General Terms and Conditions of Purchase of the FLOHE Group (01/2019)

1. General information

1.1

The General Terms and Conditions of Purchase of the FLOHE Group (FLOHE GCP) apply to all contracts in which the company Flohe GmbH & Co. KG or the companies FLOHE Berg GmbH, FLOHE Cable Technologies GmbH, Flohe Hochstromtechnik GmbH and FLOHE Steel GmbH act as the Purchaser of goods or services and the other Contracting Party acts as the Seller.

With respect to the company FLOHE Fouilleret SAS (France), the FLOHE GCP apply to all contracts in which FLOHE Fouilleret SAS acts as the Purchaser and the other Contracting Party acts as the Seller and has its registered office outside the French Republic.

With respect to the company FLOHE LINKWEL Power Pvt. Ltd. (India) , the FLOHE GCP shall apply to all contracts in which FLOHE LINKWEL Power Pvt. Ltd. acts as the Purchaser and the other Contracting Party acts as the Seller and has its registered office outside the Republic of India.

1.2

The FLOHE GCP apply exclusively to legal transactions with entrepreneurs within the meaning of Section 14 of the German Civil Code (Bundesgesetzbuch, BGB). We do not accept any terms and conditions of the Seller that deviate from the FLOHE GCP unless we have expressly agreed to their validity in writing.

1.3

This version of the FLOHE GCP is valid from 01/01/2019. It replaces all previous General Terms and Conditions of Purchase.

1.4

Verbal agreements only become binding on our written confirmation.

1.5

The preparation of offers is free of charge and non-binding for us.

1.6

INCOTERMS 2010 are authoritative for interpreting trade clauses.

2. Order acceptance

Orders from us must be confirmed by the Seller in writing within 2 weeks of receipt, unless otherwise stipulated in an individual contract.

3. Prices and freight charges

3.1

The price stated in the order is binding and is valid for the term of the contract stated therein. It includes all services and ancillary services required for the complete manufacture of the service to be rendered, unless these are remunerated separately in accordance with the agreement. This particularly includes costs for tools, freight, customs duties, packaging material and transport to the place of use specified by us as well as taxes and other charges.

3.2

With respect to DAP pricing [specified destination], the price includes freight and packing costs. With respect to carriage forward delivery, we shall only assume the most favourable freight costs unless we have specified a special type of shipment.

3.3

If the order does not contain a price quotation or if a pricing agreement is not reached for other reasons, a reasonable price shall be deemed to have been agreed. The standard market price at the time of the order shall take precedence when determining how reasonable the price is. If the Parties are unable to agree on a reasonable price, how reasonable the price is shall be determined by an independent expert appointed by the President of the Dortmund Chamber of Industry and Commerce in accordance with Section 317 of the German Civil Code (Bundesgesetzbuch, BGB). The costs of the expert shall be borne by the Parties pro rata in proportion to the difference between the price determined by the expert and the price deemed reasonable by the respective Party

4. Payment

4.1

Subject to any other individual contractual provisions or more favourable provisions for us in the Seller’s conditions of sale, payments shall be due within 14 days less a 3% discount or within 60 days net after proper invoicing in accordance with clause 5 below, ‘Invoicing’ and receipt of invoice by us.

By way of derogation from this, if the invoice is received before complete delivery and complete provision of any other services owed, such as assembly services, the payment term shall not begin until the day following complete delivery or provision of services.

4.2

In the case of partial deliveries that have not been agreed, the payment term for the entire delivery shall start on the day following the last partial delivery. If earlier deliveries are accepted, the due date shall be based on the agreed delivery date.

4.3

In the event of defective delivery or performance, we shall be entitled to withhold payment until proper fulfilment or until the defect is remedied. We shall also be entitled to withhold payment if our rights against the Seller are not based on the same legal relationship or are not yet due.

4.4

The timeliness of the payment shall be determined by performance which as an example might include issuing a transfer order to the bank or sending a cheque by post.

4.5

Payments which exceed the agreed price shall be made explicitly subject to them being recalled at any time, unless otherwise agreed in writing. None of the Parties may invoke any actual practice that deviates from this.

