1. validity
Our offers, deliveries and other services are provided exclusively on the basis of the following terms and conditions. These terms and conditions are recognized by placing an order or accepting a delivery. They shall also apply to all future business relations, even if they are not expressly agreed again.
Our terms of delivery and payment, to which our customer declares his agreement when placing the order, shall apply exclusively, and this shall also apply to future transactions, even if no express reference is made to them, but they have been received by the customer with an order confirmed by us. If the order is placed in deviation from our Terms and Conditions of Delivery and Payment, only our Terms and Conditions of Delivery and Payment shall apply, even if we do not object. Deviations shall therefore only apply if they have been expressly recognized by us in writing.
We are entitled to assign the claims arising from our business relationships.
The following supplements only apply to claims that have been assigned to VR Factoring GmbH. These invoices are marked with a corresponding assignment note.
All payments shall be made with debt-discharging effect exclusively to VR Factoring GmbH, Hauptstraße 131 – 137, 65760 Eschborn, to which we have assigned our present and future claims arising from our business relationship. We have also transferred our reserved property to VR Factoring GmbH.
In order to fulfill our factoring agreement (assignment of our receivables and transfer of debtor management), we will forward the following data to the financial services institution VR Factoring:
– Names and addresses of our debtors
– Data on our receivables from our debtors (in particular gross amount and due date)
– If applicable, names of contact persons and contact details of our debtors (telephone number, e-mail address) at their company for reconciliation of accounts receivable accounting
2. conclusion of contract
Drawings, illustrations, weights, quantities and other measurements contained in or attached to the offer are only approximate values.
Contracts between the buyer and us as the seller shall only come into effect upon our written order confirmation. Our written order confirmation is decisive for the content of the contract.
Amendments and supplements to the contract require our written confirmation to be effective.
All offer documents provided to the buyer (including calculation and cost estimates) remain our property. They may not be reproduced, passed on or made accessible to third parties without our consent.
3. deliveries
The stated delivery dates shall always be deemed to have been agreed as approximate. An agreed delivery period shall commence upon receipt of the order confirmation by the Buyer, but not before the documents, approvals, releases and information to be procured by the Buyer for the execution of the order in accordance with the agreement have been provided and an agreed down payment has been received.
The delivery deadline shall be deemed to have been met if the Buyer is notified that the delivery is ready for dispatch or handover by the end of the agreed delivery deadline.
Delays in delivery due to force majeure, strikes, unforeseeable operational disruptions, delays in delivery by upstream suppliers, transportation bottlenecks, shortages of raw materials, official measures and other circumstances for which we are not responsible justify reasonable changes to the delivery dates and deadlines. In the event of any delay in delivery, the Buyer shall be entitled to refuse acceptance of the delayed deliveries after expiry of a reasonable grace period to be set by him in writing, which must be at least two weeks.
Beyond this, the buyer is not entitled to any claims against us in the aforementioned cases.
In the event of delay in performance or impossibility of delivery, any claims for damages to which the buyer may be entitled shall be limited to the extent that compensation can only be demanded for foreseeable damage. The above limitation of liability shall not apply if the reason for the delay in performance or the impossibility of performance is due to intent or gross negligence on the part of one of our legal representatives or one of our vicarious agents.
4. shipment and transfer of risk
Unless expressly agreed otherwise in the order confirmation, all deliveries are made at the risk of the buyer.
The transfer of risk in the goods to the Buyer shall take place when the delivery is handed over at the Seller’s works to the forwarding agent, carrier or other person commissioned to carry out the shipment.
We may select the means of packaging and transportation as well as the type of shipment to the exclusion of any liability, unless the buyer specifies this in good time before expiry of the delivery period. Insurance of any kind for shipment, packaging, storage, etc. shall only be taken out at the express request of the buyer and at his expense.
5. terms of payment
All prices stated in our offers and letters of confirmation are net prices plus any statutory value added tax applicable under German law. Costs for packaging, insurance, freight and other ancillary costs incurred when exporting and importing the goods, such as export bonus, export tax. Customs duties and other charges or surcharges shall be borne by the Buyer.
The invoice amount must be paid within 30 days of the invoice date without deduction, unless otherwise agreed in writing.
Bills of exchange shall only be accepted on the basis of a special agreement. Unless otherwise agreed in writing, the acceptance of checks or bills of exchange shall not be deemed payment until they have been honored.
