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General Purchasing Conditions

 

General Purchasing Conditions (GPC) of WHGCM

1.       SCOPE AND VALIDITY

1.1.     These General Purchasing Conditions ("GPC") shall govern the purchase of goods, deliverables provided under a con- tract for work and services (each "Deliver- ies") as well as services ("Services"; to- gether with the Deliveries the "Delivera- bles") from a supplier ("Supplier") by Weihai Global Chemical Machinery MFG Co.,Ltd ("WHGCM").

1.2.     Should WHGCM source from a Supplier De- liverables subject to these GPC, these GPC shall also apply to all future Deliverables that WHGCM receives from the Supplier. The most recent version of the GPC shall al- ways be applicable.

1.3.     In order for the GPC to apply, it is not nec- essary that they are referred to in the Con- tract.

 

2.      CONCLUSION OF THE CONTRACT AND ELEMENTS THEREOF

2.1.     Quotations of the Supplier shall be made free of charge.

2.2.     A contract ("Contract") shall be concluded as follows: by means of issuance of a writ- ten order by WHGCM to the Supplier or by means of mutual execution of a contrac- tual document. The specifications referred to in such documents shall be binding.

2.3.     Deviations from these GPC shall only be valid if they are expressly referred to as such in the order or in the Contract.

2.4.     General terms and conditions of the Sup- plier shall be expressly excluded, even if they are submitted by the Supplier with an order confirmation.

2.5.     Regarding the conditions of delivery, the transfer of risk and the allocation of addi- tional costs, the Incoterms (2010) indi- cated in the Contract shall be part thereof. Absent any other agreement to the con- trary, the rule DDP at the seat of WHGCM (Weihai, China) shall apply. In case of contradictions between the Contract and the applicable Incoterms or, as the case may be, the GPC and applicable Inco- terms, the Contract or, as the case may be, the GPC shall prevail.

2.6.     Acceptance of Deliverables, the placing of further orders, or any other actions by WHGCM in the scope of the commercial relationship shall not constitute tacit or implied acceptance of the Supplier's gen- eral terms and conditions.

 

3. CONDITIONS OF DELIVERY, TRANS- FER OF RISK AND ADDITIONAL OBLI- GATIONS

3.1.     Subject to an agreement to the contrary, Deliveries shall be governed by the agreed Incoterms (clause 2.5).

3.2.     WHGCM shall assume ownership at the time that the benefit and risk are transferred pursuant to the applicable Incoterms (clause 2.5).

3.3.     Deliveries shall be packaged properly and in accordance with the applicable regula- tions, and shipping documents including information as is customary in the busi- ness shall be enclosed to each Delivery (including order number, release number and WHGCM article number where applica- ble; all items shall be clearly designated or, as the case may be, identifiable).

3.4.     Deliveries shall be complete. The provision of any documentation relating to the goods or, as the case may be, Deliverables pursuant to clause 9 is required so that a Delivery or Deliverable is deemed to be complete. Over-, under- or partial Deliver- ies and Deliverables shall only be permit- ted with the consent of WHGCM.

3.5.     Services shall be documented in the com- mon form. If Services are to be invoiced on a time and material basis, such Ser- vices shall be reported with detailed infor- mation indicating person, date, content and duration of the respective Services.

 

4.  EMPLOYEES, SUBCONTRACTORS AND SUB-SUPPLIERS

4.1.     The Supplier shall employ only qualified employees and observe the legal provi- sions concerning the protection of employ- ees as well as social insurance law, tax law and immigration law.

4.2.     The involvement of subcontractors shall require the prior written consent of WHGCM. The Supplier shall be responsible for De-liverables provided by such subcontractor as it is for its own.

4.3.     Where WHGCM and the Supplier agree to specific sub-suppliers for Deliveries, these shall only be replaced by the Supplier with the prior written consent of WHGCM.

 

5.         DATES AND DEFAULT

5.1.     The Supplier shall provide the Deliverables pursuant to and in accordance with the agreed deadlines. It shall notice WHGCM without delay about potential delays.

5.2.     Should the Supplier fail to comply with a stipulated deadline including a calendar date, it shall – without notice – be in de- fault.

5.3.     Irrespective of the agreed Incoterms (clause 2.5), the date of arrival at the premises of WHGCM in accordance with the Contract, i.e. in particular including the  delivery of all relevant documentation (clause 3.4), shall constitute the delivery date.

5.4.     Should the Supplier be in default, WHGCM may assert the statutory rights of default. Furthermore, WHGCM may assert a contrac- tual  penalty in the amount of  1% per week (with a total maximum of 5%). Payment of the contractual penalty shall not release the Supplier from its obligations inS this clause. The claim for further damages by WHGCM shall be reserved.

6.         COOPERATION OF WHGCM

WHGCM shall create the conditions necessary for the Supplier to provide the Delivera- bles. Should WHGCM be late with respect to its cooperation obligation, the Supplier shall notice WHGCM in writing without delay. Creditor's default shall only apply after ex- piry of a scheduled, appropriate extension of time.

