Conditions of Purchase

(TPS TECHNITUBE RÖHRENWERKE GmbH, as of 06/2023)

1. General

   1. These General Terms and Conditions of Purchase shall apply exclusively to all orders placed by TPS-Technitube Röhrenwerke GmbH (Client) with entrepreneurs within the meaning of § 14 BGB (Contractor).
   2. The Client does not recognise the Contractor's general terms and conditions of business that contradict these Terms and Conditions of Purchase. They shall only become part of the contract if the Client expressly agrees to them in writing.
   3. In addition to these Terms and Conditions of Purchase, the provisions of the purchase contract, contract for work and materials or contract for work and services and the individual order as well as the drawings, descriptions, plans and calculations belonging to the order shall apply to the type and scope of the services and deliveries. The contractor shall check these documents for discrepancies and notify the client of any concerns regarding the execution of the order.

2. Order

   1. Orders must be placed in writing to be valid. It shall also be deemed to have been complied with in the case of transmission by electronic data transfer.
   2. Verbal or telephone orders shall only become legally binding once the written and signed order has been prepared.
   3. Verbal additional agreements shall only become binding if confirmed in writing by the Client.
   4. The Contractor must confirm the order in writing within 14 days of its receipt. Otherwise, the Client has the right to revoke the order.
   5. Documents used by the Contractor in business transactions with the Client must contain the following information: Order number, plant, delivery address/receiving point, complete article text/object description, quantities and quantity units, goods tariff number and VAT ID number.

3. Prices/ Invoicing/ Delay

   1. The agreed prices are fixed prices plus statutory VAT including packaging and are free to destination.
   2. If a price "ex works" or "ex warehouse" has been agreed, the Client shall only pay the most favourable freight costs in each case.
   3. Service charges are not paid.
   4. The Contractor must send its invoices separately for each order to the specified invoice address. Invoices which do not contain the complete order data (order number, order date) shall be deemed not to have been issued. Invoices shall not be deemed to be an order confirmation.
   5. In addition, invoices, all billing documents such as parts lists, proof of work, measurements, etc. must be attached. In addition, invoices, all billing documents such as parts lists, work lists, measurements, etc. must be enclosed and the legally due VAT must be shown in each invoice.
   6. Cost estimates are non-binding, the preparation remains free of charge for the client.
   7. Payments do not imply recognition of the delivery or service as being in accordance with the contract.
   8. In amendment of the statutory provisions, default in payment shall require receipt of a reminder by the Client.

4. Offset/ Right of retention/ Assignment

   1. The Contractor may only offset against claims recognised by the client or legally established claims.
   2. The Contractor shall likewise only be entitled to a right of retention in the case of claims recognised by the Client or legally established.
   3. Assignments and other transfers of rights and obligations of the Contractor outside the scope of application of § 354 a of the German Commercial Code (HGB) shall only be effective with the written consent of the Client.
   4. The Client shall be entitled to offset any claims due to the Contractor against any claims due to the Client.
   5. The assignment of claims against the Client to third parties is only permissible with the prior written consent of the Client.

5. Delivery item and execution

   1. The Client's order shall be decisive for the content and scope of the delivery.
   2. Insofar as no further requirements are specified in the order, the Contractor shall take into account the recognised rules of technology as well as the respective applicable statutory or official rules.
   3. The delivery items are to be delivered in customary quality and in accordance with DIN, VDI, DVGW or equivalent standards, insofar as these exist. The delivery items shall in any case be manufactured and equipped in such a way that they comply with the statutory provisions applicable at the place of performance on the day of delivery, in particular with regard to technical equipment, hazardous substances, accident prevention, emission protection and workplace protection, as well as with the established scientific findings.
   4. Machines and technical work equipment, portable electrical equipment and electrical installation material must be manufactured in accordance with the VDE regulations. The products eligible for the mark must be tested according to VDE and bear the VDE test mark permanently.
   5. The values determined during the incoming goods inspection are binding for dimensions, weights and quantities of a delivery.
   6. The incoming weights determined on the customer's factory scales shall apply for the determination of the weight. If it is not possible to weigh the goods at the customer's premises, the weights determined by the railway authorities on the consignment note or, in the case of delivery by lorry, the weights determined by a public weighing machine shall apply. If it is not possible to weigh the delivery item, the supplier must provide evidence of the construction weight.

6. Scope of services

   1. The scope of services includes, among other things, that the Contractor provides the Client with all technical documents (also for subcontractors) as well as other documents required for new production, maintenance and operation. These technical documents must comply with the International System of Units SI.
   2. All rights of use required for the use of the supplies and services by the Client or third parties, taking into account any patents, supplementary protection certificates, trademarks, utility models, shall be assigned to the Client.
   3. The Client shall be given the unrestricted authority to carry out repairs to the accepted performance and changes thereto himself or to have them carried out by third parties.
   4. If the agreed scope of services is to be deviated from, the Contractor shall only be entitled to make additional claims or changes to deadlines if a corresponding written supplementary agreement has been concluded prior to execution.
   5. The ordered quantities are binding. In the event of over-deliveries, the Client shall be entitled to reject these at the Contractor's expense.