The customer shall be in default if he has not paid the invoice amount without deduction within the agreed period. The crediting of the invoice amount to our account shall be decisive. From the time of default, we shall be entitled to charge interest at a rate of 8% above the applicable prime rate. We reserve the right to claim demonstrably higher interest damages. In addition, in the event of default of payment, the costs associated with extrajudicial and/or judicial collection of the claim shall be paid by the buyer. If the buyer defaults on payment of an invoice, all our outstanding claims, including any claims arising from bills of exchange, shall become due immediately, irrespective of the agreed payment date. In this case, we shall also be entitled to refuse performance until all outstanding invoices have been settled, to withdraw from the contract or to demand advance payments or the provision of security. This shall also apply if we become aware of circumstances which are likely to call into question the creditworthiness of the purchaser, e.g. in the event of bills of exchange and checks not being honored or other payment arrears.
Offsetting by the customer with counterclaims is excluded unless the counterclaims are undisputed or have been legally established. The assertion of a right of retention by the customer is excluded unless it is based on the same contractual relationship or the counterclaims are undisputed or have been legally established.
6. reservation of title
The following applies to deliveries of goods:
The delivered goods remain our property until full payment of all outstanding claims to which we are entitled against the customer. The customer is entitled to resell the goods in the ordinary course of business as long as he is not in default of payment. However, the customer may not pledge the reserved goods or assign them by way of security. The customer hereby assigns to us by way of security the customer’s claims for payment against his customers arising from the resale of the goods subject to retention of title as well as those claims of the customer in respect of the goods subject to retention of title which arise for any other legal reason (including against third parties).
Any processing or transformation of the reserved goods by the customer shall always be carried out on our behalf. If the reserved goods are processed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (invoice amounts incl. VAT) to the other combined or mixed items at the time of combination or mixing.
If the customer’s item is to be regarded as the main item, the customer shall transfer co-ownership of this item to us on a pro rata basis. We accept the transfer.
The customer shall hold the resulting sole ownership or co-ownership of an item for us.
The buyer must always keep the reserved goods fully insured against the usual risks and provide evidence of this on request. The buyer hereby assigns any insurance claims to us and we accept this assignment.
The buyer is entitled to collect the claims assigned to us until revoked. The assignment or pledging of these claims is only permitted with our written consent.
If the buyer is in default of payment or fails to meet his obligations arising from the retention of title, we may set a reasonable deadline for performance or subsequent performance. After unsuccessful expiry of this period, we shall be entitled to withdraw from the contract and take back the delivered goods. For this purpose, the customer must send us a precise list of the reserved goods still in his possession, separate out the goods and hand them over to us.
Following a warning with a reasonable period of notice, the items may be used in the best possible way by private sale, taking into account the price charged to the buyer. Furthermore, in this case he shall, at our request, notify the debtors of the claims assigned to us of the assignment in writing, provide us with the information required to assert our rights, submit and send us documents and surrender bills of exchange.
The Buyer shall notify us immediately in writing of any access by third parties to the reserved goods or the claims assigned to us, e.g. by way of seizure, and shall use suitable means to defend against such access.
We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 20%; we shall be responsible for selecting the securities to be released.
It is not necessary to withdraw from the contract in order to assert the rights arising from retention of title, unless the customer is a consumer.
7 Complaints and warranty
The Buyer shall inspect the goods thoroughly upon receipt to ensure that they are complete and in perfect condition; all defects that become apparent during this inspection, including incorrect deliveries or shortages, must be reported to the Seller in writing immediately, but no later than 7 days after receipt of the goods. Defects that are not immediately recognizable must be reported in writing immediately after their discovery, but at the latest within 3 days of their discovery. In the case of defective deliveries, we shall be obliged to provide subsequent performance, whereby we shall decide whether subsequent performance is to take the form of rectification or replacement. The buyer is obliged to accept the supplementary performance. If the supplementary performance has failed or is unreasonable, the buyer is entitled, at his discretion, to withdraw from the contract or to demand a reasonable reduction in the purchase price. Subsequent performance shall be deemed to have failed after the second unsuccessful attempt at subsequent performance. Subsequent performance is unreasonable for us in particular if it is only possible at disproportionate cost.
Warranty claims are excluded if the buyer has resold or further processed the goods after he had discovered or should have discovered the defect, unless he can prove that the sale or processing was necessary to prevent greater damage.
