General Purchase and Payment Conditions (GPPC), position: 09/2007
1. Applicability/conclusion of contract
Orders by Rheinbraun Brennstoff GmbH, Cologne, – hereinafter referred to as “Client” – are placed subject to these GPPC and also subject to any additional conditions which may be stated in the order.
Deviating terms and conditions of business of the Contractor shall still not be considered part of the contract even where, in individual cases, the Client does not expressly contradict them or where the delivery (goods/services) is accepted. Any confirmations made by the Contractor with reference to its terms and conditions of business are herewith contradicted.
Orders and agreements and amendments made in connection with such orders are only binding where in writing.
If the Contractor would like to commission third parties to provide the goods/services, this shall require the prior written consent of the Client. Correspondingly, this applies to the change of or the use of other subcontractors.
All business correspondence shall be conducted only with the ordering department.
Delivery and shipment must be co-ordinated between the Contractor and the scheduling department of the Client. Shipment instructions, in particular shipment addresses, must be observed in precise detail. Costs incurred due to non-compliance with the shipment instructions shall be for the account of the Contractor, unless the Contractor proves that it is not responsible for them.
Delivery notes, dispatch notes and other freight documents must be sent together with easily identifiable order details and/or scheduling data to the Client, the shipment address, and to any other addresses of recipients indicated in the order and/or scheduling record, and must be enclosed with the shipment.
The delivery times/deadlines of performance indicated in the order and/or scheduling record are binding. The Contractor undertakes to notify the Client immediately if circumstances occur or are identified which indicate that the delivery time agreed upon cannot be met.
Wherever an order contains prices, these are fixed prices. Where no prices are stated, the Client reserves the right to recognition of the prices calculated subsequently. Unless agreed otherwise in writing, prices are free delivered, including packing, duty and insurance up to the stated shipment address/place of use.
Any security and guarantees are covered by separate agreements, unless the Client can already demand same under established law.
6. Billing and payment
Unless a contractual agreement has been made to the contrary, a single copy of the invoice, incl any necessary vetting records, is to be sent to the invoice address indicated in the order within 10 calendar days after delivery/service provision, showing separately the VAT at the rate applicable at the time of delivery/service provision. Prepayments/progress payments made must be shown individually in the invoice. In any regular monthly delivery/service provision, invoices shall be produced and sent no later than the third working day of the following month. Partial invoices shall be specially marked.
All payments by the Client are subject to the following preconditions: 1) due and proper delivery, 2) receipt of invoice in due time and 3) receipt of evidence of quantities and quality wherever the latter form part of the scope of delivery.
Unless any other terms of payment have been agreed in the order, payment shall be 30 days from invoice date where the above preconditions have been met.
Payments are always made subject to adjustment in the event that objections should be made subsequently.
7. Assignment of receivables/setoff
Without prejudice to an assignment of any financial claim under section 354a of the German Commercial Code (HGB), the Contractor is not entitled to assign receivables from the Client to third parties or to have them collected by third parties, unless the Client has given its prior written consent.
The Client is entitled to offset receivables, which the Client owes to the Contractor, against receivables which the Contractor owes to other companies affiliated with RWE AG in accordance with sections 15 ff of the German Stock Corporation Act (AktG). In addition, the Client is entitled to offset any receivables which any of the above-mentioned companies owe to the Contractor against the receivables which the Contractor owes to the Client.
Upon delivery, the goods become the property of the Client; this is without prejudice to simple retention of title in favour of the Contractor.
Processing, e.g. washing or packaging, is carried out by the Contractor on behalf of the Client. In the event that goods for which the Client has reserved ownership are processed together with other objects not belonging to the Client, the Client shall acquire joint ownership of the new object pro rata the purchase value plus VAT of the property of the Client relative to the other objects processed at the time of processing. In the event that goods for which the Client has reserved ownership are processed together with other objects not belonging to the Client, the Client shall acquire joint ownership of the new object pro rata the purchase value plus VAT of the property of the Client relative to the other objects processed at the time of processing. This last point applies accordingly for mixing and combining, unless another object which does not belong to the Client is considered to be the principal object.
Risk passes to the Client upon the arrival of the goods at the receiving plant or at the receiving point specified by the Client or, in the case of deliveries with acceptance at the receiving plant or receiving point, upon acceptance of the delivered items, regardless of when they arrived. In the case of collection, risk passes to the Client as soon as the items leave the premises of the Contractor.
The Client has at all times the right to obtain information about the status of contractual performance, in particular about the contractually agreed and orderly progress of manufacture in the operational facilities of the Contractor or the upstream supplier.
The Client has full recourse to statutory warranty claims. The Contractor accepts a statutory warranty period of 24 months covering any defects in the goods/service; this period begins with the delivery. However, this provision shall only apply where, due to the contract or statutory regulations, no longer warranty or limitation periods apply. The above warranty period shall be followed by a six-month term during which the Client and the Contractor can agree on any previously unsettled defect notification or seek a decision from third parties, e.g. a court.
