Version 9 / 2016; Epro GmbH 1
General Standard Conditions of Purchase
Epro GmbH
1. General - Scope
(i) Our General Conditions of Purchase have exclusive validity; we do not
accept conditions set by the Supplier that conflict with or deviate from or
supplement our conditions of purchase, unless we have agreed to their
validity expressly in writing. Our General Conditions of Purchase are still
valid if we unreservedly accept the Supplier's delivery knowing that the
Supplier's conditions conflict with, deviate from or supplement our conditions
of purchase. (ii) All agreements that are made between ourselves and the
Supplier for the purpose of performing this contract are to be laid down in
writing in this contract. (iii) Our General Conditions of Purchase only apply to
enterprises, legal entities under public law or public-law special funds. (iv)
Our General Conditions of Purchase also apply to all future business with the
Supplier. (v) “Emerson” means any of Buyer’s affiliates for whose benefit the
Goods and / or work are being purchased. (vi) “Contract” means the written
agreement (including these Terms and Conditions and the order form) made
between Buyer and Supplier for the Supply of Goods and/or the provision of
Services. (vii) “Contract Price” means the price payable by the Buyer to the
Supplier for the Goods and/or Services. (viii) “Buyer” means the company
named at the head of this page. (ix) “Supplier” means the person, firm,
company or corporation to whom the order is given. (x) “Services” means the
services described in Buyer’s order form. The Buyer purchases the Goods on
behalf of Emerson.
2. Tender - Tender documents
(i) The Supplier is obligated to accept our order within a time limit of 2 weeks.
The contract is concluded by acceptance of the Supplier. (ii) We reserve
copyright and ownership rights on diagrams, drawings, calculations and other
documents; these may not be made accessible to third parties without our
express consent. They are to be used solely for manufacture on the basis of
our order; after the order has been fulfilled they are to be returned to us
unrequested. They are to be kept secret from third parties; in this respect
Clause 13 Section (iv) applies in addition.
3. Prices - Terms of payment
(i) The price shown in the order is binding. However, the proviso under
Clause 6 applies. In the absence of a written agreement to the contrary, the
price includes delivery free of charge to the Buyer's address, including
packaging. The delivery shall be made FCA. The return of the packaging
requires special agreement. (ii) The statutory value-added tax is included in
the price. (iii) The invoice is to be drawn up in triplicate. We can only process
invoices if, in accordance with the specifications in our order, these carry the
order number shown there. The Supplier is responsible for all consequences
arising from non-compliance with this obligation, in so far as he is not able to
demonstrate that he is not responsible for these consequences. (iv) After
receipt of the goods and / or Services provided and the invoice pursuant to
the above conditions, the payment period shall commence on the first day of
the following calendar month, with the payment period amounting to 2
calendar months and five days. The payment shall be effected on the 5th day
of the aforementioned period. (v) We are entitled to rights of setting off and
retention to the extent provided for by the law.
4. Delivery and Title
(i) The ownership of delivery items shall be transferred directly from the
Supplier to the addressee of the delivery, as far as nothing else has been
expressly agreed. Should the Buyer himself be the addressee of the delivery,
then he functions solely as an agent for the owner. The ownership of delivery
items passes over to the owner either upon delivery, upon provision of the
delivery as per order or upon payment of instalments on the order price by
the Buyer or the addressee of the delivery (the deciding factor is the process
that takes place first). If the ownership of the delivery items has passed over
to the owner stipulated in the contract before delivery, then the Supplier is to
identify the delivery items clearly as third-party property. (ii) The delivery is to
be made free of charge to the address indicated in the order or to the
address indicated by the Buyer during the order process, provided nothing
else is agreed in writing. The Supplier is obligated to state our purchase
order number accurately on all shipping documents and delivery notes;
should he omit to do this, then we cannot be held responsible for any delays
in processing the order which are due to such omission. (iii) For international
shipments, Supplier shall make the Goods available for export fully cleared
from customs and shall arrange for delivery of the Goods to the consolidating
hub or to Buyer’s specified carrier’s container yard at the port of shipment.
Supplier shall obtain all necessary export licenses and authorisations, and
shall assume responsibility for all fees and costs associated with export
customs formalities and with getting the Goods ready for loading, including
but not limited to customs clearance, container yard / container freight
station, receiving, terminal handling and documentation fees. Supplier shall
be responsible for the costs of checking operations, packaging and
appropriate marking which are necessary for the purpose of delivering the
Goods. Supplier shall provide, at Supplier’s cost, the delivery order and / or
usual transport document required for Buyer to take delivery of Goods.
