| General Terms and Conditions of Supply
General Terms and Conditions of Supply
for Products and Services in the Electrical Industry
I
General Provisions
Only the Terms and Conditions set forth hereinbelow apply to deliveries from the supplier. Any terms and conditions conflicting with or deviating from the Terms and Conditions of the supplier shall not apply unless the supplier explicitly consents to the application thereof in writing. The Terms and Conditions set forth hereinbelow shall apply even if the supplier performs delivery to the purchaser without reservation notwithstanding its knowledge of terms and conditions of the purchaser conflicting with or deviating from these Terms and Conditions.
II
Scope of Delivery or Performance
1. The written declarations by both contracting parties shall be authoritative as regards the scope of delivery or performance. If a contract is entered into without any such reciprocal declarations, either the written order con-firmation by the supplier or provider (hereinafter: Supplier) or, in the absence of such, the written order of the purchaser shall be authoritative.
2. Protective devices shall be included in the delivery to the extent prescribed by law or expressly agreed.
3. The provisions of the Association of German Electrical Engineers shall apply to all deliveries and services insofar as they are relevant for the safety of the deliveries or services. Deviations are permissible insofar as the same level of safety is otherwise guaranteed.
4. The Supplier reserves the unrestricted right to ownership and copyright exploitation rights in cost estimates, drawings and other documentation; they may only be made accessible to third parties given the prior approval of the Supplier. Drawings and other documentation forming part of quotations shall be returned immediately upon request if the assignment is not placed with the Supplier. Sentences 1 and 2 apply mutatis mutandis to the purchaser’s documentation; this documentation may, however, be made accessible to those third parties to whom the Supplier has admissibly sub-contracted delivery or service.
III
Prices
1. Prices shall be deemed ex works excluding packaging in case of delivery without installation or assembly.
2. If the Supplier has assumed responsibility for installation or assembly and unless otherwise agreed, the pur-chaser shall pay all requisite incidental expenses such as travel costs, costs of transporting hand tools and personal luggage and field allowance in addition to the remuneration agreed upon.
IV
Reserved Title
1. The products shall remain the property of the Supplier pending performance of all claims due to the Supplier from the purchaser on the basis of the business relationship. Any claims of the Supplier against the Purchaser in connection with the disposal of scrap electric appliances according to Art.XIII. Para.1. and 2. shall not pre-clude a transfer of title. The purchaser is obliged to treat the products with care, in particular the purchaser is obliged to have them adequately insured at their replacement value at the purchaser’s own expense against the risk of fire and water damage and theft. The purchaser must conduct the maintenance and service work necessary at its own expense.
The Supplier must be advised immediately in case of attachment or seizure by third parties.
2. The purchaser has the right to resell the products in the normal course of business, the purchaser shall, how-ever, assign to the Supplier already all existing and future claims to which the purchaser is entitled from its purchasers or third parties on the basis of the resale of the products in an amount equivalent to the final in-voice amount (including turnover tax) of the Supplier. The purchaser is authorized to collect this claim even af-ter the assignment thereof. The Supplier’s authority to collect the claim itself shall remain unaffected hereby. However, the Supplier undertakes not to collect the claim as long as the purchaser is not in default in payment and in particular has not filed for the initiation of insolvency proceedings.
3. If the product purchased is indivisibly mixed with third party products, the purchaser acquires joint ownership in the new product in the same proportion as the value of the product with respect to the other products mixed at the time of such mixing. If the mixing is effected so that the product of the purchaser is to be regarded as the purchaser product, then it is deemed agreed that the purchaser assign to the Supplier proportionate own-ership. The purchaser shall hold the sole property or joint property thus arising in safe custody on behalf of the Supplier.
4. If the realizable value of the security of the Supplier should exceed the value of the claim to be secured by more than 20%, the Supplier shall release security at its discretion at the request of the purchaser.
5. Recovering the products or asserting rights to reserved title on account of default in payment constitutes re-scission of the agreement, save as otherwise expressly determined by the Supplier.