The Seller has the right to make excess or short deliveries of up to 10% without this constituting a defect within the meaning of these Terms and Conditions of Delivery. The Seller reserves the right to make dimensional deviations in accordance with the GKV inspection and evaluation clause.
All contractual claims against us shall lapse one year after delivery of the goods, unless otherwise agreed. The limitation period of one year does not apply to damages resulting from injury to life, body or health which are based on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent.
In the event of a merely negligent breach of duty by us or by our executive bodies and vicarious agents, our liability shall be limited to the foreseeable, typically occurring damage.
Our goods are labeled and described in the manner customary in the trade. We provide processing documents, advice and recommendations to the best of our knowledge and belief. However, we do not accept any liability for the suitability of the goods for the purpose intended by the purchaser, as the diversity of processing and the demands of use cannot be overlooked by us in detail.
8. copyright
All drawing and printing plate costs shall be borne by the Buyer. The Seller shall only be liable for any infringement of patents, designs, designations and similar rights resulting from the Buyer’s order if the Seller is at fault.
Proofs must be checked by the purchaser for typesetting and other errors and returned to us ready for printing. Changes made by telephone require written confirmation.
The manuscripts, originals, printed matter etc. handed over to us by the buyer shall be stored at the buyer’s risk. Print media, printed matter, etc., which are the property of third parties, shall be stored at the buyer’s risk. The buyer is responsible for taking out appropriate insurance.
9. export
The customer is responsible for observing and implementing the relevant foreign trade regulations and other laws of the country to which the goods are to be delivered. The customer must inform us of any special features arising from these regulations. The customer shall be liable to us for any damage incurred by us as a result of failure to comply with the statutory regulations. Irrespective of this regulation, the customer must obtain any necessary import and export licenses himself.
10. data protection
We would like to point out that the personal data of customers obtained in the course of the business relationship is stored by us in accordance with the provisions of the Federal Data Protection Act (§§ 27 ff. BDSG).
VR Factoring will pass on the company data of the debtors to credit agencies and commercial credit insurers as well as to processors (IT data processing, printing service providers, etc.).
Further details on data processing can be found in VR Factoring GmbH’s “Data Protection Statement”, which you can view and download online at http://www.vr-factoring.de/datenschutz.
11 Place of performance, place of jurisdiction and applicable law
The place of jurisdiction is, at our discretion, the registered office of the company or Frankfurt am Main.
The contractual relationship shall be governed exclusively by German law, in particular the German Civil Code and the German Commercial Code. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
1. general
1.1 These Terms and Conditions of Purchase are an integral part of all (including future) contracts for the delivery of goods or the provision of services between the supplier of goods or service provider (hereinafter “Contractor”) and EMPAC GmbH or its affiliated companies based in Germany (hereinafter “Client”), unless and insofar as otherwise agreed in the individual contract. The Contractor’s terms and conditions of business shall only apply if and insofar as the Client agrees to them in writing and with express reference to the Contractor’s terms and conditions of business. In particular, the mere reference to a letter from the Contractor containing or referring to its terms and conditions shall not constitute the Client’s consent to the validity of those terms and conditions.
1.2 These Terms and Conditions of Purchase shall also apply if the Client accepts the delivery I service without reservation in the knowledge that the Contractor’s terms and conditions conflict with or deviate from these Terms and Conditions of Purchase.
2. offer
2.1 Offers and cost estimates of the Contractor shall be made free of charge and shall not create any obligations for the Client.
2.2 In its offer, the Contractor shall expressly point out any deviations from the Client’s inquiry and offer the Client additional solutions that are technically or economically more favorable compared to the inquiry.
3. delivery date, partial deliveries I partial services
3.1 The Contractor shall comply with the deadlines agreed for the deliveries and services. Compliance with the delivery date in the case of deliveries of goods shall be determined by the handover of the defect-free goods to the Client during normal business hours with the necessary shipping documents at the location specified in the order (hereinafter “place of delivery”). If a delivery with assembly I service has been agreed between the Contractor and the Client, the handover of the defect-free goods after proper execution of the assembly I service shall be decisive for the timeliness of the delivery. If acceptance is provided for by law or contractually agreed, the time of acceptance shall be decisive. Premature deliveries I services or partial deliveries I partial services require the prior consent of the client.
