General Purchase Conditions of DACHSER GmbH & Co. KG for all ...

General Purchase Conditions
of
DACHSER GmbH & Co. KG
for all Supplies and Services
Clause 1
Scope of Application
1.1 These General Purchase Conditions shall apply to every legal
relationship between DACHSER GmbH & Co. KG or its associated
subsidiaries (hereinafter referred to as "DACHSER") and the supplier /
service provider. They apply to all current orders for goods or services
which have been placed by DACHSER and which have not yet been
completely processed by both sides as well as to all future orders for
goods and services placed by DACHSER.
1.2 Only these General Purchase Conditions shall apply. Any deviating or
additional sales, supply and payment conditions of the supplier /
service provider shall not be binding on DACHSER even if DACHSER
does not oppose them or the supplier / service provider states that he
only wishes to deliver upon his conditions. These General Conditions
of Purchase shall also apply if the contract with the supplier / service
provider is implemented without reservation despite knowledge of the
conditions which conflict with, are additional to or deviate from these
General Purchase Conditions.
1.3 These Conditions shall be deemed to have been acknowledged when
the order is accepted, however at the latest when the supplies are
sent to DACHSER.
Clause 2
The Coming into Existence of the Agreement
2.1 The supplier / service provider must submit his offer free of charge.
2.2 The supplier / service provider's binding offer must comply exactly with
the request as regards type, quantity, condition and implementation.
The supplier / service provider must expressly point out any deviation.
DACHSER shall only be bound by deviations if DACHSER has
expressly consented thereto in writing. The acceptance of supplies,
services or payments does not constitute consent.
2.3 DACHSER can place orders in writing, verbally, by telephone or
electronically.
2.4 Orders placed by DACHSER must in any event be confirmed in writing
by the supplier / service provider without undue delay.
2.5 So long as DACHSER has not received any written confirmation of the
order, the order can be revoked or amended free of charge at any time
and without stating any reason.
2.6 If DACHSER amends the goods or quantity ordered or the agreed
service after the contract has been concluded, the supplier / service
provider shall be under a duty to accept such contract amendment
unless the contract amendment is unreasonable for him.
Clause 3
Delivery and Performance Times
3.1 The delivery and performance deadlines stipulated in the contract
must be complied with exactly. If the supplier's / service provider's
offer does not contain any particulars regarding deadlines for delivery
and performance, the delivery dates and deadlines stipulated in the
order shall be binding.
3.2 In the event of any non-compliance DACHSER must be informed
without undue delay and simultaneously notified of the delivery date.
3.3 The supplier / service provider shall be solely liable for any damage
incurred as a consequence of the failure to comply with the delivery
time as well as for any increased handling costs incurred for the same
reason. This shall be without prejudice to DACHSER's other rights.
3.4 Any delay by subcontractors shall fall within the supplier's / service
provider's sphere of risk.
3.5 If the supplier / service provider is late with performance (in Verzug)
DACHSER shall be entitled - without setting an extended deadline, at
its option and without prejudice to any other rights to damages - to
demand a contract penalty in the amount of 0.5 % of the order value
per completed week, however a maximum of 5 % of the order value
and/or to demand delivery and/or to rescind the contract.
3.6 An event of force majeure suffered by the supplier / service provider or
any operational disruptions suffered by the supplier's / service
provider's supplier as a result of riot, strike, lock-out, which temporarily
prevent the supplier / service provider or the supplier's / service
provider's supplier from delivering the goods to be delivered at the
agreed time or within the agreed deadline, or from rendering the
services - for no fault of their own - the agreed dates and deadlines
shall be postponed by the duration of the interference with the delivery
or performance due to said circumstances. If such an interference
causes performance to be postponed by more than 2 months,
DACHSER can rescind the contract for the respective goods to be
delivered or for the respective services.
Clause 4
Delivery and Acceptance
4.1 If the contract is a contract for work and services (Werkvertrag) an
acceptance procedure, which cannot be substituted by deemed
acceptance, shall in each case take place. Partial works and services
cannot be accepted, unless otherwise expressly agreed.
4.2 In the case of deliveries without installation and assembly the risk shall
pass upon receipt by the receiving point stipulated by DACHSER and,
in the case of deliveries with installation and assembly, upon their
acceptance.
Clause 5
Packaging
5.1 Dispatch notes must be submitted to our headquarters in Kempten
immediately when the consignment is dispatched and stating the order
date and the order number. DACHSER has to charge the supplier /
service provider any additional costs, which DACHSER incurs
because of any failure to comply with its dispatch rules. The
consignment must be dispatched insured as service traffic via the
DACHSER branch stipulated by DACHSER. If DACHSER does not
stipulate a branch, the dispatch shall be at the supplier's / service
provider's discretion.
5.2 The consignment must be packed such that the safe arrival of the
goods delivered is assured. Every consignment must clearly indicate
the sender and recipient so as to prevent any confusion from the
outset. As regards the type of transport and the transit time, the
supplier / service provider must choose the most sensible solution.