4.6

The Seller shall not be entitled to assign its receivables or have them collected by third parties without prior written consent, which may not be unreasonably withheld.

5. Invoicing

Invoices are to be addressed to the FLOHE Group company referred to in the order as the Purchaser. Invoices must be issued immediately and separately from the delivery of the goods, indicating the characteristics and numbers of each item listed in the order.

Invoices must comply with legal regulations, with particular reference to tax regulations. Invoices that do not meet these requirements do not result in the invoiced receivables becoming due. Copies of invoices must be clearly marked as duplicates.

Individual invoices must be issued for deliveries to different locations or different companies in the FLOHE Group. The dimensions, weight and quantities determined by us shall be used for the calculation. The burden of proof for deviations lies with the Seller.

6. Delivery, delivery periods and delay in delivery

6.1

The delivery must correspond to the execution, scope and division of the order or our delivery division and be executed on time. With respect to quantities, dimensions and weight, the values determined by us during the receiving inspection are decisive. EN/DIN standards apply to compliance with the specified dimensions.

6.2

We shall not be obliged to accept partial or excess deliveries that have not been agreed.

6.3

Receipt of the goods by us at the agreed location determines compliance with the delivery date or the delivery period. We must be notified of any expected delays in delivery in writing immediately. Here, it must be stated how the consequences of delays in delivery can be averted.

6.4

If the agreed delivery dates are not adhered to, the Seller shall compensate us for the damage caused by the delay within the scope of legal provisions. In the event of repeated failure to meet a deadline, we shall be entitled to withdraw from the contract following advance warning.

6.5

The Seller can only invoke the absence of necessary documents to be provided by us if it has not received the documents even following a written reminder.

6.6

All shipping documents, operating instructions and other certificates (e.g. test certificates) that relate to the Seller’s performance of the delivery must be sent to us on the shipment date. If the delivery contains goods that are to be classified as dangerous goods, the Seller must inform us immediately.

6.7

With respect to deliveries that are made directly to third parties, copies of the consignment note acknowledged by the recipient must be handed over to us together with the goods invoice.

6.8

With respect to delivery on call or temporary storage at our request, proper storage and insurance shall be ensured.

6.9

The Seller shall bear the risk of accidental loss and accidental deterioration of the goods, even for ‘carriage paid’ and ‘free to destination’ deliveries, until the goods are handed over at the place of destination.

6.10

Unless otherwise agreed in writing, packaging costs shall be borne by the Seller. If we bear the costs of packaging in individual cases, this shall be charged to us on a reasonable basis. Take-back obligations are based on the Packaging Act (Verpackungsgesetz) of 05/07/2017 in its currently valid version.

The Seller shall ensure that its goods are packaged in such a way that they can be used by us in line with the agreed specification and quality. The respectively applicable national and international dangerous goods regulations must be complied with.

7. Retention of title

7.1

Any expanded or extended retention of title by the Seller is excluded. Ownership of the goods shall pass to us on payment. Any forms of expanding the simple retention of title, in particular a current account reservation, shall not apply.

7.2

Due to the retention of title, the Seller can only demand that goods are returned if it has effectively withdrawn from the contract.

8. Ban on transferring orders to third parties

The Seller may not transfer the execution of the contract, either in whole or in part, to third parties without prior written consent. Even if consent has been given, it remains fully responsible for the fulfilment of the contract. The commissioning of sub-suppliers by the Seller may also only be carried out with the Seller’s prior written consent.

9. Code of conduct for contractors, supply chain security

9.1

The Seller is obliged to comply with the laws of the applicable legal system(s). In particular, it will not take part in any form of bribery, violation of the fundamental rights of its employees or child labour either actively or passively, directly or indirectly. It will also assume responsibility for the health and safety of its employees in the workplace, comply with environmental protection laws and promote and demand compliance with this code of conduct from its suppliers to the greatest extent possible.