3.2 If the Contractor realizes that it will not be able to fulfill its contractual obligations in whole or in part or not on time, it must inform the Client of this immediately in writing, stating the reasons and the expected duration of the delay. The unconditional acceptance of a delayed (partial) delivery I (partial) service shall not constitute a waiver of the Client’s rights with regard to the untimely (partial) delivery I (partial) service.
3.3 The Contractor shall be obliged to request any documents to be provided by the Client for the execution of the order in good time.
4. sustainability
4.1 The Client shall be guided by the principle of sustainable development and observe internationally recognized, fundamental standards for occupational safety, health and environmental protection, labor and human rights and responsible corporate governance. In addition, the client shall request the contractor to encourage its subcontractors and sub-suppliers to comply with corresponding standards.
4.2 When performing the contract, the Contractor shall comply with the occupational safety, health and environmental protection requirements specified in the Client’s order.
5. quality
5.1 The Contractor shall implement and maintain an effective quality assurance system and provide evidence thereof to the Client upon request. At the Client’s request, the Contractor shall apply a quality management system in accordance with ISO 9000 ff. or equivalent. The Client shall be entitled to inspect this quality assurance system itself or through third parties commissioned by the Client.
5.2 Changes to the object of delivery or service require the prior written approval of the client.
6. audits during the execution of the contract
6.1 The Client has the right to inspect the performance of the contract by the Contractor. For this purpose, the Client shall be entitled to enter the Contractor’s premises during normal operating hours after prior notification and to inspect the facilities and equipment relevant to the performance of the contract. The Contractor and the Client shall each bear the expenses incurred by them as a result of the inspection.
6.2 The contractual or statutory rights of the client shall not be affected by such inspections.
7. use of subcontractors
The use of third parties for the fulfillment of the contract (in particular subcontractors of any degree) or their replacement requires the prior written consent of the client. If the Contractor intends to use third parties in the performance of the contract from the outset, the Contractor must inform the Client of this in its offer.
8. shipment, packaging, transfer of risk
8.1 Unless otherwise agreed, the delivery of goods shall be made DAP (INCOTERMS 2010) to the place of delivery. Unless otherwise agreed, the delivery must be accompanied by the delivery bill in duplicate, packing slips, cleaning certificates and test certificates in accordance with the agreed specifications and other necessary documents. The order number, gross and net weight, number of packages and type of packaging (disposable I reusable), date of completion, place of delivery (unloading point) and recipient of the goods and, in the case of projects, the project name must be listed in full in all shipping documents and – in the case of packaged goods – on the outer packaging, if known.
8.2 In the case of deliveries to third countries (imports), the shipping documents must indicate whether the goods are duty paid or duty unpaid. In the case of duty unpaid goods, the Contractor must submit the following customs clearance documents to the Client:
Shipping documents (e.g. T 1), freight documents, customs or commercial invoice, proof of preference such as Form A, EUR.1, A.TR., certificate of origin and any other documents required for customs clearance. The contractor shall ensure that the information for the April 2012 customs pre-declaration procedure is complete, correct and available in good time at the office obliged to submit the pre-declaration. In the case of duty-paid goods, the proof of customs clearance (e.g. ATC number, tax assessment number) must be noted in the freight documents.
8.3 The Contractor is obliged to inform the Client in detail and in writing of any authorization requirements for (re-)exports in accordance with the respective national export and customs regulations as well as the export and customs regulations of the country of origin of the goods and services.
8.4 The Contractor shall carefully protect the interests of the Client during shipment. The goods shall be packed in such a way that damage in transit is avoided. The Contractor shall be liable for damage resulting from improper packaging. At the Client’s request, the Contractor shall collect all outer packaging, transport packaging and sales packaging from the place of destination or have it collected by a third party. The Contractor shall pack, label and ship hazardous products in accordance with the relevant national and international regulations. The Contractor shall fulfill all obligations incumbent on the supplier (within the meaning of Article 3 No. 32 EC Regulation 1907/2006/EC (hereinafter “REACH Regulation”)) in accordance with the REACH Regulation with regard to the delivery of the goods. In particular, the Supplier shall provide the Client with a safety data sheet in accordance with Article 31 of the REACH Regulation in the language of the recipient country in all cases prescribed in Article 31(1) to (3) of the REACH Regulation.
