General Terms and Conditions of Purchase
These general terms and conditions of purchase apply to all deliveries and services provided by the contractor to the Schilling Group (hereinafter referred to as "SCHILLING"). Conflicting or deviating terms and conditions of the contractor do not apply, even if they have not been expressly contradicted.
2. CONCLUSION OF CONTRACT
Delivery contracts and orders as well as their amendments and supplements must be made in writing. If the contractor does not confirm an order in writing within 5 working days of the order date, the order is deemed to have been accepted insofar as it corresponds to the supplier's essential commercial terms and conditions.
3. DELIVERY AND TRANSFER OF RISK
The delivered goods must correspond to the specifications and properties contained in the order. Any changes to the specifications, insofar as they affect the intended use, must be reported to SCHILLING in advance by the contractor.
If, from the point of view of the contractor, cooperation on the part of SCHILLING is necessary, the contractor must inform SCHILLING of this immediately.
Unless otherwise agreed, delivery must be free domicile or construction site (DAP Incoterms 2010), i.e. the costs for freight, insurance, packaging, etc. are to be borne by the contractor.
Partial deliveries are generally not permitted. Related costs are to be borne by the supplier.
The contractor bears the risk of accidental loss of goods or accidental reduction in the value of the goods until the goods are accepted by SCHILLING or an authorized recipient at the location to which the goods are to be delivered in accordance with the order.
If a start-up including documentation is required for the goods, this must be handed over to SCHILLING in writing in the respective national language at the latest upon delivery of the goods. The respective documentation must be made in 3 copies as a PDF document. The contractor is also obligated to hand over a list of spare and wear parts to SCHILLING.
4. DELIVERY DATES
Agreed delivery dates and periods are binding. The receipt of the goods at the receiving point specified by SCHILLING is decisive for compliance with the delivery date or the delivery period. If delivery is earlier than agreed, SCHILLING reserves the right to return the goods at the contractor's expense.
5. DELIVERY DISRUPTIONS AND DELAYED DELIVERY
If the contractor determines that an agreed date cannot be met, he shall inform SCHILLING thereof immediately in writing, stating the reasons and the duration of delay.
If the contractor is in default with a delivery, the contractor is obliged to compensate SCHILLING for the damage caused by the delay, provided that SCHILLING is not responsible for this delay.
In the event of imminent or actual delay, SCHILLING can demand that the contractor takes appropriate measures, chooses the fastest type of transport and bears any additional costs incurred.
6. PRICES AND INVOICING
The agreed prices are fixed prices. Subsequent price increases are excluded.
The invoice must comply with the relevant statutory provisions and in particular contain the following information:
- Order number and order date from SCHILLING
- Material number or article number from SCHILLING
- Delivery quantity and unit per item
- Unit price and the total price per item
7. PAYMENT TERMS
Payments are made within 14 days with a 3% discount or within 60 days without any deduction from the due date of the payment claim and receipt of both the proper invoice and the defect-free goods or the provision and acceptance of the service.
Payments by SCHILLING do not represent acceptance of the goods or services of the contractor as being in accordance with the contract.
If the goods or services of the contractor are defective or if they appear to be defective, SCHILLING is entitled to withhold payment until the defect has been remedied or a new delivery has been made.
8. FORCE MAJEURE
Force majeure, labour disputes, unrest, official measures and other unavoidable events release (Schilling Engineering GmbH General Terms and Conditions of Purchase - update 09/2017 2) the Schilling contracting parties from their respective performance obligations for the duration of the disruption. The contracting parties are obligated to inform the other contracting party about this immediately and to do everything possible to eliminate the disruption and/or to mitigate the effects of the disruption. SCHILLING is entitled to purchase the goods from other sources for the duration of the disruption in performance and to reduce the delivery quantity specified in the order without any obligation to the contractor if the contractor was not able to perform within a reasonable period set.
9. CLAIM FOR DEFECTS AND RECOURSE
SCHILLING will notify the contractor of any defects in the delivery as soon as they can be identified in the normal course of business. In this respect, the contractor waives the objection of delayed notification of defects, insofar as this relates to the incoming goods inspections in the event of defects that are not obvious.
Claims for defects are based on the statutory provisions.
In the event of legal defects, the contractor shall also indemnify SCHILLING against any third-party claims.
The contractor must ensure that in the event of damage occurring, a service technician will arrive at SCHILLING's request within 24 hours of the notification of the damage. This also applies after the warranty period has expired. A separate maintenance contract can be concluded.