7.         ACCEPTANCE

7.1.     This clause 7 shall be applicable to any De- liverables of the Supplier (with the excep- tion of those Deliverables which are exclu- sively subject to the law governing man- dates).

7.2.     WHGCM will examine the Deliverables by the Supplier – in particular regarding the ac- cordance with agreed specifications – within a reasonable period of time. WHGCM shall notice the Supplier of complaints within a reasonable period of time.

7.3.     WHGCM shall be permitted to decline ac- ceptance also in case of the occurrence of a majority of non-substantial defects.

7.4.     An acceptance by WHGCM shall be necessary in any case, in particular also if WHGCM pro- visionally uses the defective Deliverables to avert further damages. The mere recep- tion of the Deliverables shall never consti- tute an acceptance. If the executed ac- ceptance is not notified to the Supplier by WHGCM and if WHGCM does not notice the Sup- plier of any complaint within a reasonable period of time, the respective Deliverables shall be considered to be accepted.

7.5.     In case of defects, WHGCM shall schedule a short extension of time to the Supplier to provide the Deliverable anew or, as the case may be, to effect subsequent perfor- mance. If the Supplier fails to do so or if WHGCM declines to accept anew, WHGCM may assert the statutory rights of default. In particular, WHGCM is permitted to withdraw from the Contract and claim damages.

8.    TOOLS AND DOCUMENTATION OF WHGCM

8.1.     Tools (including samples and models) as well as other documentation (e.g. plans and calculations) which WHGCM makes avail- able to the Supplier shall remain the prop- erty of WHGCM and shall be clearly identified as such by the Supplier. The same shall apply to tools and documentation that the Supplier manufactured or had manufac- tured on behalf of WHGCM and which WHGCM had paid for directly or indirectly (factored into the price for the Deliveries).

8.2.     If the Supplier is aware of defects of tools or other documentation, it shall notice WHGCM without delay.

8.3.     All intellectual property rights relating to tools or other documentation shall remain the exclusive property of WHGCM.

8.4.     Tools and documentation may only be used by the Supplier to carry out the or- ders of WHGCM. They are to be returned to WHGCM upon first request.

8.5.     The Supplier shall use tools with due care and shall maintain the tools at its own ex- pense. The Supplier bears the risk of loss or damage until the tools are returned to WHGCM.

9.         DOCUMENTATION

9.1.     The Supplier shall provide any relevant documentation concerning the Delivera- bles to WHGCM. This includes in particular the documentation that is necessary or was explicitly agreed for the usage as well as all certifications of any kind.

9.2.     The documentation shall be provided in English, at the free discretion of WHGCM at the time of the order.

 

10.      REMUNERATION AND INVOICING

10.1.   WHGCM shall pay the Supplier the remuner- ation as specified in the order. The remu- neration covers all delivery costs pursuant to the applicable Incoterms rules (clause 2.5) (e.g. freight costs, duties, insurance costs) and, subject to any agreement to the contrary, all other ancillary costs, packaging costs, expenses, social benefits for employees, and taxes and levies asso- ciated with the Deliverable. Value Added Tax (VAT) shall be exempted and disclosed separately (if applicable). 

10.2.   Subject to any agreement to the contrary, the Supplier shall be remunerated by WHGCM for legitimate invoices 

–     after complete Delivery and ac- ceptance or, as the case may be, pro- vision of the Deliverable and ac- ceptance (if an acceptance is applica- ble according to clause 7) 

–     after the provision of the Services

within a period of 60 days (strictly net) or, at the free discretion of WHGCM, within 30 days (with deduction of 2% as a cash dis- count) from the date of receipt of the Sup- plier's invoice by WHGCM.
10.3.   The payment of the invoice shall neither implicate an admission of the proper exe- cution, the acceptance or the absence of defects.

 

11.      CHANGES TO DELIVERABLES AND AD- DITIONAL SERVICES

11.1.   Changes to Deliverables and the ordering of additional Deliverables shall require an additional order or a change to the original order by WHGCM. The Supplier is obligated to notice WHGCM in writing of this require- ment prior to performance. If the Supplier fails to do so, no claim for remuneration will arise.

11.2.   Furthermore, a claim for compensation re- garding changes to Deliverables and addi- tional Deliverables is excluded if the changes or additions are only of minor na- ture and can be provided by the Supplier without significant costs.

11.3.   On request by WHGCM, changes to Delivera- bles and additional Deliverables shall be provided on the basis of the same condi- tions and price basis, provided that they are related to the purpose of the subject of the existing Contract. A significant change of the extent of the order or the market situation, which requires a new pricing, remains reserved. If a price reduc- tion can be achieved, WHGCM shall have the right to receive such reduction.

12.      INTELLECTUAL PROPERTY RIGHTS

All intellectual property rights relating to the Deliverables which are created or, as the case may be, provided in cooperation with WHGCM, shall be the sole property of WHGCM. The Supplier represents and war- rants that the employees and subcontrac- tors used by the Supplier have agreed to this assignment of rights.