Purchase of supplies and services
from IP Industriepark Schwedt GmbH & Co. KG
valid from: 10/02/2014
1. General
1.1 The General Terms and Conditions form an integral part of the order/contract or the agreements (all hereinafter referred to as the contract) and shall apply exclusively unless the contracting parties have expressly agreed otherwise in writing. Conflicting and deviating terms and conditions of the Contractor are not recognised. They shall not become part of the contract, even if they are enclosed as declarations by the Contractor and Industriepark Schwedt GmbH & Co. KG (hereinafter referred to as IP) does not expressly object to their validity or, being aware of such conditions, accepts services/deliveries without reservation. Counter-confirmations by the Contractor with reference to its terms and conditions of business or sales are hereby rejected.
1.2 The General Terms and Conditions shall also apply to all future transactions with the Contractor, even if they are not expressly agreed upon again. They shall not apply to orders or contract awards in the context of or as a result of public invitations to tender in accordance with the provisions of the contract regulation governing supplies and services, construction work or freelance services.
2. Written form
Orders, order amendments and other agreements are only binding if they have been issued or concluded by IP in writing. Agreements made by telephone or orally with IP employees or with third parties authorised by IP require written confirmation in order to be valid. Exceptions to the requirement of the written form must also be made in writing. Letters from IP which include the statement “automatically generated” fulfil the requirement of being in writing, even without a manual signature.
3. Tender / Conclusion of contract
3.1 Tenders are binding and free of charge for IP. The Contractor must expressly point out any deviations from the inquiry text.
3.2 All illustrations, drawings, calculations and other documents, as well as items made available to the Contractor by IP are to be used by the Contractor exclusively for production on the basis of the contract. They shall remain the property of IP and must be returned to IP without request after the contract has been fulfilled. The Contractor does not have a right of retention. The obligation to return also extends to copies. IP reserves the intellectual property rights to all documents handed over to the Contractor.
4. Scope and content of the obligation to perform
4.1 The scope of the contractor's obligation to perform shall be determined by the specifications/description of services valid at the time of conclusion of the contract or, if these are missing, by the information in the contractor's offers and brochures.
4.2 Unless other (higher-quality) technical standards have been agreed upon, the supplies/services must comply with the generally accepted rules of technology, the latest laws and regulations of the Federal Republic of Germany, the State of Brandenburg and their competent authorities and professional associations as well as those of the European Union.
4.3 The standards/guidelines specified by IP are always valid in their latest version. Works standards/guidelines to which IP refers in the inquiry must be requested by the Contractor in good time, if they have not already been made available.
4.4 The Contractor shall guarantee that it selects only brand-new and best-suited materials with good maintainability and low wear for the purpose of fulfilling the contract. The Contractor shall guarantee the quality of its supplies and services, which means that consistent adherence to the specified performance data can also be expected in continuous operation.
4.5 The Contractor must immediately notify IP of any concerns about the envisaged type of implementation or about the performance of other companies.
4.6 The Contractor shall ensure that, in order to fulfil its obligations to provide services, it only uses staff who have both a residence permit valid in the Federal Republic of Germany and a valid work permit from the relevant employment agency and are duly registered for social security.
4.7 The Contractor shall obligate its staff and its subcontractors who provide services for IP on the IP site, or on behalf of IP on the site of the Industrial Park or on the adjacent refinery site of PCK Raffinerie GmbH (PCK), to comply with the applicable safety and accident prevention regulations of the relevant employers' liability insurance associations as well as the safety regulations issued by IP for the Industrial Park and the safety regulations issued by PCK for the refinery site for the duration and execution of work.
4.8 The Contractor shall only be permitted to use subcontractors for contract processing after prior written consent from IP.
4.9 If inspections are planned for the delivery item, the Contractor shall bear the material costs and its staff inspection costs. The Contractor is obliged to notify IP of the readiness for inspection at least 7 days in advance and to agree an inspection date with it. If repeated or further inspections are required as a result of identified defects, the Contractor shall bear all material and staff costs for this. The Contractor shall bear the material and staff costs for the material documentation of the primary materials.
4.10 IP has the right to examine at any time with the Contractor the material procured for the execution of the contract and its processing. The factory acceptances/inspections taking place in this sense do not have the legal effect of an acceptance or partial acceptance and do not affect the Contractor's obligation to assume liability for defects.
5. Delivery dates / Delayed delivery
5.1 The agreed delivery dates / deadlines or performance dates / execution deadlines are binding. For the timeliness of delivery and assembly or installation, it is essential that the goods arrive at the delivery address specified by IP, and for the timeliness of deliveries together with installation or assembly and services, it is essential that they are received.
5.2 If a delivery or service is noticeably delayed, the Contractor is obliged to notify IP without delay, stating the reasons and the expected duration of the delay. If the Contractor fails to give this notification, it cannot complain to IP about the hindrance.
5.3 In the event that no deadline or date for delivery or performance has been agreed, the delivery/performance shall be effected immediately after conclusion of the contract.
