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Purchasing Terms

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General Terms and Conditions of Purchase and Special Work Contract Terms and Conditions of the Companies of the DORMA Group

The terms and conditions m/b are valid for purchase orders which are placed in Germany. For international versions of the purchasing terms and conditions please follow this link and choose your respective country.


A.    General terms and conditions of purchase

1.    Scope of application

(1)    These terms and conditions of purchase form part of all purchase orders issued by DORMA Deutschland GmbH, DORMA Platz 1, D-58256 Ennepetal, Germany, and companies affiliated to it pursuant to Section 15 et seq. of the German Stock Corporation Act [Aktiengesetz], with head offices in Germany (hereinafter referred to as DORMA (Group)), and shall apply exclusively.
(2)    Contrary or additional terms and conditions issued by the contractual partner (hereinafter referred to as Supplier) shall not be admitted. They shall only apply in the event that DORMA expressly declares its consent in writing with them or with parts of them.
(3)    These terms and conditions of purchase shall also apply in the event that DORMA unconditionally accepts goods or services from Supplier in the knowledge of contradictory or divergent terms and conditions of Supplier, or has paid for such goods and services.
(4)    These terms and conditions of purchase shall also apply to all contractual relationships governing any future business relationship, even if not expressly agreed on such occasion.
(5)    In the event that special written supply contracts and/or quality assurance covenants or other regulations deviating from these terms and conditions of purchase are agreed between Supplier and DORMA, these present terms and conditions of purchase shall apply as subordinate and supplemental regulations.


2.    Conclusion of contract

(1)    DORMA will send a written purchase order to Supplier. This requirement for a written form is also satisfied in the event of delivery by electronic data transmission. Incidental verbal agreements relating to the purchase order shall only be binding if they are confirmed in writing by DORMA. This also applies to subsequent changes or additions.
(2)    The purchase order shall be regarded as having been accepted unless Supplier objects within two days of receipt.
(3)    If Supplier accepts the purchase order subject to certain changes, these changes must be specifically indicated. The amended purchase order shall then be regarded as a new offer. In addition, Supplier is obliged to notify DORMA in writing of items in the purchase order that are at variance with earlier contractual conditions or catalogue data. A contract shall only be deemed concluded once DORMA has accepted the changed items in writing.
(4)    The award of subcontracts shall only be permitted subject to prior written consent by DORMA.


3.    Compliance with statutory regulations / Notice of concern

(1)    Supplier undertakes to comply with the latest state of the art, science and technology, and to comply with applicable laws, statutes, directives and official regulations. Moreover, Supplier shall not engage either actively or passively, directly or indirectly in any form of bribery or corruption, the violation of the fundamental rights of its employees, or child labor. Supplier is responsible for the health and safety of its employees and is required to comply with relevant environmental protection statutes.
(2)    Supplier shall establish a quality management system compliant with ISO 9001, and maintain same, unless this is ruled unreasonable. The products of Supplier must be manufactured and tested in accordance with the precepts of this quality management system. DORMA shall be entitled to scrutinize compliance with the quality management system precepts by Supplier in its production facilities after prior written notification and during normal business hours. Supplier undertakes – where reasonable – to establish and maintain an environmental management system in accordance with ISO 14001.
(3)    The goods and services of Supplier must be provided in compliance with EU Directive 2011/65/EC governing the restriction of use of hazardous substances (“RoHS”) in electrical and electronic equipment, and with EU Regulation 2006/1907/EC (“REACH”). Supplier shall only deliver products, which do not contain any tin, tungsten, tantalum or gold extracted in the Congo or neighboring countries (hereinafter referred to as the DRC-region).
(4)    In the event that the relevant laws, statutes, regulations or the state of the art, science and technology should change between conclusion of the contract and execution of same, Supplier shall notify DORMA immediately of any influence said change may have on contract performance and, in particular, the associated scheduling and cost consequences. DORMA will decide within a reasonable period on whether or not to accept the change. In the event of approval, the parties shall agree upon a mutually acceptable costing arrangement on the basis of the purchase order, and amend the contract accordingly in writing. In the event that DORMA should not accept the change, both parties shall be entitled to terminate the contract.


