General conditions of purchase for Vulkan & Voss Ship Supplies GmbH
1. Determining Conditions
a) The following General Conditions of Purchase shall apply exclusively to all purchases ”VULKAN & VOSS“). They shall apply in the same degree to the purchase of production material (for the purpose of VULKAN & VOSS’s own series production, including in particular raw materials, materials, components, parts) as to the purchase of spare parts, tools or machinery as well as other products of any kind (collectively referred to as the ”Products”), in so far as the applicability of one of the following provisions of these Conditions of Purchase is not restricted exclusively to individual or specified types of purchased items. By delivering its Products to VULKAN & VOSS the supplier accepts the present General Conditions of Purchase.
b) The General Terms and Conditions of Business or other different conditions of the supplier shall not apply unless they have been expressly approved by VULKAN & VOSS in writing. These General Conditions of Purchase shall also apply in all cases wherein VULKAN & VOSS accepts deliveries from the supplier without objecting to conditions of the supplier that deviate from these General Conditions of Purchase (whether VULKAN & VOSS is aware of such conditions or not). All references or indications by the supplier to the validity of its General Terms and Conditions of Business are hereby expressly rejected.
c) These General Conditions of Purchase shall also apply to all future transactions with the supplier.
d) The provisions of these General Conditions of Purchase shall apply in addition to all other possible agreements that the parties conclude in addition, e.g. framework supply contract, quality agreement.
2. Offer, Offer Documents
a) Inquiries from VULKAN & VOSS to the supplier concerning the supplier’s Products and delivery conditions, or requests from VULKAN & VOSS to make an offer shall in no way be binding upon VULKAN & VOSS.
b) Orders from VULKAN & VOSS shall only be valid and binding if placed in writing. It shall not be necessary for VULKAN & VOSS to sign orders. The written form shall be deemed to have been observed if orders are sent by fax, e-mail or another electronic data transmission system.
c) Unless otherwise expressly agreed, cost estimates submitted by the supplier shall be binding and non-remunerable.
d) A valid and binding contract shall be brought about between VULKAN & VOSS and the supplier, inclusive of the General Conditions of Purchase, when
(i) a written order is transmitted from VULKAN & VOSS to the supplier, and
(ii) the supplier expressly accepts the order (order confirmation) in writing, the said confirmation being received by VULKAN & VOSS within seven days from the date of the order, or
(iii) the supplier commences delivery of the ordered Products. Any order confirmation from the supplier that differs from the order placed by VULKAN & VOSS represents a new offer and must be accepted by VULKAN & VOSS in writing.
e) Even after the order has been confirmed by the supplier, VULKAN & VOSS shall be entitled to require at any time that the supplier shall make changes to the Products (in particular in terms of the Products’ design and performance). In this case, the supplier shall inform VULKAN & VOSS immediately of the impact of this change requirement, in particular with regard to additional or lower costs as well as the delivery date, and the parties shall agree a reasonable adaptation of the contract if required.
f) If the contract or order stipulates that the Products are determined by call-off, then these call-offs shall be binding two days after the instruction is given to the supplier, unless the supplier has ex-pressed an objection by then in writing.
3. Prices, Conditions of Payment
a) The price shown in an order shall be binding. In the absence of a differing agreement, the price shall include packaging and shall be ”DDP” (Delivered Duty Paid) in accordance with Incoterms 2000.
b) If terms of delivery are agreed in accordance with Incoterms 2000, whereby VULKAN & VOSS pays for the transportation, the goods shall be transported by a forwarding agent approved by VULKAN & VOSS. Unless otherwise agreed, however, the supplier shall assume responsibility for notification of the consignment with the forwarding agent. The supplier shall inform VULKAN & VOSS immediately if the forwarding agent does not collect the goods as confirmed in the notification.
c) In the event that, during the term of a contract concerning the delivery of Products, the supplier supplies Products that are the subject of the contract or similar in comparable quantities to a third party under more favourable conditions, in particular with regard to price, discounts, technology, quality, terms of payment, delivery periods or other conditions (hereafter the ”Conditions”), then the supplier shall inform VULKAN & VOSS of this fact immediately and automatically grant VULKAN & VOSS these more favourable Conditions. The new Conditions shall apply retrospectively from the time at which the supplier has granted these favourable Conditions to the third party.