6. Contractual penalty
6.1 If the Contractor exceeds agreed dates or deadlines for delivery or completion or if the delivery/service is not ready for acceptance on the agreed dates/deadlines for reasons for which the Contractor is responsible, IP shall be entitled to retain or demand an amount of 0.2% per working day but a total of no more than 5% of the final net amount of the final invoice (including all supplements and additions) as a contractual penalty, without the need for notice of default or proof of damage.
6.2 The aforementioned contractual penalties shall not apply to interim deadlines or dates.
6.3 If deliveries or services for part of a production plant, the installation or construction of which require or cause the shutdown of this plant or a significant limitation of its production, are to be provided during or for a period during which this production plant has been or will be stopped at short notice for maintenance or repair purposes, a contractual penalty of 0.3% of the net order value, but a total of no more than 5% of the net order value, shall be paid for each working day of the delay in delivery/service.
6.4 These and all other agreed contractual penalties may be claimed by IP in addition to performance. An express reservation of the contractual penalty pursuant to § 348 of the BGB (German Civil Code) shall not be required for acceptance. Rather, contractual penalties may be claimed by IP up to the final payment and by offsetting against the final invoice.
6.5 IP shall also be entitled to demand compensation for further damages caused by delay. The contractual penalty shall be offset against IP’s claim for damages.
7. Prices/Invoicing
7.1 All agreed prices are net prices and binding.
7.2 The prices are understood to include proper packaging as well as the delivery at the expense and risk of the Contractor carriage-free to the place of use, otherwise carriage-free to the place of receipt, the IP in Schwedt/Oder. The remuneration paid at the above prices includes the technical documentation in accordance with the works standard, inspection certificates, test reports and other documents required by IP.
7.3 All deliveries/services are to be duly invoiced, stating the amount of VAT. Invoices must be declared either as a partial or final invoice and must contain the order number. Acceptance reports and/or acknowledgements of receipt shall be attached. Any additional or reduced services must be specified separately in the invoice.
Invoices that differ from this will be returned by IP unprocessed. The Contractor shall be responsible for all consequences arising from non-compliance with the above-mentioned obligations, unless it can prove that it is not responsible for them.
7.4 Unless otherwise agreed, invoices shall be paid within 30 days net or within 14 days with a 2% discount. The payment period shall begin with the complete performance of the service on which the payment is based, and at the earliest from receipt of the invoice by IP.
8. Shipping
The contractor shall take care of shipping and bear the transport risk. Transport insurance shall be taken out by the Contractor at its own expense.
9. Insurance
9.1 Unless otherwise agreed, the Contractor shall take out, maintain and, at IP’s request, provide evidence of a liability insurance policy with a minimum sum of EUR 500,000 per loss event and for the duration of the contract for damage caused by it, its staff or its agents by the services or goods supplied.
9.2 In the event of planning, monitoring or expert consultancy, the Contractor shall take out, maintain and, upon request, give evidence of a professional liability insurance policy for the duration of the contract with a minimum cover amount of EUR 500,000 per loss event including pure financial losses.
9.3 The Contractor’s liability is not limited by the respective amount of insurance cover.
9.4 In the case of joint ventures, insurance cover must be provided for all members.
10. Transfer of risk, acceptance
10.1 The risk shall only pass to IP after the deliveries have been handed over to IP. In the case of deliveries/services on the basis of a work contract, § 644 of the BGB (German Civil Code) shall apply.
10.2 Acceptance of services by IP shall take place within a period of 14 working days after the Contractor has given notification of the completion in writing. The prerequisite for acceptance is also the availability of all necessary test certificates, expert opinions, official decisions and the final documentation.
10.3 Acceptance shall be confirmed by the Contractor and IP in a joint acceptance report.
10.4 Acceptance by use is excluded, as is the fictitious acceptance as stipulated in § 640 para. 1 clause 3 of the BGB and acceptance by means of a certificate of completion pursuant to § 641a of the BGB.
11. Notice of defects
Unless otherwise agreed in quality assurance agreements between IP and the Contractor, IP may make quality and quantity deviations from deliveries that are recognisable within the framework of a proper inspection in accordance with § 377 of the HGB (German Commercial Code) (obvious defects), while respecting their undiminished claims for liability for defects until the expiry of 12 working days after receipt of the delivery by IP. The period for giving notice of hidden defects is 12 working days from the discovery of the defect.
12. Claims for defects
12.1 IP shall be entitled to the statutory claims for defects in full. IP’s claims for defects shall also extend to the deliveries/services of subcontractors of the Contractor.
12.2 Unless otherwise agreed in the contract, the statutory periods for the limitation of claims by IP due to defects in the delivery/service shall apply.
12.3 Upon receipt of the written notice of defects, the term of these limitation periods shall be suspended for the duration of the examination of the indicated defects by the Contractor, but at least for a period of 3 months from receipt of the notice of defect. The term of these limitation periods shall also be suspended during the period of subsequent performance by the Contractor. If the Contractor investigates the indicated defects in agreement with IP or if the Contractor rectifies them, the suspension shall only end upon receipt of the Contractor's written notification to IP of the result of the inspection or of the rectification of the defect or of the rejection of further measures of subsequent performance.
