1.1 These terms and conditions apply exclusively for all transactions – including future ones -, in which the ITD is the Purchaser or Customer. ITD does not acknowledge any Supplier's conditions contrary to these Terms and Conditions of Purchase, unless ITD has expressly approved the validity of such contrary conditions. ITD's Terms and Conditions of Purchase remain applicable even if ITD, with knowledge of the Supplier's additional, alternative or contrary conditions, accepts the delivery or service without reservation. The Supplier's offers will be prepared free of charge. All agreements, amendments and additions connected with the contract will be binding if declared or confirmed by ITD in writing.
1.2 ITD will be bound by its order for a period of two weeks. We reserve ownership and copyright to all models, images, designs, drawings, calculations and other documentation that we may provide. The aforementioned documents may not be made accessible to any other party unless ITD has given its prior written approval. These documents must be returned following the delivery of the contractual object. They must be treated as confidential vis-à-vis third parties.
2. Delivery conditions and transfer of risk
The delivery will be made at DDP Dresden-Rossendorf (INCOTERMS 2010), carriage paid (transfer of risk) including packaging, transport insurance and other costs. If operational start-up/formal acceptance has been agreed or is legally required, the transfer of risk to ITD will take place following the successful operational start-up/acceptance. Force majeure and other circumstances unforeseeable to ITD and outside of its operational influence, will entitle ITD to postpone the receipt/acceptance of deliveries/services by a corresponding amount of time. The delivery time stated in the order is binding. In the event that the Supplier recognises that fulfillment of the delivery time, agreed deadlines or quality is jeopardized, it must promptly notify ITD in writing, and include details of the relevant reasons and duration of the delay. These notifications do not affect ITD's rights and claims in relation to delays and default. ITD is particularly entitled, following the fruitless expiry of a reasonable additional period for performance, to claim damages in lieu of performance or to rescind the agreement. If the Supplier is in default of delivery/service provision, it will be required to pay a contractual penalty equal to 0.2% of the contractual price for each day of delay. The maximum payable contractual penalty is five percent of the contractual price. Other claims for damages are not affected. The contractual penalty will be set off against the payment of such claims. ITD may claim the contractual penalty up to the time of the final payment.
3. Prices and payments
The price indicated in the order is a binding fixed price. The stated price includes packaging and transport, unless a contrary arrangement has been agreed. The price includes VAT at the applicable statutory rate. Payment entitlements only become due following the complete and fault-free delivery/service and receipt by ITD of duly issued invoice documentation. ITD will pay the price within 14 days with a three percent early payment discount, or within 30 days with no deductions. The aforementioned time periods only commence following the delivery and receipt of invoice. Payment of the price does not constitute confirmation of the contractual compliance of the delivery/service. If it has been agreed that ITD will make an advance payment on the price, the Supplier is required, at its own cost, to arrange a directly enforceable guarantee with a major German bank for a sum equivalent to the advance payment. ITD is entitled to fully exercise its statutory rights of set-off and retention.
4.1 The Supplier is required to execute the delivery/service in accordance with the generally accepted state-of-the-art, the applicable standards and provisions in a professional and qualitatively flawless manner, in accordance with the technical specifications, the relevant contractual purpose and unencumbered by any third-party rights.
4.2 Irrespective of its duties of notification and raising objections pursuant to Section 377 German Commercial Code (HGB), ITD remains fully entitled to exercise its statutory entitlements in the event of defects. ITD has the choice of demanding that the Supplier eliminate the fault or deliver a new article. The Supplier is duty bound to bear the costs required for the elimination of the defect or the delivery of substitute performance. The right to claim compensation, particularly damages in lieu of performance, is expressly reserved.
4.3 The warranty period is 36 months, commencing from the transfer of risk. If defective parts are replaced or subsequently improved, the warranty period for the substituted or subsequently improved parts shall recommence from the start. Parts for replacement will remain the property of ITD until substituted by fault-free parts; the Supplier will only acquire ownership once fault elimination has taken place. The place of performance for warranty claims is the place at which the contractual object is located at the time the fault is detected. Farther-reaching or additional statutory or contractual claims remain unaffected.