6. In case of violations of obligations by the purchaser other than default in payment, in particular in case of jeopardy to the product purchased due to the purchaser’s behavior in breach of duty, the Supplier shall be en-titled to recover the product purchased without rescission of the contract. The purchaser must release the product purchased.
V
Terms of Payment
1. Payments are to be effected to the Supplier’s place of payment without any deductions.
2. If the term for payment is not complied with, the Supplier has the right to claim default interest in an amount of 8 percent points above the respective base rate for interest p.a.. The Supplier reserves the right to assert a claim to further damage.
3. The right of retention or offset against any counterclaims is only possible if such counterclaims have been acknowledged or adjudicated with res judicata effect by a court of law.
VI
Deadline for Delivery or Performance
1. The reciprocal written declarations are binding as regards the deadline for delivery and performance, Article 1, sentence 2 shall apply analogously. The precondition for compliance with the deadline is the punctual receipt of all the documentation to be supplied by the purchaser, the required permits, clearances, punctual clarifica-tion and approval of plans, as well as compliance with payment terms agreed upon and with other commit-ments. If these preconditions are not met in good time, the deadline shall be extended accordingly.
2. The deadline shall be considered met if:
a) in case of delivery without installation or assembly, the consignment in operational condition is dis-patched or collected within the deadline for delivery and performance. If dispatch is delayed for reasons which are the responsibility of the purchaser, the deadline shall be deemed complied with if notification of readiness for dispatch is sent within the period agreed;
b) in case of delivery with installation or assembly, as soon as this is effected within the period agreed.
3.
a) If non-compliance with the deadline for delivery or performance is provably due to mobilization, war, in-surrection, strike, lockout or to the occurrence of unforeseeable impediments, the deadline shall be ex-tended appropriately.
b) If the Supplier is in default, the purchaser can, insofar as it proves that it incurred damage as a result thereof, demand compensation for each complete week of default in an amount of 0.5% per week but not exceeding a maximum of 5% of the price of that part of the delivery which could not be properly commissioned due to the default.
c) Both claims for damages by the purchaser on account of delayed delivery and claims for damages in lieu of performance in excess of the limits set forth in b) above are excluded in all cases of delayed de-livery, within the limits set forth in Article XII, even following the expiration of a deadline for delivery set for the Supplier. The aforementioned rulings do not entail a change in the burden of proof to the detri-ment of the purchaser.
d) The purchaser is obliged, at the Supplier’s request, to declare within a reasonable period of time, whether it wishes to rescind the contract on account of the delayed delivery or whether it insists on de-livery.
e) If dispatch or supply is delayed at the purchaser’s request for more than one month after notification of readiness for delivery, the Supplier may charge storage fees in an amount equivalent to 0.5% of the price of the goods for delivery for any month which has started, but not exceeding an aggregate of 5%. The contracting parties have the right to prove higher or lower storage costs.
VII
Passing of Risk
A
Risk passes to the purchaser even if delivery has been agreed with carriage prepaid when:
a) in case of delivery without installation or assembly, the consignment in operational condition has been dis-patched or collected. Packaging shall be effected with utmost care. Dispatch shall be effected at the Supplier’s best discretion. At the purchaser’s request and expense the Supplier shall insure the consignment against the risk of breakage, transport and fire damage.
b) in case of delivery with installation or assembly, on the day of takeover in the purchaser’s own facility; insofar as trial run has been agreed, after a faultless trial run. The precondition for this is that the trial run or takeover in the purchaser’s own facility is performed immediately after the installation or assembly in operational condi-tion. If the purchaser does not take up the offer of a trial run or takeover in its own facility, the risk for the time of delay shall pass to the purchaser 14 days after such offer.
c) If dispatch, delivery, the commencement or the execution of the installation or assembly is delayed at the pur-chaser’s request or for reasons for which the purchaser is responsible, risk for the time of such delay shall pass to the purchaser; the Supplier is, however, obliged, at the purchaser’s request and expense, to arrange for the insurance required of it.
