PURCHASE CONDITIONS TSE SYSTEMS GMBH – PC-02-2017
1. Subject Matter of the Contract
These Purchase Conditions shall apply to all TSE’s business transactions involving the purchase of materials, equipment or services (hereinafter referred to as “Product”) from entrepreneurs within the meaning of Sec. 14 BGB [German Civil Code]. Order confirmations by the other party (hereinafter referred to as “Supplier”) containing other terms and conditions will not be accepted. This provision shall also apply in the event that the Supplier’s terms and conditions state that only the Supplier’s terms and conditions shall apply. TSE’s Purchase Conditions shall also apply to any and all subsequent transactions with the said Supplier.
2. Conclusion of the contract
Orders of TSE won’t be binding unless they are in writing or until they are confirmed in writing. The Supplier is obligated to point out evident mistakes (e. g. typing errors or miscalculations) and cases of incompleteness of the order to TSE for the purpose of correction or completion, otherwise the contract is considered as not concluded.
The Supplier has to confirm any order by TSE within 14 days in writing and under specification of the numbers of the receipt and the project of TSE. A late confirmation will be considered as a new offer that needs to be accepted by TSE.
3. Review of Technical Data
Technical data, designs, drawings, documents and materials furnished by TSE do not release the Supplier from its obligation to examine whether the Product can be manufactured and utilized without flaws. Any reservations or objections must be asserted in writing. In the event that TSE specifies a particular purpose for application, the Supplier shall have to examine, on the Supplier’s own responsibility, whether or not the material to be provided by the Supplier is suitable and can be safely used for the intended purpose.
TSE reserves its right of ownership and its intellectual property rights over the illustrations, plans, drawings, calculations, instructions, product specifications and other documents furnished to the Supplier. These documents are to be used solely for the purpose of fulfilling the contract and have to be returned to TSE after the contract is settled. These documents must not be disclosed to third parties at any time, regardless of whether the contract is settled or not. This obligation of confidentiality expires once the contents of these documents become common knowledge.
4. Passing of Risk
Unless otherwise expressly agreed in writing, the risk of accidental loss or accidental deterioration shall pass to TSE at the place of destination. Without prejudice to the transport risk borne by the Supplier, the Supplier is obligated to take out a transport insurance policy at the Supplier’s own expense.
5. Delivery Dates / Default / Impossibility of Performance
The delivery date indicated by the supplier is binding. If the delivery is not effected on time TSE is not obligated to set a grace period for the delivery, but is entitled to withdraw from the contract immediately and/or to claim damages. The Supplier bears the procurement risk, except in cases of products manufactured especially for TSE.TSE is entitled to reject partial deliveries or partial services. The delivery has to be accompanied by a delivery slip that includes the numbers of the receipt and of the project.
6. Defects of Quality and Defects of Title
TSE will examine the goods for defects in quality within a reasonable period of time after the arrival of the said goods at the place of destination. Insofar as TSE re-ships or passes on the goods directly to its customers during the normal course of business, and reports this to the Supplier in due time, the period for the examination and the time limit for claims will be extended accordingly.
The Supplier is liable for defects in quality within the framework of the following provisions: If the Product has a defect at the time when the risk passes to TSE, TSE may demand supplementary performance or a reduction in price. The said supplementary performance will be effected at TSE’s option through the removal of the defect or a replacement delivery. The Supplier shall bear the costs thereof. If the Supplier refused to effect supplementary performance without justification, unsuccessfully attempted supplementary performance, or did not act within a reasonable grace period granted for supplementary performance, TSE may remove the defect itself and demand compensation for the expenditures required or an advance payment for the removal. TSE reserves its statutory rights to withdraw from the contract, to claim compensation for damages, in particular, damages in lieu of performance, and its right of recourse pursuant to Sec. 478 and Sec. 479 BGB.
Supplier guarantees that the goods delivered are free from rights and claims of third parties, particularly from pledges, chattel mortgages, retention of title and industrial property rights such as patents, marks and copyrights.