7. Delivery/ Transfer of risk and ownership

   1. Unless otherwise agreed, deliveries shall be made to the delivery address/receiving point or to the shipping address stated in the Client's order.
   2. The risk shall pass to the Client as soon as the goods have been received at his works and duly handed over to the competent receiving points. If a work is owed, the risk shall only pass to the client upon acceptance by the Client.
   3. The signing of the delivery note by the Client does not constitute acceptance of the delivered goods as being in accordance with the contract and does not constitute acceptance.
   4. The specified shipping addresses must be observed. Delivery to a place of receipt other than that designated by the Client shall not result in the transfer of risk even if the delivery is accepted. The Contractor shall bear the Client's additional costs resulting from delivery to a place of delivery other than the agreed place of delivery.
   5. The Client is not obliged to accept partial or excess deliveries that have not been expressly agreed. The same applies if goods are delivered before the agreed delivery date. In such cases, the Client is entitled to return the goods at the Supplier's expense and risk or to store them with third parties.
   6. Partial deliveries are to be marked as such.
   7. Each delivery shall be accompanied by verifiable delivery notes in triplicate. They must contain the order number, the quantities and the exact description of the goods. In addition, in the case of drop shipments, a detailed dispatch note or copy of the delivery note must be sent to the Client in good time.
   8. The storage of items required for the performance of services on the Client's premises may only take place in allocated storage areas and shall be at the Contractor's risk.
   9. During transport, the legal regulations, in particular the provisions of the law on the transport of dangerous goods of the applicable dangerous goods regulations including the respective appendices and annexes, must be observed.
   10. The declaration of the goods in the waybills must be made in accordance with the currently valid regulations of the railways in the case of shipment by rail. Costs and damages arising from incorrect or omitted declarations shall be borne by the Contractor.
   11. The Contractor shall have the receipt of consignments confirmed in writing by the delivery address/receiving point specified in the order.
   12. Any simple or extended retention of title shall not be recognised by the Client.
   13. The Client is entitled to process and sell the goods delivered under retention of title in the ordinary course of business.

8. Delivery time

   1. The agreed delivery dates and delivery periods are binding.
   2. The delivery time shall be deemed to have been made on time if the delivery is available on the agreed date at the Client´s works or at the agreed delivery address/receiving point after confirmation of acceptance by the authorised recipient. Delays in delivery shall be notified to the Client immediately and with notification of the earliest possible delivery date.
   3. Failure to comply with agreed delivery periods and delivery dates shall entitle the Client to demand a contractual penalty from the Contractor for 0.2% of the order amount per working day of delay, uVp to a maximum of 5% of the order sum in total. The statutory default provisions shall remain unaffected by this and shall apply if the Client has accepted the delayed delivery without reservation. A grace period is not required if a fixed delivery date has been agreed.

9. Force majeure

   1. "Force majeure" shall mean any external event that has no operational connection, which cannot be averted even by exercising the utmost reasonable care and which does not fall within the sphere of risk of only one party to the contract.
      These include in particular: War events (including wars, civil wars, revolution, riots), natural disasters (including earthquakes, floods, hurricanes, major fires), epidemics (including pandemics and epidemics).
   2. In the event of force majeure affecting the contractual obligations of a party, that party shall immediately notify the other party of the nature, extent, expected duration and scope of the effect of the impediment on the contractual obligations.
   3. In the event of force majeure affecting the contractual obligations of a party, that party shall be released from its obligation to perform for the duration of this disruption and to the extent of its effect.
      
      • a) Suspensions of individual contractual obligations that revive after the end of the force majeure;
      • b) Adjustment of the contract in good faith;
      • c) Determination of a period of time during which the contractual obligations are suspended. If the event continues beyond this period, the party is again entitled to the rights from a) - d);
      • d) Right of termination or cancellation of the entire contract.
   4. For the party affected by the force majeure, any claims for damages etc. are excluded. The party not affected by the force majeure may assert further legal claims, in particular for damages.

10. Cancellation

    1. The Client is entitled to terminate the contract in whole or in part without giving reasons. In such a case, he shall be obliged to pay for all deliveries and/or services rendered up to that point as well as to adequately remunerate procured material and work performed; in addition, § 648, sentence 2, second half-sentence BGB shall apply in this case. Further claims of the Contractor are excluded.
    2. Furthermore, the Client shall be entitled to terminate the contract if judicial insolvency proceedings are filed against the Contractor's assets, insolvency proceedings are opened or the opening is rejected for lack of assets or the Contractor ceases payments to third parties. The Client shall have the right to take over materials and/or semi-finished products including any special operating resources on reasonable terms.
    3. Notice of termination by the Contractor shall be given in writing, stating the relevant reason for termination.