d) The invoice shall be sent in triplicate by separate post to the postal address of VULKAN & VOSS as soon as the goods have been delivered. The invoice must contain the date, order number and supplier number. If these Conditions are not fulfilled, then VULKAN & VOSS shall not be responsible for any ensuing delays in processing and settling the invoice.
e) The invoice shall be paid net within 30 days after delivery and receipt of the invoice or with a 2 % cash discount within 14 after delivery and receipt of the invoice.
f) Payment shall be effected by VULKAN & VOSS by means of a bank transfer. Any other method of payment as well as credit/offsetting procedures shall only apply if agreed separately between the parties.
g) Notwithstanding § 354a HGB [German Commercial Code], the supplier shall not be entitled with-out written consent from VULKAN & VOSS to assign claims accruing to him from the delivery relations with VULKAN & VOSS or to have such claims collected by third parties.
h) The acceptance of the supplied goods and/or their payment by VULKAN & VOSS shall not constitute the waiving of any later assertion of claims based on defects, damages or any other claims against the supplier.
4. Delivery Dates, Delay in Delivery
a) The delivery dates agreed with the supplier shall be binding. Depending on the agreed terms of delivery, compliance with the delivery period shall be determined by the date of receipt of the Products at the destination specified by VULKAN & VOSS or the prompt availability of the Products for collection from the supplier’s works.
b) If the supplier is in delay in making a delivery, then the supplier shall incur a contractual penalty of 1% of the purchase price of the delayed Products for each commenced week of the delay in delivery, extending to a maximum, however, of 5% of the said purchase price. This shall not affect the right to assert claims for compensation. The supplier must also reimburse inter alia the following costs: special travel costs (both from suppliers to VULKAN & VOSS and from VULKAN & VOSS to its customers), additional preproduction costs, additional costs caused by special shifts, loss of production costs, replacement/conversion costs, additional test costs and lost profit. Any contractual penalty due shall, however, be credited against any asserted claim for compensation.
c) VULKAN & VOSS shall only accept premature deliveries after they have been agreed in writing. If the supplier delivers the Products earlier than the agreed delivery date, VULKAN & VOSS reserves the right to return the Products at the supplier’s cost and risk. If VULKAN & VOSS does not return goods that are delivered early, then the Products shall be stored until the agreed delivery date at the supplier’s cost and risk. In the case of a premature delivery, VULKAN & VOSS shall be entitled to use the agreed delivery date as the basis for calculating the date of payment.
d) Notwithstanding lit. a) – b), if the supplier realizes that it is not possible to comply with a delivery date or quantity agreed with VULKAN & VOSS, it must inform VULKAN & VOSS immediately, stating the reasons, the anticipated duration of the delay and the effects it will have, together with suitable measures for averting them.
e) All special journeys the supplier decides to make must be recorded, specifying the order details/information, the reason for the special journey and measures for correcting these reasons and sent to VULKAN & VOSS’s Logistics Department at the beginning of a calendar month for the preceding month. The supplier shall initiate the corrective measures immediately.
f) For each case of negligent
(i) deviation from delivery and packaging specifications,
(ii) premature delivery or
(iii) surplus delivery
VULKAN & VOSS shall be entitled to assert a claim for its additional expenses for logistics in the form of lump sum compensation amounting to EUR 250,– (notwithstanding the right to demonstrate greater damages in individual cases). The supplier shall in each case be entitled to demonstrate that VULKAN & VOSS has incurred no damages or fewer damages than this lump sum.
5. Force majeure
a) Interruptions to delivery caused by events that are unforeseeable and unavoidable and outside the supplier’s sphere of influence and for which the supplier is not responsible such as force majeure, war or natural catastrophes shall release the supplier from its obligations for the duration of this interruption and to the extent of its impact.
b) Agreed periods of time shall by extended by the duration of such an interruption; VULKAN & VOSS must be informed of the occurrence of such an interruption immediately and in an appropriate manner.
c) If the end of such an interruption is not foreseeable or the interruption lasts longer than two months, then each party shall have the right to withdraw from the affected contract (or the not yet fulfilled Products) or to terminate the contract without notice.
