General Conditions of Purchase

General Terms and Conditions of purchase of ASC Armored Specialty Cars GmbH,
version: October 2018

§1 Application

1. These General Terms and Conditions shall exclusively apply to all purchase of goods by us or any services delivered to us, especially for any purchase of goods or spare parts by us.
2. These Conditions also apply to all future transactions and in all cases in which contact is taken up with a seller for business purposes, as for example the entry into contractual negotiations or in the preliminary stage before conclusion of a contract, even if these Conditions are not expressly agreed again or if no express reference is made to them again.
3. We hereby object to any counter confirmation, counter offer or other reference by the seller to its general terms and conditions, any dissenting terms and conditions of the seller shall only apply if we have confirmed the same in writing (f.e. letter, fax or e-mail).

§2 Conclusion of contract

1. We place our orders, order changes and delivery schedules in writing, by e-mail or by fax. The content of verbal and telephone agreements is only binding if it has been confirmed by us in writing. Delivery schedules become binding if the seller does not object to them within seven working days of receipt.
2. Order documents, especially drawings or sketches, remain our property. The seller is obliged to state the company abbreviation given in our written order or any other written document transmitted by us. In any case, seller is obliged to indicate our order number and, if contained the name of the contact person in our company.
3. A reference to business relations with us in advertising materials or reference documents or the use of trademarks and marks to which we are entitled requires our prior written consent.
4. Offers or cost estimates transmitted to us by the seller are binding. They have to be made and transmitted by the seller free of charge.

§3  Subject of performance

1. The seller is obliged to deliver or execute the delivery / service ordered by us in accordance with the contractual agreements. Deviations are only permitted with our express consent in written form (letter, fax or e-mail). The seller warrants that the delivery / service will be carried out using suitable materials and that it will comply with the recognized rules of technology, the statutory and official safety regulations and the environmental protection regulations, which are applicable by law or have already been adopted into applicable law with a transitional period.
2. If we order parts which the seller produces according to a drawing, sketch or model specified by us, he shall, upon our request, submit a test report with the delivery of the goods, from which the product characteristics such as dimensions, etc. can be extracted.
3. If the seller makes changes in the nature of the composition of the processed material or in the constructive execution of its products or services delivered to us as compared to similar deliveries or services previously provided to us, seller is obligated to notify us of this changes without delay in advance, Changes always require our written (letter, fax or e-mail) approval.

§4 models, tools, drawings, sketches, logo

1. If we provide the seller with models, samples, production equipment, tools, measuring and test equipment, drawings, company standard sheets, print templates or other materials to be provided as part of a delivery / service, these remain our property. They are kept by the seller with the care of a prudent businessman free of charge and separately from other documents or goods in his possession, marked as our property and used by the seller only for the fulfillment of our delivery / service. Models and tools made available to the seller must be insured by him against disasters such as fire, water, theft and loss at his expense.
2. The seller assigns to us all production-related manufacturing equipment, tools and models manufactured by him at our expense for producing the goods. We hereby accept the transfer. If models and/or tools remain with the seller, the handover will be replaced by lending the production facilities and tools to the seller for the execution of the order.
3. If we make a contribution to the costs of production with regard to production facilities, tools or models, then the seller grants us co-ownership in proportion to our participation in the overall production costs of the production facilities, tools or models. We accept the transfer hereby. The seller is entitled to use the production facilities, tools or models charged with our co-ownership in favor of other customers only after we have given our written consent.
4. If we provide the seller with models, samples, production equipment, tools, measuring and test equipment, drawings, company standard sheets, print templates or other materials to be provided as part of a delivery / service, these remain our property. They are kept by the seller with the care of a prudent businessman free of charge and separately from other documents or goods in his possession, marked as our property and used by the seller only for the fulfillment of our delivery / service. Models and tools made available to the seller must be insured by him against disasters such as fire, water, theft and loss at his expense.
5. The seller assigns to us all production-related manufacturing equipment, tools and models manufactured by him at our expense for producing the goods. We hereby accept the transfer. If models and/or tools remain with the seller, the handover will be replaced by lending the production facilities and tools to the seller for the execution of the order.
6. If we make a contribution to the costs of production with regard to production facilities, tools or models, then the seller grants us co-ownership in proportion to our participation in the overall production costs of the production facilities, tools or models. We accept the transfer hereby. The seller is entitled to use the production facilities, tools or models charged with our co-ownership in favor of other customers only after we have given our written consent.

§5 Terms of payment

1. Payment deadlines shall run from the specified delivery or service date, at the earliest from the day of receipt of the goods or day of full service provision, acceptance thereof – if agreed or provided for by law – and proper invoicing. If the issuing of further certificates or material testing certificates is agreed, the payment deadlines do not start before these documents are received. These documents form an integral part of the delivery and must be presented by seller no later than five days after receipt of the goods or the invoice.
2. The seller grants 3% discount for payments within 14 days after receipt of the goods, otherwise payment will be made within 30 days net, if not agreed upon otherwise. If defects in the delivery occur or have been discovered within this period, we have a right of retention and the claim of the seller is not due until the final removal of the defect or until the defect free replacement delivery. In such case, we are also entitled to withhold the payment pro rata until proper fulfillment.
3. We are entitled to make payments by check or discountable bills whose dis-cost and taxes are borne by the seller.
4. The settlement of an invoice does not constitute a waiver of notice of defects. In case of faulty delivery or delivery of defect goods, we are entitled to withhold the payment pro rata until proper fulfillment.
5. We reserve all rights to offset or retain payment provided by applicable law.