11. Warranty/ notice of defects/ liability

    1. The Contractor shall be liable for ensuring that his deliveries comply with the recognised rules of technology and the statutory regulations, e.g. on occupational safety and environmental protection, and that they have the contractually agreed properties. He shall also be liable for compliance with the quality, condition, dimensions, design, professional construction and completeness of the goods delivered by him as well as for the specified or agreed performance.
    2. In urgent cases or if the Contractor does not fulfil its obligations for subsequent performance immediately after being requested to do so, the Client shall be entitled to repair or replace defective parts and to remedy corresponding damage at the Contractor's expense.
    3. Claims for material defects shall become statute-barred within the statutory period. For the same period of time, the Contractor assumes the unrestricted guarantee for the contractual conformity of the goods. For a period of six months after the transfer of risk, the Contractor shall bear the burden of proof that the goods were free of defects at the time of the transfer of risk.
    4. For parts of the delivery that have been repaired or repaired within the limitation period for claims based on defects, the limitation period shall recommence at the time when the Contractor has fully satisfied the Client's claims for subsequent performance.
    5. If the Client incurs costs as a result of the defective performance of the subject matter of the contract, in particular transport costs, labour costs, material costs or costs for an incoming goods inspection exceeding the usual scope, the Contractor shall bear these costs.
    6. If the Client takes back products manufactured and/or sold by it as a result of the defectiveness of the subject matter of the contract delivered by the Contractor or if the purchase price was reduced vis-à-vis the Client because of this or if claims were made against it in any other way because of this, the Client reserves the right of recourse vis-à-vis the Contractor, whereby the Client's rights in respect of defects do not require the setting of an otherwise necessary deadline.
    7. Notices of defects shall be deemed to have been given in good time within the meaning of § 377 of the German Commercial Code (HGB) if obvious defects are notified to the supplier within 3 weeks of their discovery. In the case of hidden defects, a period of at least 6 months after delivery shall apply.
    8. In the event that a claim is made against the Client because of product liability, the Contractor shall be obliged to indemnify the Client against such claims if and to the extent that the damage was caused by a defect in the subject matter of the contract delivered by the Contractor. In cases of fault-based liability, however, this shall only apply if the Contractor is at fault. If the cause of the damage lies within the Contractor's area of responsibility, the Contractor shall bear the burden of proof in this respect. In such cases, the Contractor shall bear all costs and expenses, including the costs of any legal action or recall action. In all other respects, the statutory provisions shall apply.
       The Client shall require that the Contractor maintains liability insurance with a coverage of at least EUR 3 million per claim for property damage and financial loss blanket, unlimited for personal injury. Further claims for damages of the Client shall remain unaffected. The Contractor shall provide evidence of this insurance to the Client upon request.

12. Third party rights

    1. The Contractor assumes full guarantee that the delivery or use of the items to be delivered does not infringe any third-party property rights or that no third-party claims for infringement of rights are made against the client.
    2. In the event of infringement of third party rights, the Client shall be entitled to compensation for the damage incurred by the Client against the Contractor irrespective of the Contractor's fault.

13. Production testing/ final inspections

    1. The Client reserves the right to inspect the quality of the material used, dimensional and quantitative accuracy and other quality of the manufactured parts as well as compliance with the other provisions of the order at the Contractor's works and those of its suppliers during manufacture and prior to delivery.
    2. If the Client reserves the right to a final inspection of the completed order item at the Contractor's works by the Client and/or by a third party commissioned by the Client, the Client and the commissioned third party shall be notified in writing 14 days in advance of the readiness for the final inspection, unless a different arrangement has been agreed. The material costs for production testing and final inspections shall be borne by the contractor.
    3. If the Client has stipulated that the completed order item be inspected by a third party, the Contractor shall arrange for the final inspection by the third party to be carried out free of charge for the Client and shall forward the inspection result to the Client without delay, at the latest together with the shipping documents.
    4. The production inspections and the final inspection shall not release the Contractor from its performance and warranty obligations in accordance with the above provisions.