VIII
Installation and Assembly
A
The following provision shall apply to each type of installation and assembly save as otherwise agreed in writing:
a) The purchaser shall provide punctually and at its expense:
aa) the required number of auxiliary teams such as odd-jobbers and also, if required, masons, carpenters, fitters, crane drivers, other skilled laborers together with the tools they require;
bb) all of the earth, cementing, construction, chiseling, scaffolding, plaster, painting and other non-allied ancillary work, including the construction materials required for such work;
cc) the items and materials required for the assembly and commissioning such as scaffold boards, wedges, bed-ding, cement, plastering and sealing agents, lubricants, fuels etc.; furthermore scaffolding, lifting and other equipment;
dd) operating power and water, including all the necessary connections up to the place of use, heating and gen-eral lighting;
ee) sufficiently large, suitable, dry and lockable rooms on the assembly site for storing the machine parts, appara-tus, materials, tools etc and suitable working and leisure rooms for the assembly personnel, including suitable sanitary facilities appropriate to the circumstances; furthermore, the purchaser shall undertake action to pro-tect the property of the Supplier and assembly personnel on the building site as it would to protect its own property;
ff) protective clothing and protective equipment as required in accordance with the special circumstances on the assembly site and which is not customary in the field of industry of the Supplier.
b) Prior to commencing the assembly work the purchaser shall provide, without any specific request to do so, the necessary information on the location of concealed electricity conduits, gas and water pipes and of any similar equipment and the requisite information on balance.
c) Prior to commencing the installation or assembly work, the supply parts necessary to commence the work must be located on the site and all of the other masonry, carpentry and other preparatory work must have made sufficient progress prior to commencement of the erection to enable the installation or assembly to be commenced immediately after the arrival of the installation or assembly personnel and continued without inter-ruption. In particular the access routes and the installation or assembly site must be cleared and leveled at ground level, the basic masonry must be set and dry, the foundation walls must be erected and backfilled; in case of indoor installation, wall and ceiling plasterwork must be complete, in particular doors and windows must be fitted.
d) In case the installation, assembly or commissioning is delayed by circumstances not attributable to the Sup-plier, the purchaser has to bear to a reasonable extent the costs of the waiting time and the costs of additional travel necessary by the Supplier or assembly personnel.
e) The purchaser has to certify the working time to the installation or assembly personnel each week according to its best knowledge. The purchaser is furthermore obligated to immediately hand over to the installation or as-sembly personnel a written confirmation upon conclusion of the installation or the assembly work.
f) The Supplier is not liable for the work of the installation or assembly personnel or of other agents employed in the execution of its obligation insofar as the work is not related to the delivery, the installation or assembly or insofar as the work was occasioned by the purchaser.
B
In case the Supplier has taken on the installation or assembly against individual invoicing, the following provisions shall apply in addition to the provisions set forth under part A:
1. The purchaser shall pay the Supplier the agreed rates for working time and extra payments for overtime, night work, work on Sundays and public holidays, for work subject to difficult conditions and for planning and moni-toring as agreed upon at the time the order was placed. Time for preparatory travel, running times and feed-back is deemed to be working time.
2. In addition, the following costs will be remunerated separately:
a) Travel expenses, cost of transporting hand tools and personal luggage.
b) Field allowance for working time as well as for vacation and public holidays.
IX
Taking of Delivery
1. The purchaser may not refuse acceptance of delivery of goods supplied because of minor defects.
2. Partial deliveries are permissible insofar as is reasonably acceptable for the purchaser.
X
Liability for Product Defects
The Supplier is liable as follows only with respect to defects existing at the time of passing of risk.
1. The Supplier must be notified of defects in writing immediately after delivery and immediately upon the discov-ery thereof in case of concealed defects. This shall also apply to a recall by the purchaser pursuant to Sec-tions 478 and 479 German Civil Code (BGB).
2. The Supplier shall effect subsequent performance, normally by repair or, if the Supplier cannot be reasonably expected to effect the repair work, by supplying a defect-free product. The Supplier must be given reasonable time and opportunity to effect the subsequent performance. If the Supplier is denied this possibility, it is re-leased and discharged from the obligation to effect subsequent performance and with respect to other claims on account of defects.