Any faults or defects occurring during the warranty period – e.g. due to execution not in compliance with the contract, substandard materials, or non-compliance with statutory regulations or recognized engineering standards – must either be remedied by the Contractor at its own expense or replaced by a new delivery executed in compliance with the contract, at the discretion of the Client.
If the Contractor fails to remedy the faults and defects of its delivery/service provision in response to the Client’s first complaint within the reasonable deadline set, the Client shall be entitled, without further notice or setting of a period of grace, to remedy them itself or have them remedied by third parties, and to deduct the expenses incurred from the Contractor’s invoice or to charge these to the Contractor’s account.
In those cases in which subsequent performance fails, the Client is entitled to rescission or price reduction; this is without prejudice to claims for damages, in particular claims for damages instead of performance.
The Contractor shall, at its expense, take out reasonable public-liability insurance which covers such processing damage/loss and provide the Client with evidence upon demand. The liability insurance shall not fall below the minimum amount of €10m per insured event as lump sum for personal injury/property damage and financial loss.
The Contractor shall be liable for any breach of duty and the resulting damage unless the Contractor proves that it is not responsible for such breach of duty. The Contractor is further obliged to release the Client from any claims for damages by third parties submitted to the Client by such third parties for reasons based on defective delivery (goods/services) by the Contractor, unless the Contractor can prove to the Client that the Contractor is not responsible for the circumstances that caused the loss. The foregoing provisions shall also apply if the Contractor employs a servant or vicarious agent.
The Client shall be entitled – subject to a notification period of 3 working days counting from the order – to cancel the order, either wholly or in part, for a time determined by it. In the event of cancellation, the Contractor may charge the Client the costs incurred until notification of the cancellation upon submission of evidence. Any claim beyond this, e.g. for reimbursement of any collateral or consequential damage/loss and lost profit, shall be excluded.
However, where termination is for good cause where the Contractor is at fault, the latter shall only receive that part of the remuneration that corresponds to the delivery/service provision so far carried out and usable by the Client in proportion to the overall delivery/service provision. Any further claim to remuneration by the Contractor is excluded in this case. The Contractor shall be liable for compensation for loss incurred by the Client as a result of the termination, including any consequential loss.
The Client has an extraordinary right of termination wherever the Contractor infringes its duties to provide information as regards its delivery/service provision under Art. 12, specifically with regard to safety, health or environmental aspects. In such a case, the Contractor shall not be entitled to remuneration as defined in paras. 1 and 2. The Contractor shall indemnify the Client against any third-party claims for whatever legal reason based on any breach of this duty.
The Client may terminate the contract without observing deadlines if the Contractor suspends its deliveries, or insolvency proceedings concerning the Contractor’s assets are filed or opened.
12. Safety stipulations/duties to provide information
In the course of execution and implementation of the contract, the Contractor is obliged to observe the applicable provisions and recognized engineering standards, especially with regard to industrial health and safety, as well as the provisions applicable under construction, trade and traffic laws (in particular, supervisory and traffic safety duties on delivery sites); this shall also apply to the applicable environmental protection regulations. The deliveries/services must comply with the laws, regulations and directives prevailing at the time of performance.
The Contractor shall notify the Client in advance specifically of any transportation, vehicles, transport routes and the location of the various systems or storage sites.
The Contractor shall supply the Client with all technical documentation as regards the goods, specifically technical data sheets, product safety data sheets, analyses, works and/or test certificates, conformity certificates and any further supporting documentation, viz. at the agreed time, though no later than upon delivery of the goods.
Before the Contractor submits a quote or a cost estimate, it shall obtain any information as regards the Client's requirements and the goods' likely application, so that the Contractor can provide the Client with any necessary advice and information about the goods offered.
The Contractor shall provide the Client with all important information that is associated with the goods in the areas of safety, industrial safety or the environment and/or with their further processing, handling or use. For this purpose, the Contractor shall seek information from the Client regarding any special features (configuration, activities, transportation and traffic, etc) at the delivery site concerned.
13. Data protection
The Client is entitled to collect, process and use the data arising in connection with the contractual relationship in accordance with the Federal Data Protection Law (BDSG) as amended, and to pass this data on to companies affiliated with RWE AG within the meaning of sections 15 ff of the German Stock Corporation Act (AktG).
Without prior written consent by the Client, the Contractor is not entitled to use information concerning intended or existing contractual cooperation for reference or marketing purposes.
15. Severability Clause
Should any provision of these General Purchase and Payment Conditions be or become void, ineffective and/or unenforceable, – wholly or in part – this shall not affect the validity of the remaining provisions.
16. Place of performance/jurisdiction/choice of law
Place of performance for deliveries provided by the Contractor is the shipment address/place of use indicated by the Client.
Unless otherwise expressly provided by law, the place of jurisdiction for any disputes arising under or in connection with the contract is Cologne.
The laws of the Federal Republic of Germany shall apply exclusively. Application of international private law and the UN Convention on Contracts for the International Sale of Goods is excluded.
Position: September 2007