General Purchasing Terms and Conditions
for Goods and Services
of the Companies of BARD Group
(BARD Engineering GmbH, BARD Emden Energy GmbH & Co. KG, BARD Schiffsbetriebsgesellschaft mbH & Co. Natalie KG, BARD Building Management GmbH, BARD Service GmbH, CSC Cuxhaven Steel Construction GmbH)
- Scope of application
- These general purchasing terms and conditions apply to all orders of goods and services and their settlement by companies of BARD Group, as clients, with their contractors. The purchasing terms and conditions apply exclusively; contrary terms and conditions or terms and conditions of the contractor that deviate from those of the client will not be recognized by the client, unless the client explicitly consents to their applicability in writing. In all future transactions these purchasing terms and conditions also apply even if no further explicit reference has been made to their applicability.
- DThese purchasing terms and conditions apply only to companies, legal persons under public law and public special funds.
- All agreements made between the client and the contractor for the purpose of executing this contract must be documented in writing. Oral agreements are not binding. This also applies to changes in the orders placed.
-
Offer
The contractor must accept the order from the client within a period of one week. Upon expiration of this period, the client is entitled to revoke the order without any claims for compensation of damages arising with the contractor. - Prices
- The price listed in the order is a firm price. The price includes unloading at the client’s point of receipt. The costs for transportation, insurance and packaging are included in the price.
- The price includes packing of the goods. The packaging must be picked up by the contractor upon request of the client.
- The statutory VAT is included in the price.
- If payment for the services is agreed upon on the basis of hourrates, the contractor will be paid for the actual working hours minus break periods worked by the contractor and confirmed by the client. The payment liability is thereby limited to the objectively required number of hours of experienced employees. Travel times and expenses will be reimbursed only if this has been explicitly agreed upon. The contractor must report to the client’s representative at the beginning and end of the work. The time sheets must be submitted to the representative of the client each day for countersignature.
- Delivery period
- The delivery period specified in the order is binding, unless the contractor files a written objection with the client so that the client receives it within five working days. The delivery period is calculated from the date of the order. The contractor is obliged to inform the client in writing without delay if there are any circumstances that arise or become apparent to him which would prevent compliance with the delivery period agreed upon. At the same time the contractor must propose suitable countermeasures to counteract the consequences.
- The place of fulfilment for the delivery is the agreed point of receipt and/or the point of receipt specified in the order document. Otherwise it is the respective domicile of respective BARD Group companies concerned.
- Partial deliveries are permitted only upon the written approval of the client.
- In case of a delay in delivery, the contractor shall pay the client a lump sum compensation for damages in the amount of 1% of the delivery value per week commenced, but not more than 10%. The contractor reserves the right to prove that the damage to the client is substantially lower or non-existent. The client’s statutory rights remain unaffected by this. In particular, in case of a delay in delivery, the client is entitled to withdraw from the contract and/or to claim damages beyond the claim for a lump sum compensation for damages due to the delay.
- The contractor bears the risk of accidental loss and accidental deterioration until the handover of the goods at the place of fulfilment.
- Documentation
- All deliveries of the contractor must be accompanied by delivery notes in duplicate.
- The contractor is obliged to state the client's order number on all shipping documents, delivery notes and invoices. If the contractor neglects to do this, the client is not responsible for delays in processing.
- Payments
- Invoices shall be submitted in duplicate.
- Payments will be made within 14 days after complete delivery and receipt of the invoices with 3% discount or within 60 days. For the timeliness of the payment by the client, the date of submission of the transfer order to the bank and/or the date of the dispatch of the check is definite.
- Payments have no influence on the validity of warranty rights of the client and do not count as acknowledgment of freedom from defects or acknowledgment of conditions and/or prices.
- Except for the cases specified in Section 286, Paragraph 2 of the German Civil Code, the client is in default only after issuance of a prior written reminder. The default interest is 5 percentage points above the basic interest rate.
- Disagreements or disputes regarding the amount of the remuneration to be paid to the contractor do not entitle the client to whole or partial stoppage or withholding of his contractually agreed upon payments.
- The client has the right to offset and withhold payment within statutory limits.
-
Prohibition of assignment
The contractor is not authorized to assign his receivables, in part or entirely, to third parties without the prior consent of the client. The prohibition of assignment does not apply to advance assignments due to extended reservation of ownership. - Warranty
- The contractor guarantees the freedom from defects and completeness of the ordered goods or services and their compliance with the relevant statutory regulations and the recognized standards of technology. Unless otherwise specified by the following provisions, the warranty obligation of the contractor is based on the statutory regulations. In particular, the contractor shall deliver the goods to the client free of material and legal defects.
- As far as the client is obliged by the statutory provisions to examine the goods and to file complaints regarding defects, he shall inspect the goods within a reasonable period of time, in terms of any qualitative and quantitative deviations, and file complaints regarding any defects within a period of 5 working days calculated from the receipt of the goods or, in case of hidden defects, from the time of discovery of such.
- In case of legal complaints regarding delivered goods, the client is entitled to demand the remediation of defects or delivery of new goods from the contractor as the client chooses. The right to compensation for damages, in particular, to compensation for damages in place of performance, is explicitly reserved. If there is any actual risk due to the delay, or if there is a special time requirement, the client is entitled to undertake remediation of defects himself at the contractor's expense.
- The period of limitation for claims arising from defects begins with the delivery of the goods. It is three years from the date of delivery of the goods. If the goods delivered are used for construction in accordance with their standard use, the period of limitation is five years. Statutory provisions also apply.
- If, in case of resale of the delivered goods to third parties, a warranty claim is filed against the client due to the defectiveness of the goods, the contractor will indemnify the client against any damage resulting from this.
-
Industrial property rights
The contractor is responsible for ensuring that no rights of third parties are infringed in conjunction with his delivery or service. If a claim is filed against the client by a third party for this reason, the contractor is obliged to indemnify the client against this claim upon the client's first written request. This obligation to indemnify the client applies to all expenses which are necessarily incurred by the client or in connection with the claim asserted by a third party. The period of limitation is 10 years, dated from the execution of the contract. -
Non-disclosure
The contractor is obliged to maintain confidentiality with regard to all illustrations, drawings, calculations and other documentation, and information received from the client in connection with the fulfilment of the order. They may be disclosed to third parties only upon the explicit consent of the client. The non-disclosure obligation applies even after termination of the order. - Place of jurisdiction, applicable law
- Place of jurisdiction is the domicile of the client (for BARD Engineering GmbH: Emden, for BARD Emden Energy GmbH & Co. KG, BARD Schiffsbetriebsgesellschaft mbH & Co. Natalie KG, BARD Service GmbH and BARD Building Management GmbH: Emden; for CSC Cuxhaven Steel Construction GmbH: Cuxhaven.
- The law of the Federal Republic of Germany applies. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are excluded.
- Should one or more provisions of these purchasing terms and conditions or the order terms and conditions be or become partially or wholly invalid, the validity of the other provisions remains hereby unaffected. The contracting parties are obliged to replace the invalid provision by a provision that corresponds to the intended purpose of the provision in question.
Last revised: 21 February 2008