5. Execution of the delivery/service
The contractual objects must satisfy the currently applicable DIN and/or VDE standards as well as the other norms and EU standards usual within the industry, unless something to the contrary has been expressly agreed in writing. The Supplier is regard to enclose a supplier’s declaration or Certificate of Origin with the delivery.
6. Modifications to the contractual performance
The Supplier will check the materials and information provided to it, to ascertain their suitability for the purpose sought by ITD or its end customer. If, during the performance of the contract, it becomes apparent that it is necessary or expedient to allow deviations from the agreed specifications of the contractual object or materials provided, the Supplier will inform ITD promptly of this fact in writing. ITD will state in writing if and, where relevant, what changes the Supplier is to perform. Following the contractual conclusion, ITD may demand changes to the contractual performance provided this is reasonable for the Supplier to accept. If the modifications result in changes to the costs incurred by the Supplier, the contractual parties will factor the additional or lesser costs reasonably into the written change agreement made between them.
All information disclosed by the other contractual partner or which a contractual partner becomes aware of in connection with this agreement, including information such as results of contracts, discussions and negotiations, must be treated as confidential, irrespective of whether or not such information is labelled confidential. This does not apply for information already in the public domain or lawfully acquired from another party. If the Supplier receives information within the aforementioned definition, it will use this exclusively for the purpose of performing the delivery/service. Sub-suppliers must be enjoined to a corresponding duty. All confidential information remains the property of the contractual partner disclosing it, unless the contractual partners explicitly agree something to the contrary in writing. All confidential information, together with all copies made thereof, must be returned to the disclosing partner or destroyed, once the contractual partner receiving said information no longer requires it or if so demanded by the party disclosing it.
8. Liability/disclaimer, indemnity, insurance
8.1 The Supplier undertakes, at its own cost, to arrange and maintain a company and product liability insurance policy, with a minimum cover amount of 10,000,000.00 EUR for each instance of death and personal injury and damage to property. The insurance cover must extend to statutory liability for damage events occurring abroad.
8.2 In the event that the Supplier is responsible for a product defect, it is required, upon first request, to
indemnify ITD in respect of any third-party compensation claims, if the cause lies within its sphere of control or organization. The duty to indemnify extends particularly to the costs for the warding off compensation claims including the costs of the legal defense. The Supplier bears all the costs which ITD incurs in connection with product recall campaigns. In the event that ITD is entitled to damages that extend over and beyond the company and product liability insurance policy arranged and to be maintained by the Supplier, these remain unaffected by the limitation of the insured amount.
9. Retention of Title
ITD repudiates any retention of title provisions of the Supplier, if these extend over and beyond simple retentions of title. ITD retains ownership of parts provided by it or tools produced to the order of ITD.
10. Property rights and rights of use
The Supplier is liable in the event that third-party rights are violated in connection with the contractual object, unless it is able to prove that it is not responsible for the rights violation. If a third-party rights violation claim is raised against ITD, the Supplier will then be obliged, upon first demand, to indemnify ITD in respect of these claims. The Supplier's duty of indemnification relates to all costs necessarily incurred by ITD by reason of or in connection with a third-party claim. In the event that images, drawings, data sheets or other documents are created to the order of ITD, the Supplier grants ITD the exclusive right of their use and commercial exploitation, unlimited in relation to time and place, along with the industrial property rights. If ITD has no interest in the assignment of rights to an invention, or parts thereof, it will inform the Supplier promptly.
The law of the Federal Republic of Germany applies to the exclusion of United Nations Convention on Contracts for the International Sale of Goods. (CISG) Disputes will be heard before the competent court in Dresden, Germany. The place of performance is likewise Dresden, Germany.
Dresden, January 2013
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