General Conditions of Purchase of the Helmholtz-Zentrum für Umweltforschung GmbH - UFZ (Helmholtz Centre for Environmental Research - UFZ)
[Version dated 22.07.15]
- The General Conditions of Purchase of the Helmholtz-Zentrum für Umweltforschung GmbH - UFZ apply to all contracts awarded by UFZ for supplies and services, unless an agreement to the contrary has been made in writing between UFZ and the supplier (hereafter referred to as AN).
- By submitting an offer, confirming an assignment and acceptance or execution of a purchase order, the AN acknowledges these General Conditions of Purchase of UFZ.
- The AN´s General Terms and Conditions or any conditions which differ from these General Conditions of Purchase of UFZ or those conditions in the purchase order of UFZ shall apply only if and to the extent that they have been expressly acknowledged by UFZ in writing. Otherwise the AN´s General Terms and Conditions are excluded, even if the AN makes reference to it in its offer or in the contract confirmation.
- In the event that individual provisions of these General Conditions of Purchase are inapplicable, the remaining provisions shall be unaffected.
- The order number, reference and date of the letter from UFZ must be quoted in all correspondence.
- As a public research institute, UFZ is subject to the principle of public sector self-insurance.
2. Offer, purchase order, assignment confirmation
- The offer must be submitted free of charge. Offers referring to an order value of 500 € and more must be submitted in writing and free of charge.
- In its offer, the AN must adhere to the inquiry or to the specifications desired by UFZ as regards quantity, quality and execution. In the event of any deviation, an express reference must be made to this. If the AN has any doubts regarding the type of execution desired by UFZ, the AN must immediately notify UFZ of this in writing.
- The contract takes effect upon acceptance of the AN´s offer in the form of a purchase order. In order to be legally binding, this purchase order must be made in writing. Verbal agreements shall apply only if they are confirmed in writing by UFZ.
- The agreed prices shall be fixed prices plus VAT. The goods shall be delivered free of charge to the point of use laid down in the purchase order, including packaging.
- UFZ is obliged to observe Regulation PR 30/53 on prices in public contracts dated 21.11.1953 in the version valid at the time along with the pricing principles on a total-cost basis (Leitsätze für die Preisermittlung auf Grund von Selbstkosten - LSP).
4. Obligations of the AN
- The AN ensures the careful, punctual and proper performance of the contract. In particular, the AN ensures that the goods supplied are free from defects; that the specifications desired by UFZ and other performance requirements of UFZ are complied with in line with the agreed state of knowledge and/or technology; that the quantity, quality and expediency of the goods supplied regarding materials, construction and execution are adhered to as well as any related documentation (such as drawings, plans, etc) is included. The technical parameters and general data notified by the AN to UFZ shall be deemed to be contractually agreed.
- The AN ensures that all goods supplied to UFZ are under its full ownership and that there are no conflicting third-party rights over them.
- In the course of performing the contract, the AN shall undertake to observe all relevant statutory and official regulations and requirements. The goods supplied or services rendered must comply with the safety, labour protection, accident protection and any other requirements as well as all relevant standards (DIN, VDE). Any safety measures or protective facilities required under these rules must be provided by the AN within the agreed price.
- The AN undertakes to include the corresponding and currently valid DIN safety data sheets and a general analysis to any deliveries that are subject to the German Ordinance on Hazardous Substances.
- The AN shall take back all types of packaging free of charge.
5. Delivery deadlines/delay
Delivery must take place on the date stipulated in UFZ's purchase order. Once the delivery date has passed, the AN shall be in default without any requirement for a reminder. In the event that delays are to be expected, the AN must immediately notify this in writing, giving the reasons and likely duration. In order to be effective, changes to the delivery date must be confirmed in writing by UFZ.
The AN must execute all of the contractual obligations itself. The AN may award subcontracts only with the written approval of UFZ. The approval shall be granted only under the condition that the AN will impose corresponding obligations on the subcontractor as those the AN is bound to itself under this contract and that the subcontractor is also actually observing these obligations. The AN must ensure that the conditions of the subcontracts do not contradict the valid rules and conditions arising from this contract.
7. Right of consultation and audit
UFZ and its agents or representatives shall be entitled to request information from the AN regarding the contractual performance of the delivery, to participate in internal audits or to carry out audits themselves. Any costs for repeat audits carried out by UFZ as a result of deficits observed in previous audits shall be borne in full by the AN.
8. Changes to the contract, assignment of claim
- UFZ may require subsequent modifications to the agreed condition of the goods to be supplied or services to be rendered in the course of the AN´s technical capabilities. Any technical modifications and their effects on the price, delivery time or other conditions must be made in writing pursuant to section 2.3 of these General Conditions of Purchase.
- Any claims against the UFZ assigned by the AN to a third party shall only become legally effective with the prior written approval of UFZ.
9. Shipping and customs duty
- An original dispatch note shall be attached to each individual delivery. For deliveries from foreign customs jurisdiction, the AN shall liaise with UFZ ahead of time regarding customs and import procedures.
- For import transactions, at least the condition "delivered duty-paid" (DAP under INCOTERMS 2010, ICC publication no. 715 ED) is agreed.
- Upon request, the AN shall be obliged to provide necessary information about the intra-community trade statistics such as commodity code, net mass, dimensions, transport itinerary etc.
- Acceptance by UFZ may take place only following the complete and deficit-free delivery of goods or service provision by the AN. Partial acceptance shall be permissible only if this has been agreed separately. Acceptance must be made in writing.
- If a trial operation has been agreed, acceptance shall be confirmed by means of a joint acceptance protocol following a faultless trial run.
