General Conditions of Purchase
(Date of issue: June 2013)
§ 1 Scope
1. These General Conditions of Purchase („AEB”) apply to all sales contracts, works contracts, contracts of works, labour and material, and service contracts that the PlanET Biogastechnik GmbH („PlanET”) concludes with contractors, being entrepreneurs, legal persons governed by public law or public law corporations, or special funds under public law. The most current version of these AEB shall also apply to all future contracts between PlanET and the contractor.
2. These AEB shall apply exclusively. Deviating business conditions or amendments made by the contractor or third parties do not apply, even if PlanET does not explicitly contradict them. The same applies when PlanET refers to letters with General Terms and Conditions (AGB) of the contractor or third parties. It is the same when PlanET accepts goods or services from the contractor unconditionally.
3. Individually agreed terms in a given case between PlanET and the contractor take priority over these AEB. They must satisfy the requirement of the written form or must be confirmed by PlanET in text format (in writing or by e-mail/fax).
§ 2 Conclusion of Contract/Tender documents
1. Orders placed by PlanET, if set out in writing, are binding when the contractor does not contradict the order within seven workdays after the receipt of the order. Orders that are placed by the software used by PlanET are valid also when they are not signed. Orders that have not been placed in a written form need a confirmation in text format. Orders for a value of goods below 1,000.00 euros are excluded.
2. In case the orders include obvious errors and are incomplete, the contractor is obliged to inform PlanET about it. Otherwise, the contract will be seen as concluded.
3. PlanET is entitled to cancel the order in writing when the contractor does not confirm the acceptance within four weeks in writing. The decisive date is the receipt of the declaration of acceptance at PlanET. Order confirmations that are received after this deadline form a new offer of the contractor and need the acceptance confirmation by PlanET in text format.
4. PlanET reserves the proprietary right and the copyright especially in the figures, drawings, plans, calculations, instructions and the contractual documentations. The contractor is obliged to keep all documents confidential and to use them only for the agreed purpose. The secrecy obligation also applies after the completion of the contract without limitation. The obligation of secrecy ends when PlanET has generally made the documents publicly accessible. Objects that PlanET provides to the contractor remain the property of PlanET. PlanET reserves the right to re-demand the documents and objects.
§ 3 Delivery / Performance
1. Place of performance /Passing of the risk/Default in acceptance
1.1. If a delivery of goods is due, it will happen without special agreement as per DAP in compliance with Incoterms® 2010 (Incoterms is a registered trademark of the International Chamber of Commerce (ICC)) to the place specified in the order (place of performance). If no place is specified, the delivery is to be sent to the registered office of PlanET. The contractor informs the relevant contact person about the delivery, the acceptance shall be ensured and the local conditions shall be considered. In case the delivery has been dispatched, the contractor sends a dispatch note separated from the delivery note.. Each delivery is accompanied by a delivery note. It includes the date of issue and dispatch, the content of the delivery including the item number and the quantity, as well as the order code assigned by PlanET. The Invoice may not be attached to the delivery. The contractor takes back the packaging at the place of performance at its own cost if requested by PlanET. If an assembly is due, the place of performance will be the place where the installation has to be done.
1.2. The delivery time and the time of manufacture specified in the order are binding. The contractor informs PlanET immediately in writing when the agreed time of delivery and manufacture is not met. If the contractor delivers before the agreed date, it will be in PlanET’s opinion to accept or refuse the delivery. In the case of refusal, the contractor has to bear the cost of the repeated delivery.
1.3. The risk of accidental loss and deterioration of the goods or of the plant shall pass to PlanET with handing-over or acceptance at the place of performance. If PlanET pays without reservation, this shall not form an acceptance or approval.
1.4. Partial deliveries are only allowed when PlanET has expressly agreed.
1.5. The invoice includes the order number, as well as the item number and, if necessary, the project number and shall be sent separately. If important details are missing for processing, a delay will not be the fault of PlanET.
1.6. The contract shall inform itself about possible licensing duties on the basis of the legislation of the Federal Republic of Germany and the European Union, as well as of the country in which the relevant place of performance will be and informs PlanET in a timely manner. It shall forward the information during the order processing. Furthermore, the contractor is obliged to inform itself of possible trading prohibitions and to forward its knowledge to PlanET. Referring the performance at the place of performance, the contractor has to ensure that the applicable regulations will be met.