8.5 The Contractor shall bear the risk of loss or damage until the actual handover of the contractual goods, including the documents referred to in Clauses 8.1 and 8.2, at the place of delivery. If a delivery with installation I assembly I service has been agreed, the transfer of risk shall take place after proper execution of the installation I assembly I service and handover. If acceptance is provided for by law or contractually agreed, the date of acceptance shall be determined jointly at the written request of the Contractor. The result of the acceptance shall be recorded in an acceptance report. The transfer of risk shall not take place before confirmation of successful acceptance by the Client in the acceptance report. Acceptance cannot take place in any other way, in particular not through tests, expert opinions, certificates or proof of work. The payment of invoice amounts does not constitute acceptance. General Terms and Conditions of Purchase of EMPAC GmbH
9. origin of goods
9.1 The Contractor shall state the non-preferential origin of the goods (country of origin) in commercial documents and shall provide a certificate of origin on the origin of the goods at the request of the Client.
9.2 The goods must meet the conditions of origin of the bilateral or multilateral preferential agreements or the unilateral conditions of origin of the Generalized System of Preferences for Beneficiary Countries (GSP), insofar as deliveries are involved within the scope of these goods transactions.
10. quality of the delivery I service, notice of defects, rights in the event of defects
10.1 The Contractor shall be responsible for the deliveries and services being free of defects, in particular for compliance with the agreed product and service specifications, as well as for the existence of contractually guaranteed properties and characteristics. The Contractor also warrants that the goods and services are state of the art and – where relevant – comply with the generally recognized state of the art in safety technology, occupational medicine and hygiene, are provided by qualified personnel and comply with all relevant legal provisions. If machines, devices or systems are the subject of the delivery, they must meet the requirements of the special safety regulations for machines, devices and systems applicable at the time of fulfillment of the contract and have a CE mark.
10.2 The Contractor guarantees that all substances contained in the goods have been effectively pre-registered, registered (or exempted from registration) and, if applicable, authorized in accordance with the relevant requirements of the REACH Regulation for the uses notified by the Client. If the goods are articles within the meaning of Article 7 of the REACH Regulation, the preceding sentence shall apply with regard to substances released from these articles. In addition, the Contractor shall inform the Client immediately if a substance in a component of an article is released in a concentration of more than 0.1
percent by mass (w/w) that meets the criteria of Articles 57 and 59 of the REACH Regulation (so-called substances of very high concern). This also applies to packaging products.
10.3 The Client shall notify the Contractor of obvious defects within fourteen (14) days of receipt of the goods at the place of delivery. Defects that only become apparent later shall be notified by the Client within fourteen (14) days of discovery. The date of dispatch of the notification to the Contractor shall be decisive for compliance with the deadline. In this respect, the Contractor waives the objection of late notification of defects.
10.4 In the event of defects, the client shall be entitled to demand subsequent performance in accordance with the statutory provisions. The choice of the type of subsequent performance lies with the Client. For subsequent performance, the goods shall be made available to the Contractor at the place of delivery or at the place where the goods are located when the defect is discovered, at the Client’s discretion. The Contractor shall bear the expenses required for subsequent performance. The Contractor shall take into account the Client’s operational requirements when carrying out the supplementary performance. If the supplementary performance has not taken place within a reasonable period of time, if it has failed or if the setting of a deadline was dispensable, the Client may assert the further statutory rights in the event of defects.
10.5 If the Contractor does not properly fulfill its obligation to provide subsequent performance – without justifiably refusing subsequent performance – or if the Contractor seriously and finally refuses subsequent performance, or if subsequent performance has failed, or if a loss of use is to be feared or if the elimination of the defect cannot be delayed for other reasons, the Client shall be entitled to eliminate the defect itself or have it eliminated by third parties at the expense and risk of the Contractor and to demand the elimination of the defect from the Contractor.
Contractor to demand reimbursement of the necessary expenses. In all other respects, the statutory provisions shall apply.
Further rights of the client arising from liability for defects or guarantees remain unaffected.
10.6 Claims for defects shall become time-barred thirty (30) months after the transfer of risk, unless a longer statutory period applies. A waiver of claims for defects on the part of the Client shall only be effective if it is expressly declared in writing.