14. Drawings/ Models/ Tools/ Standards/ Specifications

    1. Drawings, models, tools, production documents, etc., which the Client provides to the Contractor for the manufacture of the goods to be delivered to him, may not be used for other purposes, reproduced or provided to third parties. They shall remain the property of the Client and shall be returned to him without request and immediately after completion of the order. The same applies to copies, even if the Contractor made them.
    2. If the production documents are utilised by the Contractor or by third parties without authorisation, the Contractor shall pay a contractual penalty in the amount of the sales price of the items produced according to the documents, subject to the assertion of higher claims for damages. The Contractor shall pass on this obligation to subcontractors with the same wording when placing orders.
    3. Products, which have been manufactured according to documents, designed by the Client or according to his specifications or with his tools or copied tools, may neither be used by the Contractor himself nor offered or delivered to third parties.
    4. Tools, which have been lent to the Supplier by the Client, shall be treated with care by the Contractor, stored accurately, and kept ready for use at the latest drawing level. Upon request, the tools shall be returned to the Client immediately. The Contractor shall insure the tools against fire, theft and other damage at its own expense.
    5. If no issue date/revision number is given for the standards/specifications/drawings specified, the latest issue shall apply. Upon delivery, the Client shall receive the safety data sheet completed by the Contractor for all products in accordance with Directive 91/155/EEC in German. In the event of changes/additions, the Client shall receive the latest documents without being requested to do so.

15. Import and export regulations/ customs

    1. 1. In the case of deliveries and services from a country outside Germany that is a member of the EU, the Contractor's EU VAT identification number must be stated.
    2. 2. Imported goods shall be delivered duty paid. The Contractor is obliged to provide the declarations and information required within the framework of Regulation (EC) No. 1207 / 2001 at his own expense, to permit inspections by the customs authorities and to provide the necessary official confirmations.
       The Contractor is obliged to inform the Client in detail and in writing about any licensing requirements for (re-)exports in accordance with German and European export and customs regulations as well as export and customs regulations of the country of origin of the goods and services.

16. Execution of works

    1. Persons who carry out work on the Client's factory premises in fulfilment of the contract shall observe the provisions on occupational health and safety and follow the instructions of the Client's specialist personnel.
    2. Liability for accidents that happen to these persons on the factory premises shall be excluded, insofar as these were not caused by intentional or grossly negligent breach of duty on the part of the Client, a legal representative or vicarious agent.

17. Unlawful restrictions of competition

    1. 1. If the Contractor can be proven to have culpably entered into an agreement that constitutes an impermissible restriction of competition, it shall pay 15 per cent of the net invoice amount of this contract (excluding discounts and VAT) to the Client. Both contracting parties reserve the right to prove higher or lower damages.
       The payment obligation shall also apply if the contract is terminated or has already been fulfilled. Other contractual or statutory claims of the Client shall remain unaffected.
    2. Inadmissible restrictions of competition are in particular anti-competitive practices and agreements with other contractors/candidates on
       • the prices to be charged,
       • Commitments of other charges,
       • Profit mark-ups,
       • Processing margins and other price components,
       • Payment, delivery and other terms and conditions, insofar as they directly influence the price,
       • payment of default compensation or compensation payments and profit sharing or other levies, as well as recommendations, unless the conduct and agreements are permissible under the Act against Restraints of Competition (GWB).

18. Confidentiality obligations/ data protection

    1. The contractor undertakes to treat as confidential all confidential information that he receives during the execution of the order and to keep it confidential within the scope of the applicable laws. Confidential information, regardless of its form, includes
       • all non-public information about know-how, inventions, technologies, customers and customer relationships, suppliers and supplier relationships, business plans, advertising and marketing activities, finances and other business matters of the client,
       • information of third parties, which the client must keep secret on any legal bases,
       • personal data and
       • business and trade secrets.
    2. The contractor undertakes in particular to process personal data only in accordance with the principles of data protection legislation, in particular the provisions of Art. 5 DSGVO (General Data Protection Regulation).
    3. In order to comply with the legal obligation to provide information regarding the processing of personal data in accordance with Art. 13 DS-GVO, the relevant data protection notice, which can be provided free of charge in written form on request, can be accessed here
    4. Exempt from the obligation to secrecy remain statutory information obligations or orders of authorities or governments under whose jurisdiction the contractor stands, as well as information
       • which are publicly available or become publicly available without violation of this confidentiality obligation,
       • already known to the partner at the time of receipt,
       • obtained from a third party who has not acquired or disclosed this information in unlawful manner or
       • which the contractor demonstrably developed independently and without the use of the information provided by the client.
    5. This confidentiality obligation shall remain valid for five years after the conclusion of negotiations between the parties concerning the commencement of business relations or after the termination of the business relations of the parties, whichever is later.

19. Final provisions

    1. The place of jurisdiction for deliveries and payments as well as all other obligations arising from the contract is exclusively the location of the Client´s place of business.
    2. Exclusively German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) shall govern the legal relationship between the Client and the Contractor.
    3. Any invalidity of any of the above terms and conditions shall not affect the validity of the remaining terms and conditions.
    4. The Client reserves the right to make changes to the terms and conditions of purchase. These shall be announced on the Client's website.
    5. In the event of any discrepancy between the German and English versions of these General Terms and Conditions of Purchase, the German version shall prevail.