3. If subsequent performance is not affected within the deadline set, the purchaser shall be entitled to demand damages in lieu of performance and/or rescission or a reduction in the purchase price. No deadline must be set if the Supplier has definitively refused to effect subsequent performance or if at least three attempts at subsequent performance have failed. Any claims other than the aforementioned warranty claims are excluded save as provided in Section XII.
4. Claims on account of defects do not exist in case of an only minor deviation from the quality agreed upon, in case of a merely minor impairment in useability, in case of natural wear and tear or damage after the passing of risk due to defective or neglected operating resources or to special external influences which were not fore-seen under the terms of the contract. Similarly, if the purchaser or a third party undertakes improper modifica-tions or maintenance work, there shall be no claims to warranty in this respect or in respect of the conse-quences thereof.
5. Claims by the purchaser on account of outlays necessary for the purpose of subsequent performance, in par-ticular transport routes, cost of labor and materials are excluded insofar as such outlays are increased be-cause the subject matter of the delivery is subsequently moved to another place, unless such removal is in ac-cordance with its contractual use.
6. Claims to recourse against the Supplier by the purchaser pursuant to Section 478 BGB only exist insofar as the contract entered into between the purchaser and its purchasers is subject to a jurisdiction in which such claim to recourse is mandatory and insofar as the purchaser did not reach any agreements with its purchaser in excess of the statutory claims on account of defects. The terms of Article X, 4 shall apply mutatis mutandis with respect to the extent of the claim to recourse against the Supplier by the purchaser.
7. Insofar as individual items delivered are resold straight to the consumer pursuant to Section 13 BGB, the pur-chaser can assert claims to warranty with respect to the Supplier subject to the following preconditions:
- If, in case of a defect, the consumer demands a type of subsequent performance which the purchaser is entitled to refuse under the provisions of Section 439 (3) BGB, the purchaser must make use of this right of refusal. If the purchaser fails to do so, the purchaser shall bear the additional costs itself.
- If the consumer is justified in demanding delivery of a new product or damages in lieu of the entire per-formance or if it is justified in rescinding the contract, the purchaser is obliged to demand the compen-sation for any benefits obtained by the consumer.
- If the purchaser makes use of its right of recourse with respect to the Supplier and if it receives the products back from the consumer, the purchaser must give the Supplier the possibility of examining the alleged defect. This shall be effected by sending the products to the Supplier for examination upon re-quest.
- If the purchaser conducts repair work due to a justified claim on account of defect, compensation shall be effected by the Supplier’s remunerating the expenditure in accordance with its conditions for proc-essing guarantee cases.
8. Claims to warranty by the purchaser shall become statute-barred after 12 months. This does not apply insofar as Section 438 (1) subpara 2 (Building Constructions and Products for Building Constructions), Section 479 (Claim to Recourse) and Section 634 a (1) subpara 2 (Constructional Defects) of the German Civil Code (BGB) prescribe longer statute bars or in case of fatal or physical injury or damage to health, in the event of an intentional or grossly negligent violation of an obligation by the Supplier or in case of fraudulent non-disclosure of a defect. The statutory provisions governing tolling of the statute of limitations, suspension and recom-mencement of the statute bars shall remain unaffected.
XI
Impossibility, Adjustment of the Contract
1. If the Supplier refuses to supply because delivery was already impossible at the time the contract was entered into or required an expenditure grossly out of proportion to the purchaser’s interest in performance, the Supplier shall be liable to pay the purchaser damages in lieu of performance even if it was not responsible for the default. This shall not apply if the Supplier neither knew nor should have known of the impossibility of deli-very. The purchaser’s claim for damages shall be limited to 10% of the value of that part of the delivery which it was not possible to put into proper operation on account of the impossibility.
2. If the impossibility or the disproportionate expenditure on rendering performance does not occur until after the contract has been entered into, the Supplier shall be liable for damages unless the occurrence was neither foreseeable nor avoidable.