6. Dispatch, Transfer of Risk
a) The delivery (including the transfer of risk) shall comply with the trade terms (in particular Incoterms 2000) usual in the automobile industry and specified in the order and at the place of receipt/use or collection specified by VULKAN & VOSS in the order. In the absence of such a provision, the delivery shall be made DDP (Incoterms 2000) to the place of receipt or use specified in the order. In this case the risk is transferred at the time of delivery to the agreed place of receipt/use.
b) The supplier shall undertake to enclose the relevant delivery notes with the deliveries. All contents in accordance with Standard VDA 4913 and in particular the order number of VULKAN & VOSS and the supplier number must be stated on the delivery notes. If these conditions are not fulfilled, then VULKAN & VOSS shall not be responsible for any ensuing delays in processing.
7. Quality and Documentation
a) The supplier shall comply with the recognized technical regulations and any applicable safety regulations. In terms of the design and characteristic features of the delivery item, the supplier shall comply with any drawings, samples or other specifications or documents received from VULKAN & VOSS. Modifications to the delivery item or a previously approved production process or its relocation to another site shall require a written notice in due time to VULKAN & VOSS and the prior express consent of VULKAN & VOSS in writing.
b) If the supplier delivers production material to VULKAN & VOSS, the following provisions shall also apply unless VULKAN & VOSS has made a different written request in an individual case or has made a different agreement with the supplier. j) In other respects, following a reasonable period of notice and during normal business hours, and at intervals VULKAN & VOSS deems necessary, VULKAN & VOSS shall be entitled at any time to carry out reasonable inspections and quality audits of the premises in which the supplier manufactures the Products.
c) VULKAN & VOSS shall have the right to terminate the present contract by informing the supplier in writing to this effect if the supplier fails to comply with the agreed quality standards for a period of three months.
8. Hazardous Substances and Preparations
a) The supplier shall fulfill the legal regulations of the countries of manufacture and distribution relating to goods, materials and procedures that are subject to special treatment, inter alia regarding their transportation, packaging, labelling, storage, handling, manufacture and disposal on account of laws, ordinances and other regulations or on account of their composition and their impact on the environment.
b) In this case, the supplier shall provide VULKAN & VOSS with the necessary papers and documents before the order is confirmed. In particular, all hazardous substances and water-endangering materials may be delivered only after presentation of an EC safety data sheet and after approval has been given by VULKAN & VOSS. Should the requirements in accordance with lit.
a) change during the delivery relations, the supplier shall immediately forward to VULKAN & VOSS the papers and documents relating to the changed requirements.
c) VULKAN & VOSS shall be entitled to return hazardous substances and water-endangering materials that were supplied for test purposes to the supplier free of charge.
d) The supplier shall be liable to VULKAN & VOSS for any damage arising as a result of negligent non-compliance with the existing legal regulations.
e) Solely for information purposes, and excluding any responsibility for their accuracy and completeness, VULKAN & VOSS may provide a ”Prescription List/List of Substances Subject to Declaration” on the VULKAN & VOSS homepage “www.vulkan-voss.com”.
f) The supplier shall ensure that the requirements of the EU chemical legislation REACH (Regulation(EC) No. 1907/2006, Official Journal of the European Union dated 30.12.2006) – hereafter referred to as ”REACH” – are complied with within the specified time, in particular pre-registration and registration. VULKAN & VOSS shall not be obliged in any way to carry out the (pre)registration. The supplier is aware that the Products cannot be used if the requirements of REACH are not completely and properly complied with.
g) The supplier shall indemnify VULKAN & VOSS in full against all consequences, in particular damages suffered by VULKAN & VOSS and any claims of third parties against VULKAN & VOSS, that result from the supplier negligently not, partially, or belatedly complying with or fulfilling the above provisions in lit. f) – g.).
a) The supplier shall comply with the requirements of the latest valid Packaging Ordinance.
b) The supplier shall take back used, empty packaging free of charge. If this is not possible, the supplier shall pay the corresponding, reasonable disposal costs incurred by VULKAN & VOSS.