11. infringement of industrial property rights
The Contractor warrants that the delivery and I or service and its contractual use do not infringe any patent rights, copyrights or other industrial property rights of third parties. Without prejudice to statutory claims, the Contractor shall indemnify the Client against all third-party claims asserted against the Client for infringement of the aforementioned property rights. License fees, expenses and costs incurred by the Client for the avoidance and elimination of infringements of property rights shall be borne by the Contractor.
12. contractual penalty
If a contractual penalty has been agreed, the client may still assert this until the final payment without this requiring a reservation pursuant to Section 341 (3) BGB.
13. insurances
The Contractor shall maintain sufficient liability insurance at its own expense for damages for which it and its vicarious agents and assistants are responsible. Proof of the amount of cover per loss event must be provided to the client on request. The Contractor’s contractual and statutory liability shall remain unaffected by the scope and amount of its insurance cover.
14 Invoice, payment
14.1 The agreed prices are net prices plus any statutory value added tax. The Contractor shall comply with the statutory requirements for invoices under the VAT law of the countries to whose VAT law the invoiced deliveries I services are subject. When using the credit note procedure, the Contractor shall provide the Client with all data necessary to meet the aforementioned requirements of the applicable VAT law.
14.2 The Contractor shall issue one invoice per order. The invoice shall state the Client’s complete order number and, if available, the Contractor’s delivery note number. Proof of performance and other supporting documents must be attached to the invoice. Invoices must correspond to the details in the order with regard to the description of goods, price, quantity, sequence of items and item number. The invoice must be sent to the invoice address stated in the Client’s order.
14.3 Unless otherwise agreed, payment periods shall run from the date of receipt of invoices that meet the aforementioned requirements or, if the credit note procedure is used, from the date on which the credit note is issued. Payment shall be made subject to the delivery I service being found to be correct.
14.4 Payment does not constitute acceptance of conditions and prices and does not affect the Client’s rights due to improper delivery of goods or services, the Client’s rights of inspection or the right to object to an invoice for other reasons.
15. transfer of orders, assignment, company change, offsetting, retention
15.1 The Contractor may only transfer the rights and obligations arising from the contract with the Client to third parties with the prior written consent of the Client.
15.2 The Contractor shall notify the Client in writing without delay of any transfer of contract occurring by operation of law and of any change to its company name.
15.3 The Contractor shall only be entitled to offset undisputed or legally established claims. The Contractor shall only be entitled to a right of retention if the claim for which the right of retention is asserted originates from the same contractual relationship.
16 Termination, withdrawal
16.1 The contract may be terminated without notice for good cause. Good cause shall be deemed to exist in particular if
– the Contractor commits a material breach of duty and fails to remedy the situation within a reasonable period set by the Client after receipt of the written complaint, or the other contracting party has suffered a material deterioration in its financial position which jeopardizes the performance of the contract or the other contracting party fails to meet its obligation to pay taxes or social security contributions, or
– the purchase, the use of the goods or the service is or becomes wholly or partially inadmissible due to statutory or official regulations.
If the Client terminates a contract for good cause and it is unreasonable for the Client to adhere to other existing contracts with the Contractor for the same good cause, the Client may also terminate other contracts existing at the time of termination and not yet fulfilled against pro rata remuneration for the service already rendered. The Contractor shall not be entitled to any further claims for damages, reimbursement of expenses or remuneration in the aforementioned case. General Terms and Conditions of Purchase of EMPAC GmbH
16.2 If the Contractor has obtained documents, records, plans and drawings from the Client within the scope of the contract or for the purpose of its execution, it must hand these over to the Client immediately in the event of termination.
This applies accordingly in the event of withdrawal from the contract.
17. obligations of the contractor to vacate the premises upon termination of the contract
In the event of termination of the contract, for whatever reason, the Contractor shall immediately arrange for the dismantling and removal of its systems, tools and equipment, which it may have installed or stored on the Client’s premises for the performance of the contract, at its own expense. Any waste and building rubble caused by the Contractor’s work must also be removed immediately by the Contractor at its own expense and disposed of properly. If the Contractor fails to comply with these obligations, the Client may, after the fruitless expiry of a reasonable period, carry out the work itself or commission a third party and invoice the Contractor for the costs incurred.
18 Documents, confidentiality, rights of use
18.1 The Contractor must provide the Client with the agreed number of plans, calculations or other documents owed in good time so that the contractual execution deadlines can be met.