- All documents necessary for acceptance, operation, maintenance and repair (test reports, factory certificates, drawings, plans, instructions etc) must be included by the AN in the delivery free of charge.
- § 377 of the German Commercial Code (HGB) shall be excluded to the extent that there are no obvious defects.
11. Ownership status
- Any component parts or materials made available by UFZ shall be labelled as such by the AN and stored separately, referred to and managed as such. If material orders are processed, it is agreed that UFZ is the manufacturer in the meaning of § 950 paragraph 1 of the German Civil Code (BGB). The AN shall hold the UFZ’s property in safe custody free of charge.
- Property and intangible rights over documents belonging to UFZ and entrusted to the AN shall remain with UFZ. Documents belonging to UFZ may be used only for the purposes laid down in the framework of the contract and may not be passed on to third parties. Upon request, these documents, copies and duplications thereof must be immediately destroyed or returned to UFZ. In the event of any infringements concerning the obligation to return or destruction, the AN shall be liable for the entire damage resulting from infringement.
12. Invoice and payment
- Invoices must be submitted to UFZ by e-mail to firstname.lastname@example.org or by post. VAT must be listed separately. Payment and discount periods shall run from receipt of invoice. Payment shall be deemed to have been made when the bank transfer instruction is received by UFZ's executing financial institution. Payment shall not be construed as a confirmation of fulfilment of the contractual obligations of the AN.
- Advance payments shall be made only if these have been agreed in writing and are secured by an absolute bank guarantee.
- UFZ shall only be in default after receipt of a reminder, § 286 paragraph 3 of the German Civil Code (BGB) does not apply.
- Claims referring to compensation for work shall only become due after acceptance.
13. Rights of the purchaser in the event of defects
- In the case of purchase agreements for new items or work performance contractsfor items produced or created, the statutory limitation of claims arising from faults and defetcs shall be two years. In the event of purchase agreements for second-hand items, the statutory limitation of claims arising from faults and defects shall be one year. § 438 of the German Civil Code (BGB) shall also apply. In the event of work performance contracts, UFZ's right to lodge claims for faults and defects shall expire pursuant to § 634a of the German Civil Code (BGB). As regards the commencement of these time periods, the statutory provisions shall apply. Any regulations to the contrary must be made in writing.
- The costs to be borne by the AN for remedying faults and defects shall also cover expenditure for packaging, freight and transport, the time taken for dismantling and installing and travel costs.
- For spare parts supplied and improvement work, the quality agreed for the original parts shall apply. For these parts, UFZ has the rights laid down in § 437 of the German Civil Code (BGB). The statutory limitation of claims for faults and defects shall commence with confirmation of rectification of these faults and defects by UFZ. The statutory limitation of claims for faults and defects shall be extended to the period during which the goods supplied or services rendered are not in the contractually agreed conditions.
- The rights of UFZ pursuant to § 437 of the German Civil Code (BGB) may also be enforced after expiration of the statutory limitation , provided that the fault or defects in question had been reported before the statutory limitation expired.
- UFZ excludes its liability for contractual breaches caused by slight fault or ordinary negligence, if these breaches do not relate to material contractual obligations, damages for injury to life, limb or health or guarantees or claims under the Product Liability Act. The same shall apply to breaches of obligation on the part of any vicarious agents of UFZ. As regards possible claims for indemnification which may exist under §§ 478, 479 of the German Civil Code (BGB), UFZ is entitled to settle them by assigning the indemnification claims for the same reason to the AN, the claims to be assigned are equivalent to those asserted against the UFZ. Several ANs shall thus become liable collectively in their capacity as co-debtors. Liability for lost profit/loss of production or financial losses and liability for indirect damages are excluded. Furthermore, liability shall be limited to the damages which can typically be expected in business transactions of this kind.
- The AN ensures that the execution of the contract or the delivery and use of the goods supplied or service rendered will not infringe any industrial property rights of third parties . The AN shall indemnify and hold harmless UFZ against any third-party claims arising as a result of any infringements of industrial property rights.
15. Intellectual property rights and rights of use
The work results shall be the property of UFZ and shall belong to UFZ for unrestricted use. All work results, whether or not these are protectable, shall be made available to UFZ by the AN on the agreed delivery date. If the work results or parts thereof are protected by copyright, UFZ shall be granted an irrevocable, royalty-free, exclusive transferable right to duplicate, disseminate, process and in any other way to use and exploit these. If, in the framework of the contract, there is the possibility that inventions will be created, this must be immediately notified to UFZ in writing. The German Employee Inventions Act (ArbnErfG) shall also apply.
16. Advertising materials
The AN may refer to its business relationship with UFZ in its advertising material only with the express agreement of the latter.
17. Termination and withdrawal
Irrespective of any other termination and withdrawal rights or rights to claims for compensation, UFZ is entitled to terminate the agreement or to withdraw from it, in particular in the event of actions on the part of the AN in the meaning of § 333 of the German Criminal Code (StGB) (granting an advantage) or § 334 of the German Criminal Code (StGB) (corruption). Additionally, UFZ can demand compensation for damages from the AN. Furthermore, UFZ may withdraw from the contract or terminate it for good reason, particularly if insolvency proceedings or judicial settlement proceedings are opened against the assets of the AN or the AN ceases its services on anything other than a temporary basis.
18. Place of execution and court of jurisdiction
The place of execution for the AN shall be the place of business of the Helmholtz-Zentrum für Umweltforschung GmbH - UFZ in Leipzig or any other point of use designated by UFZ. The court of jurisdiction shall be Leipzig. German law shall apply. The UN sales convention (CISG) shall not apply.