General terms and conditions
STANDARD TERMS AND CONDITIONS OF SALE OF THE COMPANY ASPE-TEC
1.1 These standard terms and conditions apply exclusively to the purchase or order of products or goods from the ASPE-TEC (hereinafter referred to as ASPE-TEC), unless they are amended with the express written consent of both parties. These conditions apply even if ASPE-TEC receives deliveries of goods from the seller and the seller has conflicting conditions of sale that do not form the object of the contract.
1.2 Any agreement between the seller and ASPE-TEC is only legally valid when agreed in writing by both parties. Any additional terms and conditions or contractual clauses introduced by the seller will be considered as rejected unless ASPE-TEC agrees to the additional provisions in writing.
1.3 These terms and conditions will form the basis of all future individual contracts between ASPE-TEC and the seller – with the exclusion of conflicting general contractual terms and conditions.
1.4 ASPE-TEC places orders solely on the basis of its own order terms and conditions; ASPE-TEC does not recognize conflicting, deviating or additional terms and conditions of the seller, unless ASPE-TEC has expressly agreed to their validity in writing. Tacit acceptance of the seller’s deliveries or services or payments by ASPE-TEC does not imply acceptance of conflicting, deviating or additional terms and conditions of the seller.
1.5 Supply contracts or call-off orders and any other legal transactions concluded between ASPE-TEC and the seller as well as any additions or changes to such documents must be in writing. Orders and the aforementioned legal transactions may take place via remote data transmission (RDT), insofar as this is customary practice between the parties. Otherwise, these General Terms and Conditions of Purchase only apply to companies within the meaning of Section 310 Paragraph 1 BGB (German Civil Code).
2. Conclusion of the Contract
2.1 A contract of sale is only considered to be concluded when ASPE-TEC has made a written declaration of acceptance after receipt of an offer and within the period of validity of the offer.
2.2 Dimensions and weights, quantities, prices, other descriptions and other data as stated in catalogues, circulars, advertisements or price lists are only approximate and are not binding upon ASPE-TEC unless explicitly included in the contract. ASPE-TEC reserves ownership rights and copyrights to such data, as well as to illustrations, drawings, calculations and other documents; they may not be made available to third parties without ASPE-TEC’s express written consent. They are to be used exclusively for the purpose of producing ASPE-TEC’s order; after completion of the order they must be returned to ASPE-TEC unprompted. They must not be disclosed or given to third parties.
2.3 ASPE-TEC is entitled, within reason, to request changes to the design and execution of the item to be delivered. The consequences of such changes, in particular increased or reduced costs or changed delivery dates, must be determined appropriately by both parties. Any changes made by the seller require ASPE-TEC’s prior written approval.
2.4 The seller must send ASPE-TEC a written order confirmation within 10 working days after the order date. If the seller does not fulfill this obligation, ASPE-TEC is entitled to cancel the order without giving reasons.
2.5 If insolvency proceedings or other judicial or extrajudicial proceedings are opened against the assets of the seller, ASPE-TEC is entitled to withdraw from any part of the contract that has not yet been fulfilled without giving reasons.
3. Purchase Price
3.1 The price stated in the order is binding and is based on the “delivered duty paid” arrangement.
3.2 The agreed purchase price includes free delivery to premises including packaging, cargo insurance taken out by the seller and statutory VAT, which is listed separately on invoices.
3.3 Invoices can only be processed if they meet the invoice specifications in the order and include the order number stated there; the supplier is responsible for all consequences arising from non-compliance with this obligation unless the supplier can prove that it is not responsible.
3.4 The seller must send written notification of any price reductions and credit them to ASPE-TEC. If ASPE-TEC has already performed its service it can reclaim it, whereby the seller waives the right to make any objections or pleas of any kind.
4. Terms and Conditions of Payment
4.1 Payment and delivery must be made in the manner agreed by the parties in each individual case. If no payment method is agreed in an individual case, payment must be made within 30 days after delivery and receipt of the invoice for a 3% discount, or within 60 days at the full price. Payment deadlines for early deliveries are based on the actually agreed delivery date.