9.2

The Seller shall take all necessary organisational instructions and measures, in particular in the areas of property protection, business partner security, personnel security and information security, packaging and transport, to ensure security in the supply chain in accordance with the requirements of corresponding internationally recognised initiatives based on the WCO SAFE Framework of Standards (e.g. AEO, C-TPAT). It shall protect deliveries and services to the Purchaser or to third parties specified by the customer against unauthorised access and manipulation. For such deliveries and services, it shall exclusively employ reliable personnel and shall oblige any subcontractors to also take appropriate measures.

9.3

If the Seller culpably breaches the obligations arising from clause 9, we shall be entitled to withdraw from the contract or to terminate the contract without prejudice to further claims. If the elimination of the breach of duty is possible, this right may only be exercised after the fruitless expiry of a reasonable period for eliminating the breach of duty.

10. Provisions on export control and foreign trade data

10.1

The Seller shall meet all of the requirements of the applicable national and international customs and foreign trade law (‘foreign trade law’). The Seller must provide us with written notification of all information and data which we require in order to comply with foreign trade law when exporting, importing and re-exporting goods no later than two weeks after placing the order and immediately in the event of any changes that have been made. Such information and data particularly includes

  • all applicable export list numbers including the export
  • control classification number in accordance with the U.S. Commerce Control List (ECCN);
  • the statistical commodity code in accordance with the current commodity classification of foreign trade statistics and the HS (Harmonized System) code; and
  • the country of origin (non-preferential origin) and, if required by us, supplier declarations with respect to preferential origin (for European suppliers) or preference certificates (for non-European suppliers).

10.2

In addition, the Seller is obliged to must inform us of further foreign trade data concerning the ordered goods and their components in writing on request. All changes to the aforementioned data must be shared with us in writing without undue delay (prior to delivery of the goods concerned).

10.3

If the Seller breaches its duties in clause 10.1, it shall bear all expenses and damages incurred by us as a result, unless the Seller is not responsible for the breach of duty.

11. Declarations of origin

If the Seller makes declarations regarding the origin of the goods sold, the following shall apply:

11.1

the Seller is obliged to allow customs authorities to verify proof of origin and to provide the necessary information as well as any confirmations required.

11.2

The Seller is obliged to compensate for any damage caused by the fact that the declared origin is not recognised by the competent authority as a result of inaccurate certification or a lack of opportunity to verify this, unless it is not responsible for these consequences.

12. Liability for defects and statute of limitations

12.1

The Seller shall procure the goods and services free from material defects and defects of title. In particular, it shall be responsible to us for ensuring that its deliveries and services comply with the recognised rules of technology and the contractually agreed properties and standards.

12.2

The Seller is required to carry out a quality control during production and an outgoing goods inspection and must therefore comprehensively check the quality of the parts to be delivered. At our request, the Seller shall provide us with written information concerning the quality control steps taken during production and the outgoing goods inspection it has carried out and what the findings of these measures were.

We check goods for identity and completeness as well as for externally visible damage, particularly transport damage, on receipt and by reference to the order. We shall report such defects within a reasonable period of time. We reserve the right to carry out a more extensive incoming goods inspection. In addition, we shall report defects as soon as they are discovered in the ordinary course of business. In this regard, the Seller waives the objection of delayed notification of defects.

12.3

The Seller assumes the legal warranty for defects that occur within 36 months of the delivery of the goods, unless other mandatory legal periods apply. Section 434 (1) of the BGB shall also apply to contracts for work and services

The Seller must reimburse us for any expenses incurred as a result of remedying the defect in accordance with Section 439 (2) of the BGB and, in the event of culpability, shall indemnify us in advance against claims by third parties based on the costs of remedying the defect and against claims for damages asserted by third parties as a result of defective delivery by the Seller.

The costs of remedying the defect shall particularly include, but are not limited to, the costs of dismantling the defective goods and reassembling them, as well as any necessary transport to a place other than the place of performance. The Seller shall indemnify us against claims by third parties based on defective delivery by the Seller to the extent that the Seller is liable to us itself.

12.4

In order to avert an imminent risk of considerable damage, we may also remedy the defect ourselves, have it remedied or procure a replacement at the Seller’s expense without issuing a reminder or setting a deadline if it is no longer possible to notify the Seller of the defect and the imminent damage and to give it the opportunity to provide supplementary performance due to the particular urgency of the matter.