Supplier shall give Buyer sufficient notice of the dispatch of the Goods and
any other notice necessary to take delivery of the Goods. Buyer shall pay for
the costs of pre-shipment inspection except when such inspections are
required by the country of export. Buyer shall obtain all necessary import
licences and authorisations and shall assume responsibility for all fees and
costs associated with import customs formalities, including but not limited to
import clearance, duties and administrative costs. (iv) With the exception of
fees and costs associated with (I) export customs formalities, (II) getting
Goods ready for loading, and (III) checking operations, packaging and
appropriate marking of the Goods, Buyer is responsible for all costs for
carriage / transportation from Supplier’s facility to final destination. At
Buyer’s option and request, Supplier will prepay the carriage / transportation
costs from Supplier’s facility to port of export and add such costs to the
Buyer’s invoice. Otherwise, all carriage / transportation costs from Supplier’s
facility to final destination are freight collect. Notwithstanding the foregoing,
Supplier is responsible for any costs, fees, expenses or penalties incurred as
a result of Supplier’s failure to hire a Buyer approved carrier without Buyer’s
prior written consent or to otherwise follow Buyer’s instructions.
5. Delivery period
(i) The delivery period given in the order is binding. (ii) The Supplier is
obligated to inform us immediately in writing if circumstances arise or
become evident that could result in the stipulated delivery deadline not being
kept. (iii) If the delivery period is not met, we will be fully entitled to the legal
rights and claims.
6. Changes of the order
We may demand subsequent changes to the agreed scope of delivery or
performance, whether in terms of quality or quantity, if special operational
reasons call for such changes and if such changes are customary in the
trade or can reasonably be expected of the Supplier. Should such changes
on the part of the Buyer affect the basis of the price for a service scheduled
in the contract, then a new price is to be agreed, taking into consideration the
increase or reduction in costs. This agreement should be concluded before
performance.
7. Non-assignment
The Supplier is not entitled to assign his accounts receivable from the Buyer
without the latter's written consent. In the event of a valid assignment, the
Buyer can, however, tender performance to the Supplier in accordance with
§ 354 a p.2 HGB [German Commercial Code], with discharging effect.
8. Liability for defects
(i) We will examine the goods within a reasonable period of time after
delivery for any variations in quality, quantity and identity to such extent as
this is appropriate in the ordinary course of business. Notices of defect shall
be considered lodged in due time if made within a period of 5 working days,
calculated from receipt of the goods or, in the case of hidden defects, from
the time they are discovered. Dispatch of the notice in due time shall be
sufficient for us to safeguard our rights. (ii) If the goods are defective, we
shall remain fully entitled to the statutory rights and claims to rectification of
defects or a replacement [Nacherfüllung], to rescission of contract or a
reduction in price, as well as to damages or compensation for futile
expenditure. If the Supplier fails to meet our justified demand for rectification
of defects or a replacement within a reasonable period of time, we shall be
entitled in cases of urgency to remedy the defect ourselves, or have third
parties remedy the defect at the Supplier's cost. (iii) The Supplier guarantees
that its deliveries and performances will not infringe any patents, utility
models, trademarks, copyrights or other industrial property rights of third
parties in Germany or any other country where the Supplier is aware that the
deliveries and performances are to be used. The Supplier shall fully
indemnify us from and against any claims, including the legal costs to defend
such claims, made by third parties on the ground of an infringement of any
such rights. Where this can be reasonably expected of us, we will
immediately inform the Supplier of any claims made by third parties and shall
not, without the Supplier's approval, enter into any agreements, above all
settlements, or declare an acknowledgement. (iv) Except where the law
demands a longer limitation period, rights and claims based on defects shall
become time-barred on expiry of 24 months after delivery or, where
necessary, after acceptance. Notwithstanding the aforesaid, rights and
claims based on defects of title shall not become time-barred before expiry of
10 years after delivery or, where necessary, after acceptance.
9. Special duty of care and information
(i) If the Buyer has informed the Supplier about the purpose of the deliveries
or services or if this purpose is evident to the Supplier without express
indication, then the Supplier is obligated to inform the Buyer immediately if
the former's deliveries or services are not suitable to fulfil this purpose. (ii)
The Supplier has to ensure that the deliveries and services comply with the
environmental protection, accident-prevention and other industrial safety
regulations and the technical safety rules and meet all legal requirements
applicable in the Federal Republic of Germany. With every delivery the
Version 9 / 2016; Epro GmbH 2
Supplier has to refer the Buyer to any special treatment and disposal
requirements that are not generally well-known.
10. Spare parts and readiness to deliver
(i) The Supplier is obligated to provide the Buyer with spare parts for the
period of ordinary technical use, or at least 10 years after the last delivery, on
reasonable terms. (ii) If the Supplier ceases supplying spare parts, then the
Buyer is to be given the opportunity to make one final order.