The transport risk and transport costs shall in any event be borne by
the supplier / service provider.
Clause 6
Prices, Payment Terms
6.1 The prices stipulated in the order confirmation are fixed net prices
inclusive of transport costs, customs, payment of duties and
packaging costs. If no prices were agreed at the time the contract was
concluded, the ordinary prices shall be deemed to have been agreed.
Invoices must always state the net price plus the value added tax in
the respective statutory amount.
6.2 Unless other conditions have been agreed, payments shall be effected
within 15 week days after delivery and receipt of the invoice less 3%
cash discount, or within 30 days after delivery and receipt of the
invoice net of costs.
6.3 In the event of any delay in payment the supplier / service provider
shall be free to charge interest at a rate of 1 % p.a. above the
respective discount rate of the European Central Bank. There shall be
no other rights on the grounds of delay.
6.4 In the case of contracts for the performance of a continuing obligation
a price increase shall be permitted only after 4 years after
commencement of the contract unless a separate agreement on the
type and extent of the price increase was reached in advance.
6.5 With respect to any claims which have matured, DACHSER shall have
a full right of set-off and right of retention against any claims of the
supplier / service provider, even against claims which have not been
finally and absolutely established or claims which are disputed. A
cash discount shall be permitted, even in the case of a set-off or if a
right of retention is asserted. The payment of invoices does not
constitute any acknowledgement of a legal obligation and does not
constitute any waiver of any rights under a warranty or guarantee due
to defects in the contractual performance or other rights.
Clause 7
Warranty and Liability
7.1 Unless otherwise provided in these Purchase Conditions, the supplier
/ service provider shall be liable in accordance with the statutory
provisions.
7.2 As regards the duty of a merchant to examine goods and to report any
defects, it shall be deemed to be timely if DACHSER examines the
goods received by it within 3 weeks and reports any obvious defects
within said period. If DACHSER cannot examine incoming goods or
cannot do so within this period because of the special nature of its
business, particularly if the packaging is not usually removed or not
removed immediately, the supplier / service provider waives
compliance with the statutory duty to examine goods and to report
defects pursuant to Section 377 of the German Commercial Code
(HGB).
7.3 Payment does not constitute any acknowledgement of freedom from
defects.
7.4 The supplier / service provider warrants that the goods supplied by
him and/or the services performed are not defective and that there are
no conflicting third party rights at the time when the agreed right of use
passes to DACHSER. The supplier / service provider guarantees that
the programme functions of the software selected by DACHSER meet
its requirements and interoperate in the selection made by it.
7.5 If the goods delivered or the services are defective the supplier /
service provider shall have the right, at its option, to remedy the defect
or to supply the goods/services free from defects. If an attempt to
remedy the defect fails, also in the form of a replacement delivery,
DACHSER can, at its option, reduce the price, rescind the contract
and/or demand damages. This shall also apply if the supplier / service
provider is not willing to remedy the defect or to provide a replacement
delivery or such remedy or replacement is delayed beyond a
reasonable period for reasons, for which the supplier / service provider
is responsible.
7.6 Unless longer warranty periods are stipulated by statute, the warranty
period shall be at least 24 months as of acceptance of the goods
delivered or the taking of delivery or the commissioning of the goods.
7.7 If the supplier / service provider is not the manufacturer of the goods
delivered and if the manufacturer offers an extended guarantee
compared with that which has been contractually agreed, the supplier /
service provider shall inform DACHSER thereof and shall, at its
request, hand DACHSER the guarantee documents.
7.8 The supplier / service provider shall also be liable for business
interruptions, lost profit as well as for loss of information or data.
7.9 The supplier / service provider has, to the extent possible, taken out
an insurance policy with sufficient maximum insurance cover to cover
DACHSER General Purchase Condiions (22.07.2003) 1

the claims arising out of the contractual relationship and shall, upon
DACHSER's request, provide proof of insurance.
7.10 In the case of proven defects in title (Rechtsmängel) the supplier /
service provider shall render subsequent performance by procuring a
legally sound possibility for DACHSER to use the goods supplied or,
at its option, the exchanged goods or the altered goods of equivalent
value. In the event of any third party claims to the software the
supplier / service provider shall indemnify DACHSER against all third
party claims.
Clause 8
Rights of Use under Software Licences
8.1 The supplier / service provider grants DACHSER the non-assignable,
exclusive right to the software acquired, which right is unlimited in
time, and authorises DACHSER to use the software both in the
Federal Republic of Germany and abroad, by fully or partially loading,
displaying, running or storing it without restriction on one or several
devices and on the network. For the purposes of these General
Conditions of Business "use" means, in addition to running and
installing the software, every act of copying, either in whole or in part,
in particular the making of back-up copies and every transfer of the
software, whether in whole or in part, to a machine or a data carrier in
order to carry out the commands and instructions contained therein or
to store the same.