4.2 All payments made by ASPE-TEC are expressly subject to proper delivery on the part of the seller and to correct calculations and pricing in the invoice.
4.3 We are entitled to offset or hold back the amount due to the extent permitted by law.
5. Delivery Terms and Conditions
5.1 Delivery must take place on the delivery date specified in the sales contract or order.
5.2 The seller must notify ASPE-TEC immediately in writing if delivery will be delayed.
5.3 ASPE-TEC’s shipping instructions must be followed; in particular, all shipping documents, letters and invoices must include ASPE-TEC’s order and item numbers.
5.4 If the seller makes a delivery before the agreed delivery date, it bears all associated costs, including for storage by ASPE-TEC. If ASPE-TEC is unable to accept the early delivery, it is entitled to refuse to accept it.
5.5 If the seller is late with delivery, ASPE-TEC is entitled to demand in writing delay compensation to cover any additional costs incurred (e.g. for transport, insurance, storage); however this cannot be more than 10% of the total contract value.
5.6 A contractual penalty for delayed delivery may be agreed between the parties for individual contracts. Explicit reference is hereby made to Point 7.3 of this agreement.
5.7 Any of the seller’s agents and workers and other representatives who carry out work at ASPE-TEC’s factory premises for the purpose of fulfilling the object of the contract are obliged to observe ASPE-TEC’s current work regulations. Liability for accidents that befall the aforementioned persons at ASPE-TEC’s factory premises is excluded as long as such accidents are not caused by an intentional or grossly negligent breach of duty by the legal representatives of ASPE-TEC or their agents and workers.
6. Transfer of Risk
6.1 Unless otherwise specified in the individual supply contract, the time of transfer of risk is determined in accordance with the Incoterms of the International Chamber of Commerce (Incoterms 2010).
6.2 If there is no agreement regarding the transfer of risk, the “Delivered Duty Paid” (Incoterms 2010) clause applies.
7.1 Subject to §377 HGB (German Commercial Code), ASPE-TEC is entitled to inspect the delivery immediately upon receipt for any obvious or visible defects and to accept it only after inspection. The seller bears the costs of any justified complaints and of the delivery of replacements.
7.2 The dimensions, weights and quantities ascertained during the incoming goods inspection are binding upon both contracting parties. In the event of significant deviation, ASPE-TEC will notify the seller within 14 days after the incoming goods inspection.
7.3 ASPE-TEC reserves the right to claim an individually agreed contractual penalty even when such claim is not expressly asserted upon acceptance of the delivery.
8. Warranty for Defects
8.1 The seller warrants that the goods delivered are free of defects, have the promised characteristics and meet ASPE-TEC’s requirements.
8.2 ASPE-TEC must inspect the goods for any deviations in quality or quantity within a reasonable period of time; complaints must be sent to the contractor in writing without delay as soon as problems are identified in the normal course of business. The contractor waives the right to object to delayed notification of defects.
8.3 ASPE-TEC is entitled to statutory claims for defects without restriction; ASPE-TEC is always entitled to demand either remedy of defects or delivery of a new item from the supplier at its discretion. ASPE-TEC expressly reserves the right to claim damage compensation, in particular the right to claim damage compensation in lieu of performance.
8.4 ASPE-TEC is entitled to remedy defects itself at the supplier’s expense if the supplier is late with rectification.
• All replacement deliveries or repairs are also covered by the warranty for defects as set out in the General Terms and Conditions of Purchase.
• The seller is liable without restriction for transportation, travel and labour costs for replacement deliveries, repairs and rectifications to the same extent as for the original delivery item.
• The seller agrees to indemnify ASPE-TEC against third-party claims that a third party may have against ASPE-TEC due to product liability and that arise from a defect or error in the delivered product. This indemnification also explicitly applies to reasonable costs associated with a recall. In that regard, the seller commits to have appropriate product liability insurance.