18.2 The review of the documents by the Client shall not affect the Contractor’s responsibility.
18.3 Models, samples, drawings, data, materials and other documents provided by the Client to the Contractor (hereinafter referred to as “Client Documents”) shall remain the property of the Client and must be returned to the Client at any time upon request by the Client. The Contractor shall have no right of retention to the Client Documents. The Contractor shall observe the Client’s copyrights to the Client Documents.
18.4 Subject to statutory, judicial or official disclosure obligations, the Contractor undertakes to keep secret all technical, scientific, commercial and other information that the Contractor obtains directly or indirectly under the contract, in particular the Client Documents (hereinafter “Confidential Information”), not to exploit it commercially, not to make it the subject of industrial property rights, not to pass it on to third parties or make it accessible to third parties in any other way and not to use it for any purpose other than the performance of the contract. The aforementioned confidentiality obligation shall apply for a period of 10 years after termination of the contract. The only exceptions to this confidentiality obligation are information which is already lawfully in the possession of the Contractor at the time it is made available by the Client, is legally in the public domain or has been lawfully obtained from third parties. Also excluded from this confidentiality obligation is information disclosed to persons who are subject to a statutory duty of confidentiality, whereby the Contractor undertakes not to release these persons from this duty of confidentiality. The Contractor shall bear the burden of proof for the existence of this exception. The Contractor shall ensure by means of suitable contractual agreements that its employees and vicarious agents affected by this confidentiality agreement are also obliged to maintain confidentiality in accordance with the provisions of these Terms and Conditions of Purchase. The Contractor shall provide the Client with written proof of compliance with these obligations upon request. The Contractor undertakes to take all necessary and appropriate precautions and measures to ensure that the Confidential Information obtained is effectively protected against loss and unauthorized access at all times. This includes in particular the creation and maintenance of suitable and necessary access and access precautions for premises, containers, IT systems, data carriers and other information carriers in or on which Confidential Information is located, as well as the implementation of suitable instructions for the persons who are authorized to handle Confidential Information in accordance with this clause. The Contractor undertakes to notify the Client immediately in writing if the Contractor suffers a loss and I or unauthorized access by I to Confidential Information.
18.5 The obligation to maintain the confidentiality of commercially sensitive information within the meaning of the Energy Industry Act and the obligation to disclose information without discrimination that may bring economic benefits within the meaning of the Energy Industry Act shall remain unaffected by the above provisions.
18.6 The Contractor shall grant the Client the right to use and exploit all plans, drawings, graphics, calculations and other documents relating to the contract, which the Contractor has either produced itself or had produced by third parties (hereinafter referred to as “work products”) in all known media forms including electronic media, the Internet and online media, on all image, sound and data carriers, without any restrictions in terms of location, content or time. In particular, the Client shall have the right to exploit, reproduce, distribute, modify and further develop such work results in whole or in part, to have the aforementioned activities carried out by third parties and to grant third parties the same full rights of use and exploitation of such work results, including any modifications and further developments made in the meantime. The Contractor shall grant the Client the right to use and exploit the work results to the extent described above, including for types of use unknown at the time the order is placed; the statutory provisions shall apply in this respect. In the case of the procurement of licenses and results from intellectual services, in particular studies, specifications, requirement and functional specifications, specific development and adaptation of software, the Client shall also receive an exclusive, irrevocable right to use the service results at the Client, at EMPAC GmbH Emsdetten, and at the affiliated companies.
19. retention of documents and assistance with audits
During the statutory retention period – but for at least three (3) years, beginning with the acceptance or delivery – the Client shall have the right to inspect all documents relating to the delivery or provision of services during normal business hours and to make copies or transcripts for its own disposal. The Contractor undertakes to provide support during inspections. Insofar as the documents contain confidential data of the Contractor, such as information about its internal calculations, agreements or information about business partners and employees that is subject to confidentiality, the Client’s right of inspection is excluded.
20. advertising ban, severability clause, applicable law, place of jurisdiction
20.1 The Contractor may only refer to the existing business relationship with the prior written consent of the Client.
20.2 The invalidity or unenforceability of a provision or parts of a provision of the contract shall have no effect on the existence and continuation of the respective contract.
20.3 The contract is subject to the substantive law of the Federal Republic of Germany.
20.4 The place of jurisdiction shall be, at the Client’s discretion, either the court having subject-matter jurisdiction for the Client’s registered office or the court having jurisdiction in accordance with the applicable general statutory provisions.
January 2013