3. Liability for damages in lieu of performance is excluded save as provided for in Article XII hereof.
XII
Other Claims for Damages
1. Claims for damages and compensation of expenses (hereinafter: Claims for Damages) asserted by the pur-chaser for whatsoever reason, in particular on account of a violation of obligations resulting from the contrac-tual relationship or from tortious acts, are excluded.
2. This shall not apply in case of mandatory liability, for example under the terms of the German Product Liability Act, in case of intent, gross negligence, on account of fatal or physical injury or damage to health, or on ac-count of a breach of material contractual duties. The Claim for Damages in case of a breach of material con-tractual duties is, however, limited to the foreseeable damage typical of the type of contract except in case of intent or gross negligence or in case of liability due to fatal or physical injury or damage to health. This forego-ing provision does not involve any change in the burden of proof to the detriment of the purchaser.
3. Insofar as the purchaser is entitled to Claims for Damages under the terms of this Article, such claims shall become statute-barred upon expiration of the period of the statute of limitations applying to claims on account of defects pursuant to Article X.8. In case of Claims for Damages pursuant to the German Product Liability Act, the statute bars of the Statute of Limitations shall apply.
XIII.
Disposal of scrap electric appliances
1 After the end of the service life of the goods supplied, the Purchaser undertakes to dispose thereof at his own expense and in a due manner as prescribed by law.
2 The Purchaser releases the supplier from the obligation according to §10 Para.2 “ElektroG” (Obligation of manufacturer to take back goods) and from any claims of third parties in connection herewith.
3 The right of the Supplier to takeover/release by the Purchaser comes under the statute of limitation until two years after the final end of the service life of the apparatus. The two year period of suspension commences at the earliest with the receipt of a written notification from the Purchaser on the end of the service life. The right of the Supplier to takeover/release by the Purchaser is in any case only comes under the statute of limitation for 30 years after conclusion of the contract.
XIV
Venue
1. If the purchaser is a registered merchant under German law, the courts with jurisdiction and venue either at the Registered Office or branch of the Supplier at the discretion of the Supplier shall have exclusive jurisdiction and venue over all disputes arising indirectly or directly from the contractual relationship.
2. German law shall govern the contractual relationships.
XV.
Severability Provision
Even if individual points of the contract are legally ineffective, the remaining parts of the contract shall remain binding. This does not apply if adherence to the contract would represent an unacceptable hardship for one of the parties.
Edition: Nov .2005
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General Terms and Conditions of Purchase
GENERAL TERMS AND CONDITIONS OF PURCHASE OF
COOPER CROUSE-HINDS GMBH
I
General Terms
Only the Terms and Conditions set forth herein below apply to orders placed by Cooper Crouse-Hinds GmbH (hereinafter: COOPER). Opposing conditions or conditions deviating from these Terms and Condi-tions of COOPER, in particular Supplier’s terms of delivery, shall not apply unless explicitly agreed to by COOPER in writing. The Terms and Conditions set forth herein below shall also apply if COOPER ac-cepts Supplier’s delivery without reservation although it has knowledge of Supplier’s opposing conditions or of conditions deviating from those of COOPER. This also applies if Supplier indicates that it only wishes to effect delivery in accordance with its conditions.
II
Order and Order Confirmation
1. The written statements given by both parties govern the scope of the order. If a contract is entered into without any such written statements by both parties, COOPER’s written order shall be binding. Orders must be confirmed by Supplier without delay, quoting the reference number. If Supplier fails to confirm COOPER’s order within 14 days of receipt thereof, COOPER shall be entitled to cancel the order. COOPER’s confirmation form enclosed with the order or any method of exchange or transmission of electronic data agreed between COOPER and Supplier shall be used to confirm the order. In this connection the statement must be given in written characters suitable for perma-nent reproduction, indicating the identity of the person giving the statement, and it must be obvious where the statement ends, either by showing a facsimile of the person’s signature or by other means, for instance by the date of the statement or a complimentary ending (text form).
2. To be effective, alterations or additions to the order or the scope thereof must be approved by COOPER. Such approval must be given in writing or in text form.