§6 prices, shipping, packaging, delivery

1. The agreed prices are basically fixed prices.
2. If no prices are specified in the order, the list prices of the seller apply with the usual commercial deductions. If the seller reduces the prices of the ordered products before delivery, the reduced prices apply.
3. Goods are always shipped carriage paid within Germany: CIP (Incoterms 2010) or delivered from abroad, insured and duty paid: DDP (Incoterms 2010) to our specified delivery address. Packaging costs are borne by the seller.

§7 delivery and service time

1. All delivery dates stated in the order or otherwise agreed upon are binding. Delivery is made timely only if the goods reach the agreed place of delivery at the agreed time.
2. The seller is obligated to inform us immediately in written form if circumstances occur or become apparent which indicate that the agreed delivery or service time can not be met. This information does not release the seller from its liability for delay.
3. The seller can only invoke the absence of necessary documents or information to be provided by us or materials to be provided by us as a hindrance to a timely service or delivery if he demands the handover of the documents, information and materials in writing of us and if such demand – as long as we owe the delivery of such documents, information or materials – is received by us within a reasonable time.
4. Premature deliveries have no influence on the agreed payment due date. Partial deliveries are only accepted after express agreement. The remaining remainder must be listed in the delivery documents. If partial deliveries have not been agreed, the agreed payment due date will be calculated at the earliest from the day of complete delivery.
5. The seller is in default of delivery even without a reminder as soon as the respective bindingly agreed delivery date is exceeded.
6. If the seller exceeds the contractually agreed delivery deadline, he shall pay a contractual penalty of 0.15% of the delivery price (excluding VAT) for each workday of culpable non-delivery, but no more than 5% of the delivery price. The contractual penalty may be claimed until the final payment.
7. If the delay in delivery is based on a fault of the seller, the latter shall be liable without limitation for all damage caused by the delayed delivery; the contractual penalty is credited to the delay damage.
8. The acceptance of a delivery does not mean a waiver of claims for damages or penalty due to delay in delivery.

§8 Retention of title

1. A processing, mixing or connection (further processing) of provided objects by the seller is carried out for us. The same applies to further processing of the delivered goods by us, so that we are considered to be the manufacturer and acquire ownership of the product at the latest with further processing in accordance with statutory provisions.
2. The transfer of the goods to us must be unconditionally and without consideration for the payment of the price. If, however, in individual cases we accept an offer made by the seller for the transfer of the purchase price, the retention of title of the seller shall cease at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we remain authorized to resell the goods prior to payment of the purchase price, subject to advance assignment of the resulting claim (e.g. validity of the simple retention of title extended to resale). In any case, this excludes all other forms of retention of title, in particular extended, retention of title and extended retention of title to further processing.

 

§9  Liability, Warranty

1. We accept delivered goods subject to inspection for freedom from defects. We comply with our obligation to inspect and notify according to applicable law (Art. 38 CISG) regarding defects of the delivery / service, if we send a notice of defects within 30 days from receipt of the delivery. Our obligation to inspect is limited to defects that are revealed during our incoming goods inspection of the visible appearance of the goods including the delivery documents (eg transport damage, visible damages, incorrect or short delivery). Insofar as it is not possible to inspect the delivery within this period in the normal course of business, we will notify the seller of defects immediately after the examination and detection of the defect. The seller insofar waives the objection of late notice of defects. Notwithstanding our obligation to inspect, our complaint (notification of defects) shall in any case be deemed to be prompt and timely if it is sent within 14 days of discovery or, in the case of visible defects, 30 days after delivery.
2. The seller warrants that the goods delivered are fit for use as provided by the contractual obligations and meets, at the time of delivery, the specifications set forth in the order or order confirmation.
3. We reserve all rights and remedies for defects or other non-conformity provided by applicable law. We are especially entitled, upon our election, to claim remedy of defects, re-delivery of conforming goods, and damages.
4. In case of imminent danger we are entitled, after giving notice to the seller, to remedy the defects at the seller’s cost.
5. The seller warrants that the goods are free from rights of third parties and that delivery of the goods does not violate any rights of third parties. The seller shall indemnify us, upon first demand, from any claims of third parties in this regard.
6. The seller is responsible for ensuring that no third party rights are violated in connection with his delivery / service.
7. If we face claims by a third party for alleged infringement of intellectual or other property rights, the seller is obliged to indemnify us from these claims. The foregoing obligation of the seller applies to all expenses necessarily incurred as a result of or in connection with the claim of a third party.
8. If the seller already owns industrial property rights to the ordered deliveries or services or to processes for their manufacture, these are to be notified to us upon request, stating the relevant registration number. We receive a non-exclusive right of use.
9. Warranty claims shall be time-barred 36 months after the passage of risk/delivery to us.

§10 CE Declaration of Conformity / Manufacturer’s Declaration / Certificates

Delivery items must comply with all the regulations, guidelines and standards pertaining to the respective goods and must be supplied with the prescribed certificates and confirmations. If a manufacturer’s declaration or a declaration of conformity (CE) is required for the goods, the seller must prepare them and make them available on request at its own expense.

§11 Miscellaneous: jurisdiction, governing law and severability clause 

1. Unless otherwise agreed between the parties, the courts for Reutlingen shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with any purchase agreement and any sales agreement between the parties. As an exception hereto we are also entitled to sue seller at its place of business.
2. The language of the contractual relationship is English. If the parties make use of another language the English version of any contractual document shall prevail.
3. In the event that one or more provisions of this General Terms and Conditions of Purchase or any sales agreement between the parties or any other stipulation between the parties should be or become invalid or unenforceable, contain a loophole or that a period stipulated violates legally intended periods the validity of the remaining provisions and agreements shall not be affected thereby.
4. All contractual and other legal relations between the parties including any contractual relation resulting of sales agreements based are governed by German law including the UN Convention on Contracts for the International Sale of Goods (CISG) dated 11th April 1980.