10. Material Defects and Recourse
a) Unless otherwise stated in the following provisions, the legal regulations shall apply to deliveries of defective goods (in particular to production material).
b) On receipt of Products supplied by the supplier for production purposes (production material) VULKAN & VOSS shall examine that the goods ordered conform with those delivered and inspect them for any discrepancies in quantity or externally identifiable damage in so far as and as soon as this is possible in the ordinary course of business. VULKAN & VOSS shall inform the supplier immediately of any defects ascertained during this inspection. In all other respects the supplier shall waive any further incoming goods inspection and testing on VULKAN & VOSS’s part. In the case of other defects that are not ascertained by VULKAN & VOSS until the supplied goods are being processed or used for their intended purpose, VULKAN & VOSS shall inform the supplier immediately upon ascertaining the defects. In this respect the supplier shall waive the defense of delayed complaint.
c) If defective goods are delivered, the supplier shall first be given the opportunity to carry out remedial work, i.e. at VULKAN & VOSS’s discretion either to remedy the defect or supply a new item (replacement parts). In both cases the supplier shall bear all costs resulting to the supplier or VULKAN & VOSS, e.g. transportation costs, travelling expenses, labour and material costs or costs for an incoming goods inspection over and beyond the normal scope. The same shall apply to any costs that may be incurred for removal and fitting. If the case of a subsequent delivery, the supplier shall bear the cost of taking back the defective Products.
d) If the opportunity to carry out remedial work fails, or if such work represents an unreasonable burden on VULKAN & VOSS, or if the supplier does not make an immediate start, then VULKAN & VOSS shall be entitled to withdraw from the contract / order without setting any further time limit and to return the Products at the supplier’s risk and expense. In these and other, urgent cases, in particular to avert acute dangers or avoid substantial damage, if it is no longer possible to inform the supplier of defects and give the supplier even a short period in which to remedy them, VULKAN & VOSS shall be entitled to remedy the faults itself or have them remedied by a third party at the supplier’s expense.
e) Unless otherwise specified below, claims based on defects shall be subject to a limitation period of 30 months from the date the goods are delivered to VULKAN & VOSS. The legal regulations shall apply to material defects in delivered items that are used according to their intended purpose for a building or to defects of title. If replacement parts are supplied (cf. lit. c)) the limitation period shall commence anew upon their delivery to VULKAN & VOSS.
f) Any further claims, in particular for damages or in connection with warranties of the supplier, shall not be affected.
g) For each case wherein VULKAN & VOSS settles a warranty claim, the supplier, if responsible for the defect, shall undertake to pay fixed lump-sum compensation of EUR 250,– (notwithstanding VULKAN & VOSS’s right to assert greater damages in individual cases). The supplier shall in each case be entitled to demonstrate that VULKAN & VOSS has incurred no damages or fewer damages.
h) If in its capacity as an automotive component supplier VULKAN & VOSS is obliged to grant one of its customers a longer or more extensive warranty for defects, if the supplier delivers production material, the supplier shall then also undertake to accept this regulation in future after first receiving written notification thereof.
i) If customers of VULKAN & VOSS – usually automobile manufacturers – apply a reference market procedure or a similar procedure that is usual in the automobile industry for determining and settling warranty claims and assert claims against VULKAN & VOSS for defects in products manufactured by VULKAN & VOSS that result from defects in the supplier’s Products, this procedure shall also be applied to the delivery relations between the supplier and VULKAN & VOSS.
11. Product Liability and Recall
a) If the supplier has caused a product fault and/or (depending upon the basis upon which the claim is made) is responsible for the fault, the supplier shall undertake to pay VULKAN & VOSS compensation at first request or to indemnify VULKAN & VOSS against any third party claims, providing the cause of the claim lies within the supplier’s control and organization and the supplier would itself be liable to a third party. If VULKAN & VOSS has contributed to the cause or fault, then the supplier shall be able to assert this contributory responsibility for the cause or this contributory fault against VULKAN & VOSS. In the relationship between VULKAN & VOSS and the supplier, each party’s share in the payment of compensation shall be in proportion to the respective share in the fault (§ 254 German Civil Code, BGB) and/or responsibility for the cause.
b) The obligations of the supplier in accordance with lit. a) shall also include the payment of costs incurred by VULKAN & VOSS in calling on the services of a lawyer or otherwise incurred in connection with the defence of product liability claims. If VULKAN & VOSS is subject to special regulations regarding the burden of proof in relations with the injured party, these regulations shall also apply in relations between VULKAN & VOSS and the supplier provided that the circumstances requiring proof do not fall within VULKAN & VOSS’s area of responsibility.
c) In product liability cases in accordance with lit. a), the supplier shall provide VULKAN & VOSS with all necessary information and every support within the bounds of reason to fend off claims.