1.7. All works and deliveries are accompanied by the corresponding documentation, if necessary.
2. Claims for defects
2.1. For a delivery, PlanET can only claim for defects when it attended to its obligation to examine and to give notice of defects immediately and in a proper way. After delivery, PlanET shall immediately examine the goods; so far this is feasible in terms of a proper business routine. PlanET shall immediately, at the latest within 14 calender days after the receipt of the delivery, notify recognizable damages in writing. Measure of the test is an external assessment with receiving inspection, as well as a quality check by sampling. PlanET shall immediately, at the latest within 14 calender days after discovery, notify damages which cannot be detected within the course of this inspection and occur later. If PlanET does not send this notification, the goods will be seen as approved in view of the respective damage. The construction of a plant is subject to the statutory regulations.
2.2. The contractor provides the deliveries and performances in compliance with the generally accepted rules of technology and considering the applicable publications of rules, especially VOB, VDE, VDI and the Machinery Directive.
2.3. In case of reasonable notice of defects, the contractor shall be obliged to supplementary performance (PlanET can decide on subsequent improvement or replacement), if this is deemed acceptable to it. If the contractor does not comply with its obligation within a reasonable time period, or the supplementary performance fails, PlanET shall be entitled to reduce the purchase price or to withdraw from the contract. If there is an imminent danger, or another need to urgency, PlanET shall be entitled to immediately eliminate the defect itself at the contractor’s expense, or by a third party. For further reaching claims, especially reimbursement of expenses or claims for damages due to defects or consequential damages, the statutory regulations shall apply.
2.4. The contractor has to bear the expenses, required for the purpose of examination and supplementary performance, especially transport, travel, labour and material expenses, in case a defect actually occurs. In case PlanET’s request on removal of defects turns out to be unjustified, the contractor can only require to get the incurred costs reimbursed from PlanET, when PlanET recognized or did not recognize recklessly that no defect existed.
2.5. The claims for defects generally fall under the statute of limitations after 24 months after commissioning, however at the latest within 36 month after delivery. If the delivered good is a building or a business matter which is used for a building in accordance with its usual purpose and its defectiveness has caused the defect of the building (building material), the term of limitation shall be five years after passage of risk (§ 438 subparagraph 1 No. 2 BGB (German Civil Code)). If the performance to be provided by the contractor is a building, a part of a building, or a plant, whose success depends on the planning and monitoring services, the term of limitation shall be five years after the passage of the risk (§ 634a subparagraph 1 No. 2 BGB).
2.6. If the performance is provided on the basis of a contract for labour and materials, the above mentioned regulations shall apply considering the § 651 BGB.
2.7. If the service is due, with infringement of the obligations of the service agreement the legal consequence shall follow the statutory regulations notwithstanding the above mentioned items.
3. Producer’s liability / infringement to third parties
3.1. In the case of a defect or a product damage, the contractor has to keep PlanET indemnified against third parties’ claims insofar as the cause is set in its territory and organization sector and incidentally, it is not liable itself in the relation to third parties. If PlanET has an obligation to recall due to the product damage, the contractor has to bear all associated costs and has to indemnify and keep indemnified PlanET from and against it. PlanET shall notify the contractor about content and scope. Further statutory claims remain unaffected.
3.2. The contractor shall cover and maintain a product liability insurance with a lump sum amount of at least 10 million euros per personal / property damage.
3.3. The contractor takes over to consider third party rights, especially intellectual property rights. In case of an infringement, it indemnifies and keeps indemnified PlanET from and against third-party claims for damages.
§ 4 Force Majeure
1. In the event of Force Majeure, PlanET shall be entitled to refuse the acceptance of the delivery or the performance of a work during the duration of the hindrance plus a reasonable start-up time. If the event that the Force Majeure is not only temporary, PlanET will be allowed to withdraw from the part of the contract which has not been fulfilled completely or partially, insofar this is reasonable for the contractor. Force Majeure is also equivalent referred to strike, lockout, or unexpected, unavoidable circumstances, e.g. operating disruption or transport delays or interruptions through no fault of PlanET, lack of raw materials or energy through no fault of PlanET, which render the timely acceptance or approval impossible despite of reasonable efforts.
2. If the contractor exclusively owes agreed services (§ 611 BGB), § 4 subparagraph 1 of AEB shall apply provided that the parties shall be due to the right of cancellation instead of the right of withdrawal.
3. PlanET shall notify the contractor immediately when a case of Force Majeure in the sense of § 4 subparagraph 1 AEB, as explained above, occurs and shall seek to keep any adverse affects on the contractor as low as possible.