III
Declaration by Supplier
A declaration by Supplier in accordance with the relevant EC Regulation respectively applying must be enclosed with each delivery in principle. A long-term declaration by Supplier applying for a term of one year may be used for master agreements. COOPER must be notified of any alterations to this in writing or in text form without delay and without any request to do so.
IV
Delivery Dates
1. Agreed delivery dates and periods are binding. Compliance with the delivery date or delivery period is determined by the date of receipt of the goods by COOPER or at any other location agreed be-tween COOPER and Supplier in writing or in text form.
2. If non-compliance with the period for performing delivery or rendering the service by Supplier is provably due to mobilization, war, insurrection, strike, lock-out or the occurrence of other unfore-seeable, similarly serious impediments as regards compliance with the delivery period, then the pe-riod shall be extended appropriately.
3. If Supplier is in default, COOPER may – provided that COOPER can credibly show that it has in-curred damage as a result – demand compensation for each complete week of delay in an amount of 0.2 % per week of the price of that part of delivery which could not be put to pertinent use due to the delay, but not exceeding 2 % of the price thereof. COOPER’s further rights on account of de-layed delivery shall remain unaffected hereby.
4. If Supplier and COOPER agree on a contractual penalty on top of this lump sum, COOPER’s right to rescind the contract and/or assert further claims shall also remain unaffected hereby. COOPER may demand the contractual penalty up to the time of the last payment, even if it accepted the de-livery or service performed by Supplier without any special reservation.
5. If it becomes apparent that Supplier will be unable to meet the delivery dates, Supplier shall contact COOPER without delay. The rights to which COOPER is entitled on account of delayed delivery under the terms of the contract, these Terms and Conditions or by statute, shall not be restricted even if Supplier contacts COOPER in accordance with its aforementioned obligation.
V
Regulations on Dispatch and Notifications of Dispatch
1. The shipping documents have to show the reference numbers prescribed by COOPER (unless otherwise agreed these are as follows: COOPER order number, material and item no.). Notification of dispatch is to be sent to COOPER in duplicate as soon as the consignment is dispatched; this notification of dispatch must contain the following details: exact description, quantity, weight (gross and net weight), type and packaging of the goods. If COOPER and Supplier use electronic meth-ods of communication, notification of dispatch with the aforementioned details shall be transmitted in text form.
2. If COOPER does not receive the notification of dispatch relating to a delivery in good time or if it does not contain the aforementioned details, the goods shall be stored at Supplier’s expense and risk, until such time as COOPER receives the aforementioned details in full.
3. COOPER is a SLVS waiver customer (SLVS-Verzichtskunde). This means that the transport risk is insured by Supplier.
VI
Risk
The risk of accidental loss or deterioration of the goods is borne by Supplier until the goods are delivered to COOPER, or, in the case of performance of work requiring acceptance, until performance is accepted by COOPER.
VII
Receipt of Delivery and Formal Acceptance of Performance
1. In the event of excess delivery exceeding the amount customary in the trade, COOPER reserves the right to return, at Supplier’s expense, the excess goods supplied.
2. In the case of mobilization, war, insurrection, strike, lock-out or the occurrence of other unforesee-able, similarly serious impediments as regards taking delivery, then COOPER has the right to delay taking delivery from Supplier accordingly.
3. Insofar as work requiring formal acceptance is being performed, acceptance shall be effected dur-ing the normal course of business immediately after receipt or initial start-up of the work.
VIII
Payment
1. Unless otherwise agreed, payment, including Value Added Tax, shall be effected at COOPER’s election either on 15th of the month following receipt of the invoice and full delivery of the goods, less 3 % discount, or 90 days after receipt of the invoice and full delivery of the goods. The date of receipt of the invoice shall be deemed to be the invoice date, provided that the invoice was sent to the address of COOPER indicated in COOPER’s order. However the payment periods shall not start to run before the delivery date agreed upon.
2. Payment shall be effected in cash or bills of exchange; the discount charges and tax on bills of exchange shall be borne by COOPER.