d) In so far as a recall action or program to give notice of ownership is necessary to comply with a law, ordinance, order or any other state requirement or as a safety measure to avoid personal injuries or death or in the case of other field or service actions, the costs, including labour, transportation and verifiability costs inter alia shall be shared on the basis of the contributory fault (§ 254 BGB) / contributory responsibility for the cause attributable to VULKAN & VOSS and the supplier. VULKAN & VOSS shall inform the supplier – in so far as this is possible and reasonable – of the content and extent of the recall action or other field or service actions that are to be carried out and shall give the supplier the opportunity to express its opinion. This shall not affect any other legal claims.
e) The supplier shall undertake to take out and maintain sufficient product liability insurance to cover the risks of product liability, including the risk of recall. At the request of VULKAN & VOSS the supplier shall immediately provide documentary evidence of the conclusion of such an insurance contract. If the supplier is not in a position to furnish evidence of the insurance policies within two weeks, VULKAN & VOSS shall be entitled to conclude such insurance at the supplier’s expense.
12. Industrial Property Rights
a) The supplier guarantees that through the purchase, ownership, offering, use, processing or further transfer of the Products neither VULKAN & VOSS nor customers of VULKAN & VOSS shall infringe any intellectual property rights of third parties, in particular any rights of a third party as to brand, company, name, patent, utility model, design, equipment, or copyrights (including the relevant industrial property right applications) (hereafter ”Industrial Property Rights”) in the supplier’s country of origin, as well as within the German Federal Republic, the European Union, the USA, Canada, Brazil, Argentina, Australia, China, Korea, Thailand, Japan and India. If the supplier negligently infringes this obligation, then the supplier shall indemnify VULKAN & VOSS and its customers at VULKAN & VOSS’s first request against any third-party claims arising from such actual or alleged infringements of property rights and shall bear all costs and expenses incurred by VULKAN & VOSS in this respect, in particular firstly the cost of bringing an action and of defense and secondly costs resulting from observance of a possible duty to refrain.
b) Lit. a) shall not apply if the delivery item was produced on the basis of drawings, models or other detailed information from VULKAN & VOSS and the supplier neither was nor needed to be aware that Industrial Property Rights of third parties were thereby infringed.
c) The parties shall undertake to inform one another immediately of any infringement risks that become known and any cases of alleged infringement and to take reasonable action by common consent against infringement claims.
d) The period of limitation shall be 3 years from the conclusion of the relevant contract.
13. Reservation of Title, Means of Production
a) The Products shall become the property of VULKAN & VOSS upon payment of their full purchase price. Any extended or expanded reservation of title on the part of the supplier to delivered Products is excluded.
b) All parts, raw materials, tools, materials or other devices or items provided by VULKAN & VOSS or purchased by the supplier at VULKAN & VOSS’s expense (and whose procurement costs have been reimbursed by VULKAN & VOSS or are included in and paid for in full in the price payable for the Products) and that are associated with the manufacture of the Products or used for that purpose (hereafter ”Means of Production”) shall remain or become the sole property of VULKAN & VOSS (hereafter ”VULKAN & VOSS Property”). VULKAN & VOSS shall also retain all rights to drafts, samples, drawings, data, models or other information and documents supplied by VULKAN & VOSS (hereafter ”VULKAN & VOSS Documents”). The supplier shall expressly agree that VULKAN & VOSS Property or VULKAN & VOSS Documents shall not be used for the manufacture or construction of products for third-party customers without VULKAN & VOSS’s prior consent in writing.
c) The supplier shall possess VULKAN & VOSS Property and VULKAN & VOSS Documents as a borrower and shall store them separately and apart from any property belonging to other persons and clearly labelled VULKAN & VOSS Property and VULKAN & VOSS Documents to indicate that they are the property of VULKAN & VOSS. VULKAN & VOSS Property and VULKAN & VOSS Documents shall not be removed from the supplier’s company premises without written instruction from VULKAN & VOSS, except for the purpose of fulfilling the contract.
d) The supplier shall undertake to insure VULKAN & VOSS Property for its replacement value and at the supplier’s own expense at least against fire, water damage and theft and to maintain such insurance policies On request, the supplier shall provide VULKAN & VOSS with documentary evidence of the existence of appropriate insurance policies. The supplier shall carry out any necessary maintenance work at the usual intervals and at its own expense and shall notify VULKAN & VOSS immediately of any damage or faults.