§ 5 Terms of payment
1. The prices apply to the scope of performance and delivery specified in the order and are binding, unless otherwise agreed. The prices are plus the current statutory VAT in the legally fixed value in euros. They include all performances and ancillary services of the sales person.
2. Unless stipulated otherwise in individual contracts, the invoicing amounts are to be paid within 20 bank working days (Monday – Friday) after receipt of the invoice and delivery or acceptance at a discount of 3 % or within 30 bank working days net. The decisive date for a money transfer is the receipt of the transfer order at the bank of PlanET. Delays in execution caused by the bank shall not be charged against PlanET.
3. If PlanET is in default with payment, the contractor can require default interest rates of 5 percentage points above the base rate (§ 247 BGB).
4. If, after the contract has been concluded, it becomes apparent that PlanET’s claim on fulfilment or supplementary performance against the contractor is at risk due to the contractor’s poor ability to perform (e.g. by petition for bankruptcy), PlanET shall be entitled to withhold 10% of the final accounts sum as security until the term of limitation for the rights arising from product defects has expired. If the contractor does not provide the required fulfilment or supplementary performance within the reasonable period granted to it, PlanET shall be entitled to withdraw from the contract without further fixing of a time limit.
5. Offset rights and/or rights of retention are only due to the contractor, when its counterclaims have been legally established or accepted by PlanET in writing. In addition, the contractor will only have the right of retention when its counterclaim is based on the same contractual relationship.
6. If PlanET has to pay a down payment of more than 5,000 euros, the contractor has to provide to PlanET, in advance, a down payment guarantee of the contractor’s bank for the down payment value for the period until a performance of an appropriate equivalent amount has been delivered. Fulfilment
§ 6 Reservation of title
1. The contractor’s reservations of title shall only apply, so far they refer to PlanET’s obligation to pay for the respective products on which the contractor reserves the proprietary rights Especially, extended or prolonged reservation of title are not allowed.
The goods are to be assigned to PlanET unconditionally and without regard to the payment of the price. If PlanET, however, in the individual case, accepts an offer of the seller for assignment which depends on the payment of the purchase price, the seller’s reservation of title shall expire, at the latest with the payment of the purchase price for the goods delivered. PlanET shall remain entitled in the regular course of business, also before the payment of the purchase price, to resale the goods under advance assignment of the requirements arising from this (alternative validity of the simple reservation of title extended to resale). With this, in each case, all other forms of the reservation of title are excluded, especially the extended and forwarded reservation of title, and the reservation of title which is extended to the further processing.
2. Processing and transformation shall always be done for PlanET as manufacturer, however, without any obligation for PlanET. PlanET automatically acquires (part) ownership of the matter which has been newly manufactured from the objects delivered, namely in the percentage of the value of the delivered matter referred to the value of the newly manufactured matter, whereby the date of the completion of the manufacture shall be decisive.
§ 7 Change of contractual conditions
PlanET can change the contractual conditions after the conclusion of the contract, when, due to unpredictable changes that have not been caused by PlanET and that cannot be affected by PlanET, the balance between performance and counter-performance, which existed at the date of the contract conclusion, is disturbed in a not inconsiderable extent and this distortion requires an adjustment of the contractual provisions, because the parties cannot continue or perform the contract without a change or would only be able to do it with difficulties. An unpredictable distortion especially comes into consideration, when a contractual clause is declared to be invalid due to a change of case law, or when applicable legal standards or regulatory actions which are decisive for the provision of the contractual performances change in a way that an adjustment of the contractual provisions will be necessary.
§ 8 Final Conditions
1. Place of jurisdiction for all disputes and types of procedure from this legal relationship, including its effectiveness, shall be Vreden, so far the contractor is a merchant, public law entity or a special fund under public law and unless otherwise agreed. PlanET shall be entitled also to file a suit at the place of the contractor’s registered office.
2. All rights and obligations from the contracts concluded with PlanET shall exclusively be governed by the laws of the Federal Republic of Germany as applicable between German domestic parties with exclusion of the UN-Convention on Contract for the International Sale of Goods (CISG).
3. Additional oral agreements and subsequent supplements shall only be valid when they are confirmed by PlanET in writing. The same shall apply to other declarations relevant in law. The requirement of the written form can only be waived in writing.
4. In case any provision in these general business conditions is invalid, the validity of the other provisions shall not be affected.