12.4 In urgent cases of danger to operational safety or to prevent damage that would be disproportionately higher than the cost of rectifying the defect, IP shall be entitled, without prior notification of the defects or setting of a deadline for subsequent performance, to rectify the defects itself or by third parties and to demand compensation from the Contractor for the expense, to withdraw from the contract or to reduce the remuneration appropriately if, in light of the circumstances, timely subsequent performance by the Contractor is not possible or cannot be expected in order to prevent damage. In the aforementioned cases, IP shall immediately issue the notification of defects.
IP shall consult the Contractor as far as possible before commissioning third parties at the expense of the Contractor.
12.5 The Contractor must comply with the operational requirements of IP during fulfilment of the subsequent performance.
13. Notice of termination
13.1 IP shall be entitled to terminate the contract at any time up to the completion of the performance by the Contractor in accordance with § 649 of the BGB. In this case, IP shall only reimburse the Contractor for the services rendered up to the notice of termination that have been used or accepted by IP, but at the most up to the amount of the agreed total remuneration.
13.2 The right to give notice of termination for good cause remains unaffected. In particular, IP shall be entitled to terminate the contract in whole or in part with immediate effect at any time if insolvency proceedings have been filed by the Contractor regarding its assets, or if, in the event of a request for insolvency by a third party, the application is not withdrawn within a period of 14 days, or if existing or future legislation does not or will not permit the purchase or use of the delivered goods or the use of the services or works, or is only permitted to a limited extent, or if the Contractor has either culpably breached significant obligations under the contract and thus jeopardised the success of the contract or has breached other contractual obligations in a culpable manner and continues the breach despite a warning from IP.
13.3 In the event of termination for the above-mentioned reasons, IP may either demand from the Contractor the return of the monies already paid simultaneously for the return of already completed deliveries/services or, at the option of IP, retain the services/deliveries already delivered by the Contractor for reasonable payment. In all other respects, IP shall be entitled to carry out the outstanding deliveries and services itself or through third parties, at the expense of the Contractor. Further claims by IP shall remain unaffected.
14. Liability
14.1 The Contractor shall be liable in accordance with the statutory provisions for all damage caused to IP or third parties by the Contractor's employees or third parties engaged by it. The Contractor shall waive proof of exoneration for its vicarious agents within the framework of § 831 of the BGB.
14.2 The Contractor shall indemnify IP against claims arising from producer liability and under the Product Liability Act, insofar as the Contractor or its suppliers have caused product defects that trigger liability.
14.3 The Contractor shall be liable for ensuring that patents, licences or intellectual property rights of third parties are not infringed by the delivery and use of the delivery items. The Contractor shall bear the costs of any licence fees.
15. Reservation of proprietary rights
15.1 IP does not recognise the reservation of property rights of the Contractor.
15.2 The Contractor shall only deliver goods which are the sole property of the Contractor and which are not encumbered with third-party rights. If a supplier or other third party asserts rights in this regard, IP shall be notified by the Contractor without delay and shall be released from any claims of the third party.
16. Prohibition of assignment
The assignment, encumbrances or pledging of claims against IP, in particular of compensation claims, is excluded without the written consent of IP. Exceptions require the written consent of IP in order to be effective.
17. Confidentiality / Data processing
17.1 The Contractor undertakes, for a period of 5 years, to treat with confidence any information or knowledge obtained within the scope of the contract about IP and its business partners, not to disclose it or otherwise bring it to the attention of third parties and not to use it for its own business purposes. The Contractor shall ensure that the duty of confidentiality is also observed by its employees, vicarious agents and subcontractors and shall be liable in the event of a breach in accordance with the statutory provisions. The duty of confidentiality does not apply to facts and information that are generally known or were known to the Contractor prior to the contract or that were otherwise legally known by third parties.
17.2 Personal data that has come to the attention of the Contractor must be treated with confidence and processed and used exclusively within the scope of the order issued and in accordance with the instructions of IP.
17.3 The Contractor is hereby informed in accordance with § 33 of the BDSG (Federal Data Protection Act) that its data is stored within the framework of the legal regulations. The processing/utilisation of the data shall take place in compliance with the BDSG.
18. Place of performance / Place of jurisdiction
18.1 The place of performance for all deliveries and services is, in principle, the IP Industriepark Schwedt GmbH & Co. KG, Passower Chaussee 111, D-16303 Schwedt/Oder, Germany.
18.2 If the Contractor is a registered trader, the place of jurisdiction is Schwedt/Oder. However, IP shall be entitled to bring a legal action against the Contractor at its place of residence or business.
18.3 If the Contractor has its registered office abroad, the law of the Federal Republic of Germany shall apply; the terms of the UN Sales Convention shall not apply. Customary commercial clauses shall be interpreted on the basis of the current Incoterms.