• If, following the test procedure specified in the order, ASPE-TEC determines that the maximum permissible number of defects has been exceeded, ASPE-TEC is entitled to assert claims for defects in respect of the entire delivery or to inspect the entire delivery for defects and errors at the seller’s expense.
8.5 The statute of limitation is 36 months from the transfer of risk, unless the mandatory provision of Sections 445b, 478 Paragraph 2 BGB intervenes.
8.6 Other mandatory provisions of delivery recourse remain unaffected.
8.7 No Violation of Legal Norms
The seller warrants that the performance of individual purchase contracts will not result in any legal violations, in particular with regard to compliance with laws, regulations or other provisions of any official authority.
8.8 Warranty for Defects of Title
The seller warrants that all objects subject to purchase contracts are in its full ownership and that there are no conflicting third-party rights (such as liens, other creditors’ rights based on the assignment of claims or other credit securities, sale of claims, hire purchase, conditional sale, etc.).
9. Product Liability – Indeminifcation – Third Party Liability Insurance Coverage
9.1 Insofar as the supplier is responsible for product damage, the supplier must indemnify ASPE-TEC against any third-party claims upon first request to the extent that the cause is within the scope of the supplier’s control and organisation and the supplier is liable to third parties.
9.2 Within the context of the supplier’s liability for claims in the sense of paragraph (1), the supplier must also reimburse any costs arising from or associated with a recall initiated by ASPE-TEC in accordance with Sections 683, 670 BGB or Sections 830, 840, 426 BGB. ASPE-TEC will – as far as possible and reasonable – inform the supplier in advance of the content and scope of any such recall and give the supplier the opportunity to make comments.
9.3 ASPE-TEC is responsible for providing the relevant competent authority with the necessary information in accordance with the regulations of the German Product Safety Act and in coordination with the supplier.
9.4 The supplier commits to take out and provide evidence of a public liability insurance policy that covers damages due to extended product liability as well as recall costs, with coverage of €10 million – lump sum – per personal injury/property damage incident for the duration of this contract, i.e. until the expiry of the statute of limitations for defects; if ASPE-TEC is entitled to any other claims for damages, these remain unaffected.
10. Retention of Title – Provision – Tools – Confidentiality
10.1 If ASPE-TEC provides parts to the supplier, ASPE-TEC reserves ownership of the parts. Any processing or remodeling carried out by the supplier is done on ASPE-TEC’s behalf. If the goods subject to retention of title are processed together with other objects not belonging to ASPE-TEC, ASPE-TEC acquires joint ownership of the new item in proportion with the value of the item belonging to ASPE-TEC (purchase price plus VAT) compared to the value of the other processed objects at the time of processing.
10.2 If the item provided by ASPE-TEC is irreversibly combined with other objects not belonging to ASPE-TEC, ASPE-TEC acquires joint ownership of the new item in proportion with the value of the item subject to retention of title (purchase price plus VAT) compared to the value of the other combined objects at the time of combination. If the combination takes place in such a way that the supplier’s item is regarded as the principal item, the supplier hereby agrees to transfer joint ownership to ASPE-TEC in proportion with the value of the item provided; the supplier holds the sole or joint ownership for us.
10.3 ASPE-TEC reserves ownership of tools; the supplier must use the tools exclusively for the production of the goods ordered by ASPE-TEC. The supplier must also, at its own expense, insure the tools belonging to ASPE-TEC at their replacement value against fire, water damage and theft. The supplier simultaneously assigns all claims for compensation under this insurance policy to ASPE-TEC and ASPE-TEC hereby accepts the assignment. The supplier must carry out any required maintenance and inspection work and all repairs of ASPE-TEC’s tools at its own expense and in a timely manner. The supplier must notify ASPE-TEC of any malfunctions immediately. If the supplier culpably fails to do so, damage claims remain unaffected.
10.4 If the security rights arising from paragraph (1) and/or paragraph (2) exceed the purchase price of all unpaid goods subject to retention of title by ASPE-TEC by more than 10%, ASPE-TEC must release the security rights of its choice at the supplier’s request.