The warranty period is 24 months after acceptance or start-up of the goods or, if they are installed in another system/equipment, after use.
For structural works such as air conditioning and ventilation technology, the warranty period is 5 years.
If SCHILLING incurs remedial costs as a result of the defective delivery, in particular transport, travel, labour, installation, expansion or material costs, the contractor shall bear these costs.
If claims are made against SCHILLING by third parties on the basis of the delivery item, the contractor is obligated to indemnify SCHILLING against such claims and the expenses and damage (including legal costs) incurred as a result, insofar as the damage is attributable to the contractor.
Upon request, the contractor will adequately support SCHILLING in clarifying and defending against third-party claims.
11. SPARE PARTS
The contractor guarantees the availability of the listed spare and wear parts for a period of 10 years. The delivery of spare and wear parts within 1 week must be guaranteed. A component may only be discontinued with the prior consent of SCHILLING.
12. EXECUTION OF WORKS
Persons who carry out work on the premises of SCHILLING or their end customers in fulfilment of the contract must observe the provisions of the respective company regulations and external company regulations.
The subcontracting of services to subcontractors is only permitted with the prior written consent of SCHILLING, provided that these services are product-specific.
14. DUTIES AND PROOF OF ORIGIN
If official documents for the intended use of the goods are required for import or export, the contractor is obligated to provide these documents to SCHILLING immediately at his own expense.
In case of import deliveries the delivered goods must be additionally accompanied with two copies of the invoice for customs purposes.
The contractor is also obligated to provide proof of origin for the goods to be delivered and to inform regarding any changes.
The contractor is liable to SCHILLING for all damage that can be attributed to non-compliance with these conditions.
15. CONFIDENTIALITY AND PROVISIONS
The contracting parties undertake to treat all commercial and technical details that are not in the public domain and that become known to them through the business relationship as business secrets and not to make them accessible to third parties.
Products that the contractor manufactures according to SCHILLING’s documents such as drawings, models or the like or according to confidential information or with tools or replicated tools from SCHILLING may not be used by the contractor itself, nor offered or delivered to third parties.
Materials, parts, containers and special packaging etc. provided by SCHILLING remain its property. The processing of materials and the assembly of parts is done for SCHILLING. In this respect, there is agreement that SCHILLING will acquire co-owners of the manufactured products in proportion to the value (Schilling Engineering GmbH General Terms and Conditions of Purchase - update 09/2017 3) of the materials provided to the value of the entire product.
The contractor is obligated to ensure adequate insurance coverage with regard to his obligations. Upon request, he must provide SCHILLING with evidence of the insurance coverage.
17. TERMINATION OF THE CONTRACT
Each contracting party can terminate permanent contracts without a notice period for an important reason. For SCHILLING, an important reason exists in particular if:
- the contractor ceases to operate
- a significant deterioration in the contractor's financial circumstances occurs or threatens to occur and this endangers the fulfilment of a delivery obligation towards SCHILLING
- the contractor becomes insolvent or overindebted
- the contractor suspends his payments or - an application is made to open insolvency proceedings over that assets of the contractor or a comparable procedure to settle debts against the contractor's assets.
Placed orders are not affected by this.
18. PLACE OF PERFORMANCE AND JURISDICTION
The place of performance is the place to which the goods are to be delivered in accordance with the order or where the service is to be provided.
The exclusive place of jurisdiction for all disputes arising from or in connection with this contractual relationship is Wutöschingen. SCHILLING is also entitled to sue the contractor at the court at its registered office.
The contractor is only entitled to rights of retention if his counterclaims have been legally established, are undisputed or have been recognized by SCHILLING.
SCHILLING is also entitled to offset counterclaims from other contractual relationships with the contractor. Incidentally, offsetting is only permitted with legally established, undisputed counterclaims or counterclaims recognized by SCHILLING. SCHILLING is entitled to assign claims from this contractual relationship to end customers. Otherwise, the assignment of claims from this contractual relationship is excluded.
The law of the Federal Republic of Germany applies exclusively to the exclusion of the conflict of laws and the UN Sales Convention (CISG).
Should any provision of these terms and conditions be or become ineffective, this shall not affect the effectiveness of the remaining provisions. The contracting parties will replace the ineffective provision with a provision achieving nearly the same economic success as the replaced one.