8.2 More extensive use of the software, in particular by modifications,
additions or reproductions and recompilation of the software into other
code forms (decompilation) is authorised.
8.3 Title to the software shall remain with the copyright author.
Clause 9
Reservation of Title
9.1 Absolute title to the goods delivered shall pass to DACHSER upon
delivery to the receiving point stipulated by DACHSER.
9.2 Any agreement of a reservation of title is hereby expressly refuted.
Clause 10
The Scope of Software Maintenance Services
10.1 If a maintenance agreement is concluded the supplier / service
provider shall repair programme faults, in respect of which warranty
rights no longer exist; the supplier / service provider shall do so by, at
its option, providing DACHSER with individual corrections, changes to
the settings or a level of software revision on a data carrier within a
reasonable period to time. It shall constitute a fault if the software does
not comply with the functions stated in its performance specification,
delivers wrong results, uncontrollably breaks off its programme run or
in some other way does not behave as it should function, so that the
use of the software is prevented or impaired.
10.2 The repair of a fault includes analysing the fault, isolating the cause of
the fault and - if it is not possible to repair the fault at a reasonable
cost or because of time - bypassing the fault. The faults can also be
repaired with an improved programme version (= update).
10.3 Furthermore, when concluding the maintenance agreement, the
supplier / service provider undertakes to provide improved programme
versions (= update) and new programme levels with enhanced
performance and functions, if appropriate including the possibility of
using new technology (= upgrade), at fixed intervals but at least twice
per annum.
10.4 The fee for the maintenance to be provided also covers the following:
10.4.1 The provision of specialised personnel and a 24 hour hotline service in
the respective language of the country where the DACHSER office is.
10.4.2 A central fault complaint desk with appropriate routing and call-back
monitoring within 24 hours / 7 days in the respective language of the
country where the DACHSER office is.
10.4.3 Support in analysing faults.
10.4.4 Advice on repairing and avoiding faults within 24 hours / 7 days.
10.4.5 Information about any software updates which exist.
Clause 11
Term of Agreement
11.1 If in the case of contract for the performance of a continuing obligation
no term has been agreed, the contract shall be deemed to have been
agreed for an indefinite term but can be terminated by either party at
any time with 3 months' notice ending with the end of a month.
11.2 Both DACHSER and the supplier / service provider shall have a right
to terminate without notice only in the event of financial deterioration
(e.g. cessation of payments, a petition for the institution of bankruptcy
proceedings) of one of the contract parties or in the event of a
breaches of contract by the other contract party, which the latter fails
to cure within a reasonable period of time despite a written notice, and
which are so grave that the partner affected thereby cannot be
expected to continue to be bound by the agreement.
11.3 Every notice of termination is required to be in writing.
Clause 12
Data Protection
Neither contract party is permitted to store personal data of the
respective other contract party within the framework of the business
relationship by means of electronic processing. The supplier / service
provider undertakes to treat all information which DACHSER makes
available to the supplier / service provider or its vicarious agents as
strictly confidential - irrespective of whether such information is
conveyed in writing, orally, by inspection or in some other manner -
and not to use such information for its own purposes or the purposes
of a third party.
Each contract party shall, through suitable and tested organisational
measures, ensure that any kind of confidential information also cannot
be made available to unauthorised persons accidentally. If it is
expedient or necessary to engage other persons / consultants
("Authorised Third Parties"), the supplier / service provider must bind
such Authorised Third Parties to the terms of this agreement to the
extent that such persons are not already bound by a duty of
confidentiality by their professional code of ethics.
Clause 13
Assignment
The supplier / service provider may assign his legal duties arising out
of the contract concluded upon these Conditions to a third party only
with DACHSER's written consent. The same shall apply to the
assignment of his rights under said contract.
Clause 14
Requirement of Writing
Any deviations from the provisions contained in these General
Purchase Conditions, other amendments or additions to the offer or
DACHSER's order require DACHSER's written confirmation in order to
be effective. This also applies to any cancellation of this requirement
of written form.
Clause 15
Savings Clause, Jurisdiction
15.1 If the agreement concluded upon these Conditions contains a gap or a
provision is or becomes invalid, whether in whole or in part, the
remainder of the agreement shall continue to be valid. In the event
that the invalidity is not due to a breach of Sections 305 et. seq. of the
German Civil Code (BGB) a provision shall be deemed to have been
agreed which comes closest to the commercial purpose of the absent
or invalid provision originally intended by the contract parties.
15.2 The contractual relationship between the contract parties shall be
governed by the law of the Federal Republic of Germany. The UN
Convention on Contracts for the International Sale of Goods pursuant
to the Vienna Convention of 11 April 1980 shall not apply. The
contract language is German.
15.3 The place of performance for both parties shall in each case be the
receiving point designated by DACHSER. The exclusive place of
jurisdiction for all disputes which arise out of the contractual
relationship either directly or indirectly shall be Kempten.
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