IX
Regulations on Protection
1. Supplier undertakes to comply with the recognized rules of technology and, in particular, with the specifications and regulations prescribed by the legislator, supervisory authorities, professional as-sociations and the VDE (Association of German Electrotechnical Engineers) with regard to con-struction, accident prevention and environmental protection.
2. Supplier undertakes in particular to comply with the provisions of the German Act on Placing on the Market, Recovering and the Environmentally Compatible Disposal of Electric and Electronic Equipment (ElektroG) as amended and to ensure that the goods delivered do not contain any of the prohibited substances pursuant to Section 5 ElektroG as amended. If goods delivered should contain even only minor quantities of the following prohibited substances: lead, mercury, cadmium or hexavalent chrome, Supplier is obliged to notify COOPER hereof without delay in order to en-able COOPER to comply with the requirements of the ElektroG, in particular of Section 5 ElektroG, as amended.
X
Warranty
1. As soon as any defects in the delivery are established in accordance with the circumstances pre-vailing during the normal course of business, COOPER shall notify Supplier thereof immediately in writing or in text form, unless otherwise agreed, notably in quality assurance agreements in which COOPER is released from its obligation to examine the goods and give notification of defects as provided for in Section 377 German Commercial Code (HGB). Notification of defects is deemed to be punctual if it is received by Supplier within a period of five working days of gaining knowledge of the respective defect. To this extent Supplier waives the defense of delayed notification of defects.
2. COOPER has the right to demand that Supplier renders subsequent improvement, at COOPER’s election either by rectifying the defect or supplying a defect-free replacement. In this event Supplier is obliged to pay for the expenses arising for the purpose of supplementary performance, in particu-lar, carriage and labor costs and the cost of materials. If, due to the type or serious nature of a de-fect, the defect cannot be remedied within a period of time reasonably acceptable to COOPER even by supplying a defect-free replacement, COOPER has the right to reduce the purchase price or rescind the contract with immediate effect; in the case of defects which can be remedied, COOPER has the right to reduce the purchase price or rescind the contract after expiration to no avail of a reasonable extended deadline.
3. No deadline has to be set if Supplier has seriously and definitively refused subsequent improve-ment, if such subsequent improvement is abortive or the appointment of date is not reasonably ac-ceptable to COOPER. Subsequent improvement is deemed to be abortive after the second unsuc-cessful attempt, unless something else derives from the type of product or the defect or the behav-ior of Supplier.
Nor does a deadline have to be set if, on account of a defect claimed by a consumer which defect already existed before the product was delivered to COOPER, COOPER had to take the product back as a result of the deficiency either from COOPER’s customer in the delivery chain or directly from the consumer, or if the consumer reduced the purchase price.
XI
Product Liability
1. Notwithstanding any liability by COOPER within the scope of product liability in its external relation-ship vis-ā-vis third parties, the following shall apply to Supplier’s liability in its relationship to COOPER: If or to the extent that a claim is asserted against COOPER on account of damage the cause of which lies within Supplier’s organization and area of control, COOPER shall notify Sup-plier hereof immediately in writing or in text form. Supplier is entitled to participate in the legal de-fense against such third party at its own expense. At any event, Supplier shall provide COOPER, upon demand by COOPER, with a bank guarantee to secure COOPER’s claims to indemnity or compensation from Supplier, the merits and the amount of which are credibly asserted by COOPER. If a claim is asserted against COOPER in its external relationship, in a manner binding on COOPER (notably by virtue of a judgment, acknowledgement or settlement), Supplier shall in-demnify COOPER from liability or compensate COOPER for the amounts paid to third parties by COOPER. COOPER shall not acknowledge its liability vis-ā-vis the third party or reach a settlement concerning its liability with the third party without consulting with Supplier. If COOPER and Supplier fail to reach agreement on a joint approach to acknowledging liability or a settlement within a rea-sonable period of time, COOPER shall be responsible for making respective declarations to the third party which will then form the basis for Supplier’s liability.