11. Provision of security and liability insurance
(i) In order to cover all contractual warranty claims the Buyer can demand
reasonable security from the Supplier until the warranty period expires.
Provided nothing else was agreed, in paying the final invoice the Buyer can
retain 5 % of the order value as interest-bearing security. The Supplier can
avert this safeguard retention by providing a reasonable warranty bond. The
safeguard retention is to be paid into a separate bank account. (ii) The Buyer
can demand that the Supplier takes out liability insurance with adequate
cover for the risk of damage.
12. Product liability - Indemnity - Liability insurance protection
(i) So far as the Supplier is responsible for any product damage, he is
obligated upon first demand to release us from third parties' claims for
damages, in so far as the cause lies within his power and organisational area
and he assumes the rights and duties as to third parties. (ii) As part of his
liability for cases of damage in the sense of Section (i) the Supplier is also
obligated, in accordance with §§ 683, 670 BGB [German Civil Code] and
§§ 830, 840, 426 BGB, to reimburse any expenses that result in or out of
connection with any recall action that we carry out. As far as is possible and
reasonable we shall inform the Supplier about the content and scope of the
recall measures to be carried out and give him opportunity to state his view.
All other legal claims remain unaffected. (iii) The Supplier undertakes to
maintain extended product liability insurance with blanket coverage of EURO
10 million per personal damage / damage to property / pure financial loss; if
we are entitled to further compensation claims, these remain unaffected.
13. Reservation of ownership - Provision of materials - Tools - Secrecy
(i) As far as we provide the Supplier with parts Emerson retains ownership of
these. The Supplier shall carry out processing or restructuring for Emerson. If
conditional commodity in the possessive of Emerson is processed with other
objects that do not belong to Emerson, then Emerson acquires co-ownership
of the new item in the ratio of the value of the item (purchase price plus
value-added tax) to that of the other processed objects at the time of
processing. (ii) If the item provided by Emerson is inseparably mixed with
other objects that do not belong to Emerson, then Emerson acquires coownership of the new item in the ratio of the value of the conditional item
(purchase price plus value-added tax) to that of the other mixed objects at
the time of mixing. If the mixing is carried out in such a way that the supplier's
item is to be regarded as the main item, then it is to be considered agreed
that the Supplier shall transfer co-ownership to Emerson proportionately. The
Supplier shall hold the sole ownership or the co-ownership for Emerson. (iii)
We retain ownership of the tools. The Supplier is obligated to use the tools
solely for the production of the goods ordered by us. The Supplier is
obligated at his own cost to insure our tools for their reinstatement value
against theft and damage by fire and water. At the same time the Supplier
now assigns to us all compensation claims from this insurance and we
hereby accept the assignment. The Supplier is obligated at his own cost to
carry out any necessary servicing and inspection work and all maintenance
and repair work on our tools in good time. He has to report any faults to us
immediately. If he culpably omits to do this, then claims for damages remain
unaffected. (iv) The Supplier is obligated to keep all diagrams, drawings,
calculations and other documents and information received strictly secret.
They may only be disclosed to third parties with our express consent. The
obligation to maintain secrecy also applies after the contract has been
processed. This obligation ceases to have effect if and in so far as the
production information contained in the diagrams, drawings, calculations and
other documents provided has become generally well-known.
14. Inspections and accelerating the process
At any point during the usual business times the Buyer and his
representatives (the group of buyers) and the relevant public bodies are
entitled to inspect or test the goods or Services in the Supplier's plant or that
of his subcontractor or his legal successor and to accelerate the
implementation of the order by giving suitable advice. Inspections in the
Supplier's plant and instructions to the Supplier's staff are only allowed with
the latter's consent. The Supplier may only refuse this consent with good
reason. The Supplier shall inform the Buyer in an appropriate way about
tests that he and his subcontractors carry out on the work and that the group
of buyers may participate in. The Supplier shall send the Buyer any test
certificates that the latter requests. Such inspections and tests and / or the
Buyer's presence at the tests shall not release the Supplier from his
contractual duties. Such inspections and tests and / or the Buyer's presence
at such tests do not constitute implied acceptance of the goods. The Supplier
shall immediately inform the Buyer about any contact with the Buyer's
customers, Emerson, the end consumer and / or with official bodies in
connection with this order. The Supplier shall not follow their instructions until
the Buyer has confirmed them in writing.
15. The Buyer's right to termination at will
The Buyer is authorised to terminate the order at any time, even without
compelling reason. In this case the Buyer shall owe the Supplier the agreed
remuneration less the expenses saved and less the advantages that the
Supplier achieves through using the ordered services or work in another way
(cf. § 649 BGB [German Civil Code]).