e) If VULKAN & VOSS provides the supplier with products, raw materials or other material (”Goods”) so that the supplier can manufacture Products, VULKAN & VOSS reserves title to such Goods. The treatment and processing, modification or installation or reshaping of such Goods by the supplier shall be carried out in the name of VULKAN & VOSS. If the reserved Goods are processed together with other items that are not the property of VULKAN & VOSS, VULKAN & VOSS shall acquire joint ownership of the new Product in proportion to the value of VULKAN & VOSS’s Goods (purchase price plus VAT) to the other processed items at the time of production.
f) If the Goods provided by VULKAN & VOSS are inseparably combined or mixed with other items that are not the property of VULKAN & VOSS, VULKAN & VOSS shall acquire joint ownership to the new Product in proportion to the value of its reserved Goods (purchase price plus VAT) to the other combined or mixed items at the time of combination or mixing. If the combination or mixing is carried out in such a way that the supplier’s items may be considered the main item, it shall be agreed that the supplier shall assign proportional joint ownership to VULKAN & VOSS; the supplier shall store and hold in safe custody the sole property of VULKAN & VOSS or the joint ownership of VULKAN & VOSS in the name of VULKAN & VOSS.
a) The supplier shall undertake to treat in confidence all confidential information obtained directly or indirectly from the other party to the contract. Orders and all associated commercial and technical details are also to be treated as confidential information. In particular, all received illustrations, drawings, calculations, quality guidelines, samples and similar items are to be treated as confidential. The copying and forwarding of confidential information is only permissible within the context of operational requirements. Confidential information may only be disclosed to a third party with VULKAN & VOSS’s prior written consent.
b) The above obligations shall not apply to such confidential information as the supplier can prove
(i) was already generally accessible at the time of notification or was generally accessible thereafter through no fault of the supplier;
(ii) was already in the supplier’s possession at the time of notification;
(iii) was made accessible to the supplier by a third party without any obligation as to confidentiality and non-usage, provided that this third party has not obtained the information directly or indirectly from the supplier;
(iiii) was to be furnished to the authorities on the basis of legal regulations.
c) The supplier shall undertake to impose the same obligations to maintain secrecy on subcontractors. Confidential information made known to the supplier by VULKAN & VOSS shall be used exclusively for the intended purpose.
d) The obligation to maintain secrecy shall continue to apply for a period of three years after the delivery relations have ended. At the end of the delivery relations, the supplier shall undertake to return to VULKAN & VOSS all received confidential information if it is embodied or stored on electronic storage media. At VULKAN & VOSS’s request, the supplier shall confirm to VULKAN & VOSS in writing that it has fulfilled the obligation arising from the last two sentences.
15. Order Development
If the supplier carries out development work for production material or Means of Production (in particular tools) on VULKAN & VOSS’s behalf whose costs are reimbursed by VULKAN & VOSS either separately and/or by means of the price paid for the Products (order development), the following shall apply:
a) The supplier shall reach a development conclusion that is free from the Industrial Property Rights of any third party; Item 12 shall apply accordingly.
b) The proprietorship of all development results (including all discoveries, know-how, experiment and development reports, suggestions, ideas, drafts, designs, recommendations, samples, models etc.) achieved by the supplier in the context of the cooperation (hereafter ”Work Results”) shall fall to VULKAN & VOSS as it arises.
c) If the Work Results are protectable, VULKAN & VOSS shall, in particular, be entitled at its discretion to apply for Industrial Property Rights at home and abroad in its own name, to pursue this further and also to abandon it at any time.
d) The supplier shall claim the title of protectable inventions made by its employees in executing this contract in all cases by means of a declaration against the inventor; the right to the invention is to be assigned to VULKAN & VOSS immediately.
e) If the Work Results are protected by copyrights of the supplier, the supplier shall grant VULKAN & VOSS, as well as affiliated companies of VULKAN & VOSS, the exclusive, non-remunerable, irrevocable, sublicenceable, transferable right, unlimited in terms of time, place and content to use and exploit such Work Results as desired, in any manner and free of charge. If Work Results take the form of software the rights of use and utilisation shall not be restricted to the object code. VULKAN & VOSS shall in particular have a claim for the source code and documentation to be handed over. VULKAN & VOSS may demand the hand-over at any time, even during the implementation of the development project.
f) The supplier (as well as companies affiliated with it) is and shall remain the owner of inventions made before the start of the cooperation as well as Industrial Property Rights applied for or granted for them, as well as any copyrights, design rights and know-how existing before the start of the cooperation (hereafter ”Existing Property Rights”).
g) If Existing Property Rights are necessary for the utilisation or further development of development results, VULKAN & VOSS shall be granted their non-remunerable, non-exclusive, sub-licenceable, transferable and irrevocable right of utilisation unlimited in terms of time and place.
h) If, in the context of the services the supplier is required to perform, the supplier calls in subcontractor, the supplier shall undertake to ensure by means of suitable contractual agreements that VULKAN & VOSS is granted the property and utilisation rights accorded by the regulation expressed in this Item 15.