12.5

If warranty claims are asserted against us in the event of resale to third parties, the Seller shall indemnify us against any resulting damage in the event of defective delivery, insofar as the Seller is responsible for warranty.

12.6

In cases in which the contract is subject to the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG), we shall be entitled to demand replacement delivery even in the event of the breach of a nonessential contractual obligation. In addition, the repair of defects may also be demanded pursuant to Article 46 (3) of the CISG after expiry of a reasonable period following the notification of the defect.

12.7

The Seller hereby assigns to us as conditional payment all claims to which it is entitled against its sub-suppliers by reason of and in connection with the delivery of defective goods or services. It shall provide us with all documents required to assert such claims

12.8

In addition, legal regulations apply with respect to warranties.

13. Liability/product liability

Regardless of the legal grounds, any claims for damages can only be asserted against us in the event of intent or gross negligence of a breach of duty.

This does not apply to the breach of an essential contractual obligation, claims from product liability and culpable damage to life, limb and health. In the event of a breach of an essential contractual obligation, our liability is limited to the damage typically foreseeable on conclusion of the contract.

In the event that claims are made against us by a customer or other third party due to product liability, the Seller is obliged to indemnify us against these claims on written request, insofar as the damage was caused by a defect in the deliveries/services provided by the Seller or by a breach of duty for which the Seller is responsible. In cases of fault-based liability, this shall only apply if the Seller is at fault. In addition, the Seller is obliged to reimburse us for any expenses in accordance with Sections 683 and 670 of the BGB which arise from or in connection with any recalls.

14. Property rights/third-party property rights

The Seller shall indemnify us against third-party claims based on the infringement of property rights and against costs incurred by us as a result of this, insofar as the Seller or its vicarious agents have culpably caused the infringement. This includes internal and external costs of legal defence. The Parties shall notify each other immediately if claims are asserted against them as a result of property right infringement.

15. Insurances

The Seller is obliged to take out business liability insurance and extended product liability insurance at its own expense, which covers third-party claims for damages from defective delivery and performance. This includes damage to property, personal injury and financial losses, e.g. further processing, dismantling, installation, testing and sorting costs. The Seller shall maintain the aforementioned insurance policies at all times during the term of the contract and ensure that any damage caused at least in part during the term of the contract remains insured even after termination of the contract.

The sum insured for the insurance policies must be at least EUR 5 million per claim per insurance year. On request, the Seller shall provide us with written confirmation from the insurer that the insurance policies have been taken out and that they are in place.

The aforementioned provisions shall not affect our claims against the Seller either in terms of reason or amount.

16. Non-disclosure/advertising

The Seller is obliged to treat all commercial or technical information in any form that is not publicly available and becomes known to it as a result of the business relationship with us as business secrets. The Seller may only refer to its business relationship with us in an advertising capacity if we have explicitly agreed to this in writing.

17. Tools, moulds and patterns

Drawings and other documents, devices, models, tools and other means of production provided to the Seller shall remain our property. The aforementioned items may not be scrapped nor made accessible to third parties, e.g. for production purposes, without our written consent. They may not be used for purposes other than those contractually agreed, e.g. delivery to third parties. We reserve all rights to certificates or products manufactured according to our specifications and to processes developed by us.

18. Applicable law, place of performance, place of jurisdiction/severability clause

18.1

German law applies. The provisions of the Vienna UN Convention on Contracts for the International Sale of Goods of 11/04/1980 shall not apply.

18.2

Incoterms 2010 shall apply in addition to and subordinate to individual agreements and the FLOHE GCP.

18.3

The place of performance for delivery is the place of the registered office of the ordering company in the FLOHE Group. The place of performance for all of the Seller’s receivables that arise from delivery relationships is our registered office.

18.4

The place of jurisdiction is Dortmund. We are also entitled to bring forward action at the Purchaser’s place of business.

18.5

Should one or more of the aforementioned provisions be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that extensively fulfils the intended economic purpose.