documents, procure appropriate rights of use to the extent required for the said substituted performance and/or indemnify the Principal without delay from any claims arising from such third-party rights. 
With the conclusion of this contract the Contractor agrees to the use of his industrial rights in the event of substituted performance by the Principal or by an appointed third party. The claim for payment of the contractual penalty arising prior to the submission of the order to the third party has to be met in any event.

12. Assignment of claim

Claims made against the Principal may only be assigned with his previous written agreement. This does not apply to assignments made as a result of extended retention of title. § 354a of the German Commercial Code remains unaffected.

13. Transfer of risk

The Contractor bears the risk in accordance with the delivery conditions agreed in clause 9.2.

14. Documents

The Contractor undertakes to enter the Principal’s order number and other contractually agreed labelling marks on all shipping documents and/or delivery notes and invoices, failing which the Contractor alone must bear any possible consequences (such as further delays and additional charges).

15. Warranty, complaints, recourse

15.1 The Contractor warrants that his performances correspond to the generally accepted rules of technology and latest practice, to all relevant standards and regulations pertaining in the Contractor’s country and in the country of destination (including those relating to health, safety and accident prevention) and that they have the agreed and guaranteed properties and are in other respects free from any quality defects and legal defects.

15.2 The Contractor undertakes to examine the performances immediately for quality and/or quantity defects according to the particular circumstances and the climatic and other requirements pertaining at the respective point of use and to report any such defects without delay following their discovery.

The statutory warranty claims, including those rights laid down in § 478 of the German Civil Code (recourse by the company), are available to the Principal without restrictions. In each case the Principal can, at his discretion, require the Contractor to remedy the fault or provide compensation; the Contractor shall bear all expenses associated with the remedial action or compensatory service.
The Principal is also entitled, after informing the Contractor to this effect, to remedy the fault himself at the Contractor’s expense where there is danger in delay or where particular urgency exists, or if an appropriate period of grace already given to the Contractor has expired without outcome, or if subsequent rectification has failed, or if such action appears indicated for the purpose of minimising the damage. 
The Principal is entitled to request advance payment from the Contractor for any expenses necessarily arising from such an action.

15.4 Insofar as the Principal has the right under clause 15.3 above to remedy the defects himself, clause 11.4 shall apply in respect of the Contractor’s obligations. 
All costs resulting from the rectification of the defect, particularly in respect of dismantling, assembly, travel, freight, packaging, insurance, customs duties and other public charges, tests and technical certifications, shall be borne by the Contractor.

15.5 Defect-related claims by the Principal shall lapse after 36 months, unless otherwise agreed in writing, calculated from the date of transfer of the risk (clause 13). Where the performance relates to a specific building structure and has caused this structure to be defective, the period of limitation shall be 5 years.
Longer legal limitation periods shall be unaffected; §§ 438 paragraph 3, 479 and 634a paragraph 3 of the German Civil Code shall also remain unaffected.

15.6 To the extent that and for as long as performances cannot be used in accordance with the contract as a result of rectification works undertaken by the Contractor, the period of guarantee for these performances is extended by the period of the interruption. For performances repaired under guarantee and/or replaced, the period of limitation begins from new again with the acceptance of the repair and/or the replacement performance, but not for longer than five years, and in the case of building work not for longer than seven years following the transfer of risk.

15.7 The provisions of § 476 of the German Civil Code shall apply accordingly, whereby the period is extended to 18 months.

16. Product liability, indemnification, insurance cover

16.1 Insofar as the Contractor is responsible for a product fault or for the infringement of statutory/official safety requirements he shall indemnify the Principal from any possible third-party claims for compensation at the first written request. The Principal shall also be entitled to reimbursement of all expenses, particularly those that he has incurred in connection with any recall actions that he has instigated in this regard; the Principal shall notify the Contractor in advance of the type and scope of such recall actions, where possible and reasonable. All rights to continued legal claims remain reserved.

16.2 The same provisions shall apply where product defects can be attributed to performances undertaken by upstream contractors or sub-contractors engaged by the Contractor.

16.3 The Contractor undertakes to maintain sufficient insurance cover for product liability and to furnish at any time written proof of this to the Principal at the latter’s request, notably in the form of written confirmation from the Contractor’s insurer.

17. Liability for environmental damage

The Contractor accepts liability for all damage arising in connection with his performances as a result of contravening the provisions of the laws protecting the environment (such as the laws on protection from emissions, used-oil and water management laws, the laws on the removal of waste and/or ordinances pertaining to them). He shall indemnify the Principal from any possible third-party claims for compensation at the first written request and shall further bear the cost of any damage caused to the Principal.

18. Property rights

The Contractor shall be responsible for ensuring that no third-party rights are infringed in connection with the execution of the orders. The Contractor shall indemnify the Principal from any claims arising from third parties at first written request. The obligation of indemnification shall apply to all expenses necessarily incurred by the Principal as a result of and/or in connection with such claims.

19. Subcontracting, partial invalidity

19.1 The Contractor shall require the prior written approval of the Principal for the exercise of retention of rights against his sub-contractors. For the purpose of avoiding the exercise of rights of retention on the part of the Contractor’s downstream contractors the Principal is entitled to make direct payments to such downstream contractors insomuch as these relate to justified claims by the sub-contractors and apply as payments in lieu of performance in relation to the Contractor. Justified claims of the downstream contractor towards the Contractor, pursuant to the preceding sentence, include those in which the Principal has made an honest mistake about the status of such claims. In each case third parties, and particularly sub-suppliers and sub-contractors that the Contractor has mandated to fulfil his obligations under the order or are otherwise engaged by him in connection with his performances, are deemed to be agents of the Contractor.

19.2 In the event that any individual provisions of these terms and conditions become ineffective this shall not affect the validity of the remaining provisions. The contracting parties commit themselves to replacing the invalid contract provisions immediately with a supplementary agreement that comes closest to meeting the economic outcome of the invalid provision.

20. Place of fulfilment

The place of fulfilment for the Contractor’s performance is the agreed place of use, and for the Principal’s payments the place of fulfilment is his place of business.

21. Place of jurisdiction, applicable law

21.1 Provided the Contractor is classified as a fully qualified merchant, a legal entity under public law or a public-sector fund, the place of jurisdiction for all proceedings shall be the Principal’s place of domicile; the Principal may also bring an action against the Contractor at his general place of jurisdiction.

21.2 The contract governing legal relations between domestic contracting parties is subject to the national law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

May 2010
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