16. Cancellation/Rescission of Orders/Contracts
a) If one party to the contract stops payments or an application is made to open insolvency proceedings against the party’s assets, the other party shall be entitled to withdraw from the contract on account of the unfulfilled parts of the contract.
b) In the case of long-term contracts concerning the delivery of Goods the provisions in lit. c) – e) shall apply with regard to their validity period and termination.
c) VULKAN & VOSS shall be entitled to terminate such contracts in writing with a notice period of 6 months and the supplier with a notice period of 9 months.
d) In cases where the customer of VULKAN & VOSS cancels or amends its order extraordinarily or without cause, VULKAN & VOSS shall be entitled, notwithstanding its right to terminate the contract in accordance with Item 16 c), to agree mutually another arrangement with the supplier that takes account of these circumstances. Unless otherwise agreed the following degrees of bindingness shall then apply:
(i) The quantity determined for the month following the order (month 1) shall be deemed bindingly authorized.
(ii) The quantity ordered for the next month (month 2) shall entitle the supplier to procure feedstock. If this quantity is later not taken by VULKAN & VOSS, the supplier shall be entitled to invoice VULKAN & VOSS for the feedstock, whereby VULKAN & VOSS may demand delivery of the feed-stock. Quantities manufactured in excess of this and procured materials shall be exclusively at the supplier’s risk and to the supplier’s account.
e) Each party shall have the right to terminate a contract for good cause at any time without notice. The following cases in particular represent good cause:
(i) Cessation of payment on the part of one party, the opening of insolvency proceedings against the assets of one party or its rejection on the grounds of the absence of assets, or the liquidation of one of the parties;
(ii) Infringement of important contractual obligations; in the case of an infringement that can be remedied, however, only after the innocent party has called upon the other party in writing to remedy the infringement, has warned the party of the impending termination for good cause and has granted a reasonable period of grace of at least four weeks that has expired without outcome;
(iii) One party comes under the dominant control of one of the other party’s competitors on account of a change in its equity holders or shareholders.
f) In the case of the cancellation or other termination of a contract, the supplier shall return VULKAN & VOSS Property and VULKAN & VOSS Documents (cf. Item 13 b)) as well as all other items made available by VULKAN & VOSS, including all drawings and other documents, devices and tools.
17. Other Provisions
a) If one of the above provisions is or becomes invalid or unenforceable, the legal validity of the remaining provisions shall not be affected. In place of the invalid or unenforceable provision, a provision shall be deemed to have been agreed which comes as close as possible in legal terms to that which the parties to the contract required according to the original meaning and purpose of the ineffective or unenforceable provision. This shall also apply to any loopholes in the contract.
b) Without the prior written approval of VULKAN & VOSS the supplier shall not assign or transfer any order or the contract, either in whole or in part.
c) The supplier shall not employ one or more subcontractors to fulfil an order or part of an order without the prior written approval of VULKAN & VOSS.
d) This English language version of the General Terms and Conditions of Purchase of the German companies of the VULKAN & VOSS Group serves exclusively for the purposes of information and translation. In the event of any discrepancies between the terms of the German and the English language version, the German language version shall prevail in all cases.
18. Place of Performance, Applicable Law, Place of Jurisdiction
a) The place of performance for the supplier’s delivery obligations shall be the place of receipt or utilisation specified by VULKAN & VOSS. The place of performance for VULKAN & VOSS’s payment obligations shall be the head office of VULKAN & VOSS.
b) The law of the Federal Republic of Germany exclusively shall apply to this contract. The Vienna UN Convention on the International Sale of Goods (CISG) shall not apply.
c) The place of jurisdiction for all disputes arising from the business relationship between the parties to the contract shall be Bremen. VULKAN & VOSS shall furthermore have the right at its discretion to take action against the supplier at the latter’s general place of jurisdiction.