The Supplier will provide TSE with a comprehensive documentation of the delivered Product. The content of the documentation (According to the technical standards agreed upon by the parties as binding, additionally thereunto engineering and production drawings, sectional and exploded assembly drawings, definitions of spare and wear parts, contact data of the Suppliers subcontractors and suppliers, user manuals / operation manuals / operator documentations / installation manuals, configuration manuals, administrator manuals / operator instructions, software documentation, software development documentation, maintenance documentation, operation documentation, training data and information, detailed technical specifications, function specifications with data model, test cases and data, test concepts, test logs and descriptions of the test tools, source code of software programmed solely for TSE, object code for any other software etc.), the language of the documentation (German and English unless stipulated differently) and the format of the documentation (non-encrypted electronic document on standard data medium as either PDF or ASCII-file for source and object code unless stipulated differently) are specified by TSEs order. Delivery of the aforementioned documentation is effectuated simultaneously with delivery of the Product. In case of pre-agreed partial delivery, delivery of the aforementioned documentation is effectuated simultaneously with the first partial delivery.
8. Grant of Rights
To the extent that contents of the documentation as described in Section No. 7 were developed exclusively for TSE, Supplier grants to TSE the exclusive, transferable right to use and exploit the contents of the documentation without limitation in time, manner or place subject to the terms of the order, especially for purposes of further processing of the Product respectively its sale and distribution.
To the extent that contents of the documentation as described in Section No. 7 were developed non-exclusively for TSE, Supplier grants to TSE the non-exclusive, transferable right to use and exploit the contents of the documentation without limitation in time, manner or place subject to the terms of the order, especially for purposes of further processing of the Product respectively its sale and distribution.
9. Product Liability, Indemnification
To the extent that the Supplier is responsible for a defect of the product, the Supplier shall indemnify and hold TSE harmless against any and all third-party claims upon first request by TSE. In this connection, the Supplier is also obligated to reimburse any expenses arising from or in connection with any recall campaign conducted by TSE in accordance with Sec. 683 and Sec. 670 of the German Civil Code [Bürgerliches Gesetzbuch = BGB]. TSE will inform the Supplier, to the extent possible and reasonable, about the content and scope of the recall measures to be undertaken and to give the Supplier the opportunity to comment thereon.
The supplier has to conclude and to maintain a product liability insurance with an insured sum of at least 10 million Euro per case of personal injury / property damage.
10. Manufacture to Customer’s Specifications
In the event that products are manufactured especially for TSE, TSE is entitled to inspect the products prior to delivery with the purpose of determining whether or not such products correspond to the agreed specifications and whether or not such products function properly. If this is not the case, TSE is entitled to refuse acceptance of these products even prior to delivery. In other respects, the provisions of the foregoing Section No. 6 shall apply accordingly.
11. Purchase Price / Payment
The agreed price is a fixed price covering all possible ancillary costs of whatever kind, in particular for packing, transport, customs duties, taxes, etc. Delivery shall be free to place of destination in every respect. Unless otherwise agreed in writing, payment will be effected, at TSE’s option, either within 14 days with a 3% discount or within 30 days net. TSE is entitled to pay by check or bill of exchange. The payment period commences only after TSE has received both the goods and an invoice that corresponds to the fiscal requirements and includes the numbers of the receipt and of the project.
TSE does not owe due date interest. This does not affect the entitlement of the supplier to default interest. TSE will get in default according to the applicable law. However, TSE will not get in default without a prior warning notice by the supplier.
12. Safety Requirements / Environmental Protection
Products delivered to TSE must comply with all statutory safety and environmental-protection provisions in every respect and be labelled accordingly, where applicable.
Packaging has to be redeemed by the supplier at no additional charge upon request of TSE.
13. Place of Performance / Jurisdiction/Governing Law
The place of performance is the place where TSE has its registered office. Insofar as the Customer is a merchant, legal entity under public law or a special trust under public law, the venue for all of the disputes arising from this contract, including check and bill of exchange payment enforcement proceedings and proceedings restricted to documentary evidence shall be the courts at TSE’s place of business. However, TSE is also entitled to institute legal proceedings at the Customer’s statutory place of general jurisdiction. The courts at TSE’s place of business shall also be the venue if the Customer does not have a place of general jurisdiction within the Federal Republic of Germany or the Customer’s domicile or place of business is unknown at the time of the filing of an action.
This contract shall be solely construed in accordance with and solely governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Supranational laws, regulations and trade practices shall not apply. The German version of these Purchase Conditions shall prevail over the respective English version.