16. Taking possession of ordered goods
Should the Buyer's claim to performance by the Supplier be seriously
jeopardised, the Buyer is, with the Supplier's consent, entitled to enter the
latter's premises, take possession of the goods ordered and transport them
away. Only for a compelling reason may the Supplier refuse to give the
necessary consent.
17. Software
On the basis of the Supplier's express approval, the Buyer shall be granted a
non-exclusive, worldwide licence, unlimited in time, to use all of the software
supplied on the basis of this order. The Buyer shall be allowed to grant
sublicences, particularly to his end customers. The Buyer shall not pay more
than is agreed in the order for the use of the software on the scale described
above. The Buyer (Emerson) is entitled to copy the software for back-up and
archiving purposes, to subject it to reversed engineering, to decompile it or to
use and copy it in any other way within the framework of the applicable laws.
18. Observance of laws, ordinances etc.
18.1 Supplier, its sub-contractors and assignees and their personnel shall at
all times comply with all applicable laws, regulations, codes and standards
including but not limited to all health, safety and environmental laws and
regulations such as (i) applicable product safety legislation (e.g. EU
machinery directive 2006/42/EC, electromagnetic compatibility directive
2014/30/EU, low voltage directive 2014/35/EU, pressure equipment directive
2014/68/EU); (ii) regulations regarding the provision of information about
substances hazardous to health and (iii) all regulations imposed by, and
relating to work (including security requirements) at the premises of
Emerson, its customer and end user (as applicable). Supplier shall oblige its
sub-contractors and assignees and their personnel to the same extent.
18.2 Supplier represents and warrants that at the date of formation of the
Contract, all Goods are eligible for shipment to the destination, end use and
end user as advised by Buyer in accordance with all applicable export control
regulations including applicable U.S. regulations and orders, U.N. Security
Council resolutions, regulations in force in Supplier’s country and / or the
country from which the Goods will be exported. Supplier further agrees that:
(i) The Export Compliance Declaration completed by Supplier before
formation of the Contract forms part of the Contract; (ii) Supplier will advise
Buyer as soon as possible if any of the Goods cease to be eligible for
shipment to the above destination; (iii) In the event that further items are
added to the Contract, Supplier will evaluate their eligibility for shipment and
either provide a new Export Compliance Declaration form or advise Buyer
that they are not eligible for shipment.
18.3 Supplier is and remains solely responsible for the full compliance of
delivered Goods or parts of Goods with any applicable rules and regulations
(“Legislations”) on restriction of hazardous substances (“RoHS”) such as
Directive 2011/65/EU as of 8 June 2011, as applicable, (“EU RoHS”), the
Administrative Measures for the Restriction of the Use of Hazardous
Substances in Electrical and Electronic Products as of 1 July 2016 (“China
RoHS2”), etc. and all further releases as well as all national or local
regulations issued in execution of the aforesaid RoHS Legislations.
Therefore all delivered Goods or parts of Goods must be suitable and fit for
RoHS compliant production and sale. Supplier will complete and sign Buyer’s
standard Declaration of RoHS Compliance at the part number level, use
appropriate systems and processes to ensure the accuracy of these
determinations and maintain appropriate records to allow traceability of all
products or parts of products. Insofar as products or parts of products are not
supplied in accordance with the aforementioned requirements, Buyer
reserves the right to cancel blanket or single orders at Supplier’s expense.
Supplier undertakes to duly and immediately inform Buyer of any changes
affecting RoHS Compliance. In case of proven violations of national or
international RoHS Compliance regulations by the Supplier, Supplier
undertakes to exempt and hold Buyer harmless from any claim, liability, loss,
damage, judgment and external responsibility, irrespective their legal ground,
and to bear any and all harm, loss or damage arising to Buyer’s
disadvantage in the event of infringement.
18.4 To the extent required by applicable law, Supplier shall be responsible
for the collection, treatment, recovery or disposal of (i) the Goods or any part
thereof when they are deemed by law to be 'waste' and (ii) any items for
which the Goods or any part thereof are replacements. If Supplier is required
by applicable law, including waste electrical and electronic equipment
legislation, European Directive 2012/19/EU (WEEE) and related legislation in
EU Member States, to dispose of 'waste' Goods or any part thereof, Supplier
shall dispose of such Goods entirely at its own cost (including all handling
and transportation costs).
18.5 Supplier shall comply with all applicable anti-corruption, anti-money
laundering and anti-terrorism laws, including but not limited to those of the
United States, the Supplier’s country, the Buyer’s country and the country
which is the end-destination of the Goods and / or in which work is to be
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