2. Supplier is obliged to reimburse COOPER for any expenditure incurred on or in connection with recall action which COOPER conducts or conducted, to the extent that the cause of the recall ac-tion lies within Supplier’s organization or domain of control.
3. If the responsibility for COOPER’s liability within the scope of product liability vis-ā-vis third parties lies within both Supplier’s and COOPER’s organization and domain of control, the scope of the li-ability in the parties’ internal relationship shall be governed by the proportion of their respective re-sponsibility by analogous application of Section 254 German Civil Code (BGB).
4. Supplier undertakes to maintain product liability insurance cover in a minimum amount of € 2.5 millions per personal injury/property damage claim – as a lump sum. COOPER remains entitled to assert claims for additional compensation against Supplier.
XII
Industrial Property Rights
If or insofar as a third party asserts justified claims against COOPER on account of an infringement of industrial property rights by the contractual use of supplies or services rendered by Supplier, Supplier shall be liable to COOPER as follows:
Supplier shall, at its discretion and expense, either obtain a right to use the respective supplies or ser-vices, modify them so that they do not infringe the protective right or exchange them. If Supplier is unable to do so within a reasonable period of time to be stipulated by COOPER in writing or in text form, COOPER has the statutory right to either rescind the contract or reduce the purchase price. In lieu of such rescission or price reduction COOPER also has the right to procure, at Supplier’s expense, the req-uisite permission from the owner of such protective rights to deliver, commission, use, resell etc. the sup-ply or service.
In the event of infringement of third party industrial property rights, Supplier’s liability to compensate for damages shall be governed by the provisions of statute.
XIII
Secrecy/Drawings
Supplier is obliged to treat in confidence COOPER’s orders and all the commercial and technical details in connection therewith. Details disclosed by COOPER, drawings etc. prepared by COOPER or Supplier on the basis of such details, may only be otherwise used or exploited if COOPER has given its written approval. Supplier’s sole responsibility is not affected by the delivery or approval of drawings and sam-ples submitted by Supplier.
XIV
Setoff
Supplier may only setoff such claims against COOPER which are undisputed or declared final and abso-lute by a court of law.
XV
Assignment
The rights accruing from an order may only be assigned or transferred to third parties with the mutual agreement of the parties. COOPER’s consent shall be deemed given if Supplier has granted its upstream supplier extended reservation of title in the normal course of business.
XVI
Supplier’s Subcontractors
Supplier is responsible for the choice of any subcontractor for the defect-free rendering of performance by such subcontractor to COOPER in accordance with statutory provisions. In particular, Supplier is unable to exclude its liability under these Terms and Conditions because it has no enforceable claim to recourse from its own suppliers.
XVII
References
Supplier may only use COOPER as a reference given COOPER’s written consent.
XVIII
Place of Performance, Applicable Law, Jurisdiction and Venue
1. The place of performance is Soest, Germany.
2. In the event of all or any disputes arising from or in connection with the contractual relationship either directly or indirectly, the courts with jurisdiction at COOPER’s or Supplier’s head office, at COOPER’s discretion, shall have exclusive jurisdiction if Supplier is a merchant.
3. This Agreement shall be bound by and construed in accordance with the laws of the Federal Re-public of Germany at the exclusion of the United Nation’s Convention of Contracts for the Interna-tional sale of Goods.
XIX
Final Provisions
If one or several provisions contained in this Agreement should be or become ineffective or if the Agree-ment should have a gap, the parties shall agree on a provision to replace an ineffective provision or to complete a gap which approximates most closely the economic intentions pursued by the parties in enter-ing into this Agreement. The effectiveness of the remaining provisions of the Agreement shall remain unaffected by any ineffectiveness of individual provisions and by the existence of a contractual gap.
Even if individual provisions of the contract should be legally ineffective, the remaining parts thereof shall be binding. This shall not apply if upholding the contract would constitute an unreasonable hardship for one party.
Version dated: June 01, 2008
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| General Terms and Conditions of Supply of the Cooper Crouse-Hinds GmbH are valid.
Edition Nov. 2005 (PDF, 165,10 kB)
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General Terms of Purchase
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