10.5 The supplier must keep all illustrations, drawings, calculations, and other documents and information strictly confidential. They may only be disclosed to third parties with the express consent of ASPE-TEC. This confidentiality obligation remains valid after the fulfilment of this contract. However, it expires if and to the extent that the manufacturing know-how contained in the illustrations, drawings, calculations and other documents provided becomes generally known, or the supplier was demonstrably already aware of it at the time it was shared in the sense of clause 1.
11. Property Rights
11.1 The supplier warrants that no third-party rights within the Federal Republic of Germany and Hong kong are infringed upon in connection with or due to the delivery.
11.2 If ASPE-TEC is held liable by a third party for rights infringement, the supplier must indemnify ASPE-TEC against such claims upon first written request.
11.3 In the event of third-party damage claims, the supplier is entitled to prove that it is not to blame for the infringement of the rights of the third party. ASPE-TEC is not entitled to enter into any agreements with third parties without the supplier’s consent, and in particular to agree on a settlement.
11.4 The supplier’s obligation to indemnify ASPE-TEC applies to all unavoidable expenses arising from or in connection with the third-party claim, unless the supplier proves that it is not responsible for the breach of duty underlying the breach of property rights.
11.5 The statute of limitations for such claims is three years, starting from the transfer of risk.
12. Place of Jurisdiction, Place of Performance
12.1 If the contractual partner is a merchant, the place of jurisdiction is the registered office of ASPE-TEC in Hong Kong.
12.2 ASPE-TEC is, however, also entitled to sue the contractual partner at its general place of jurisdiction.
12.3 Unless otherwise stated in the order, the place of fulfillment and performance is ASPE-TEC’s registered office or the delivery address.
12.4 Hong Kong law applies to the exclusion of CISG.
13.1 In the event that force majeure in accordance with Clause 2 renders a contracting party unable to fulfill its obligations, it is released from those obligations. The other contracting party will be released from its counter-performance obligations to the extent that and for as long as the first contracting party is prevented from fulfilling its obligations by force majeure.
13.2 Force majeure is an unforeseeable external event which cannot be averted at all or cannot be averted in good time even when taking reasonably expected care and using technically and economically reasonable methods. Such events include in particular natural disasters, terrorist attacks, power outages, telecommunications failures, strikes and lockouts – insofar as the lockout is legal – or legal provisions or measures enforced by the government or courts or authorities (irrespective of their legality).
13.3 The affected contractual partner must notify the other contractual partner immediately and provide information regarding the reasons for and expected duration of the force majeure. The affected contractual partner must endeavour to ensure that it can fulfill its obligations again as quickly as possible using all technically and economically reasonable means.
13.4 The contracting parties shall cooperate as much as possible in the rectification of errors and malfunctions.
14.1 This agreement replaces all previous verbal or written agreements between the parties regarding these business areas; previous agreements become invalid upon the signing of these General Terms and Conditions of Purchase.
14.2 The rights to this relationship may not be assigned by either party without the prior written consent of the other party.
14.3 Each party bears its own costs incurred in connection with the performance of this contract.
14.4 Requests, orders, order confirmations and any other correspondence from ASPE-TEC to the seller may not be used for promotional purposes. This does not apply if ASPE-TEC has given prior written consent to the promotional use and the form of the promotional material has been presented clearly by the seller and approved in writing by ASPE-TEC.
15. Severability Clause
15.1 Should individual provisions of this agreement be wholly or partly invalid or void, or should they become wholly or partly invalid or void due to a change in legislation or the adjudication of a supreme court or otherwise, or should this agreement prove to contain loopholes, the parties agree that the other provisions of this agreement will remain unaffected and valid.
15.2 In such cases, the parties undertake, in good faith , to replace the invalid provision with a valid one which comes as close as possible to the meaning and purpose of the invalid provision, whereby it can be assumed that the parties would have agreed such a provision at the time of conclusion of the agreement if they had known or foreseen the invalidity or nullity of the original provision. The same applies if this agreement contains a loophole.
Updated: April 2019