4.    Terms and conditions of delivery

(1)    Unless otherwise agreed, deliveries shall be made on a delivered duty-paid (DDP) basis (Incoterms 2010) to the destination designated by DORMA, and shall include packaging and incidental costs.
(2)    Each consignment shall be accompanied by a delivery note in duplicate. The delivery note must contain the purchase order, article and Supplier numbers/codes. If Supplier does not indicate the purchase order, article or Supplier numbers/codes, delays in order processing shall not be attributable to DORMA.
(3)    Prior to dispatch of the goods, DORMA shall be notified in writing of the value, weight and also the date of shipment.
(4)    In the event that Supplier is required to provide material specimens, test and inspection records, quality documents or other information, delivery and performance of the order shall only be deemed complete with handover of these items.
(5)    Supplier is obliged to supply 100% defect-free goods. DORMA is not obliged to accept partial or additional deliveries that have not been contractually agreed upon. The same applies if the goods are delivered before an agreed date. Under certain circumstances, DORMA will be entitled to return the goods, or to have them stored by third parties, at the cost and risk of Supplier.
(6)    If, as a result of non-compliant supply of the contractual goods or services, DORMA should incur costs, particularly transportation, travel, work-related or material costs, or receiving inspection costs beyond those usually encountered, Supplier shall be required to bear these costs.
(7)    Unless otherwise agreed, if Supplier is responsible for installation or assembly, Supplier shall bear all the requisite incidental costs (e.g. travel costs) and shall provide free of charge the tools and equipment required.
(8)    In the event that DORMA is entitled to claim compensation for noncompliance, Supplier shall pay to DORMA a lump-sum compensation amount of €50.00 for time and effort spent. DORMA shall remain entitled to make further claims. Supplier is likewise at liberty to submit a counterclaim that DORMA did not incur such cost in time and effort, or that such cost was less than claimed.
(9)    If a consignment is wholly or partially noncompliant, and if DORMA therefore has to perform rework on the goods concerned, or sort the noncompliant goods from the compliant goods, Supplier shall pay to DORMA a lump-sum compensation amount of €50.00 per employee and full hour worked. DORMA shall remain entitled to make further claims. Supplier is likewise at liberty to submit a counterclaim that DORMA did not incur such cost in time and effort, or that such cost was less than claimed.
(10)    If a consignment from Supplier is wholly or entirely noncompliant and if, as a result, DORMA’s production is brought to a standstill for more than two hours, Supplier shall pay to DORMA a lump-sum compensation amount of €100.00 per employee and full hour worked. DORMA shall remain entitled to make further claims. Supplier is likewise at liberty to submit a counterclaim that DORMA did not incur such cost in time and effort, or that such cost was less than claimed.
(11)    If a consignment from Supplier is wholly or partially noncompliant, and if DORMA therefore has to carry out a service visit at one of its customers, Supplier shall pay DORMA a lump-sum compensation amount of €100.00 per employee and full hour worked. DORMA shall remain entitled to make further claims. Supplier is likewise at liberty to submit a counterclaim that DORMA did not incur such cost in time and effort, or that such cost was less than claimed.


5. Performance period

(1)    The delivery dates and other deadlines indicated in the purchase order are binding.
(2)    Supplier is obliged to notify DORMA immediately and in writing if circumstances arise or are foreseeable that indicate that the agreed deadline is jeopardized. The obligation to adhere to the originally agreed deadline remains unaffected.
(3)    Supplier shall not be entitled to cite any failure by DORMA to supply documentation unless Supplier has not received this documentation within a reasonable period despite having submitted an early written request.


6.    Default

(1)     In the event of contractually agreed periods being exceeded, Supplier shall be deemed to be in default, even without a reminder having been sent. Supplier must notify DORMA immediately in writing if circumstances arise or are foreseeable that indicate that Supplier will not be able to comply with the contractually agreed delivery date. If DORMA accepts a later delivery or performance by Supplier unconditionally, this does not constitute waiving the right to compensation, contractual penalties or other claims that DORMA may make due to late delivery or performance.
(2)     In the event of default, DORMA shall also be entitled to assert legal claims. In particular, DORMA shall be entitled to demand compensation in place of the performance and/or rescind from the contract.
(3)     In the event of default on the part of Supplier, DORMA shall be entitled to a contractual penalty in the amount of 0.1% of the gross order value for each full day of excedence, up to a maximum of 5% of the gross order value. The contractual penalty may also be demanded after receipt of the goods or service up to final payment without the need for having specified further conditions. The contractual penalty shall be set off against the total default damages claimed. Supplier shall be entitled to submit evidence that the loss incurred due to default is negligible or significantly less than claimed.


7. Transfer of risk

(1)The risk in respect of goods supplied shall be transferred to DORMA on arrival of said goods at the business premises of DORMA.
(2)This also applies if DORMA, on the basis of a special contractual agreement, has assumed responsibility for the costs of dispatch in an individual case or agreed to delivery on an ex-works basis.


8. Notification of defects

(1)    If the purchase is a commercial transaction for both parties, DORMA will inspect the goods immediately on receipt for any quantity deviations, delivery mistakes and externally visible damage. The inspection to determine compliance with quantity and identity of the delivered goods shall, as a minimum, be carried out on the basis of the delivery documentation. Defects and deficiencies not identifiable within the framework of this inspection shall be regarded as hidden noncompliances. Defects and deficiencies identified shall be deemed to have been notified within the required time provided that such notification is sent to Supplier within 14 calendar days from the date of goods receipt or, in the case of hidden noncompliances, from the date of their discovery.
(2)    In the case of large quantities, DORMA’s receiving inspection of the goods shall be limited to random sampling. Defects and deficiencies not discovered in the course of this inspection will be deemed to be hidden noncompliances.


9. Warranty claims

(1)    DORMA shall be entitled without restriction to assert the full range of statutory rights of redress in the event of defects or deficiencies. Notwithstanding these rights, DORMA may elect remedy in the form of noncompliance elimination or the supply of a compliant item or the manufacture or construction of a new item.
(2)    DORMA is entitled to remedy the defect or deficiency itself, or to have it remedied by a third party at the cost of Supplier, where damage or loss appears to be imminent or a particularly urgent need exists.
(3)    Supplier guarantees that, in relation to its goods and services, no rights of third parties within the member states of the European Union have been violated. If DORMA should inform Supplier prior to conclusion of the contract that the goods to be delivered are intended for another country, Supplier’s legal liability for defects and deficiencies shall also extend to this country. Supplier shall hold DORMA harmless of all claims that third parties may make against DORMA due to the infringement of their rights. This obligation to hold DORMA harmless does not apply in cases where Supplier is not responsible for the defect in title.
(4)    In the event of rescission from the contract, DORMA is entitled to continue using the goods and services of Supplier free of charge until it is able to procure a suitable substitute/replacement. In the event of rescission from the contract, Supplier shall bear the costs of installation and disassembly, removal and return shipment and shall also take care of any disposal required.
(5)    Claims for material defects lapse after 36 months. In the case of items to be used in a building construction or components for a building construction, claims for defects shall lapse after five years. The limitation period begins in each case with dispatch of the goods. In the event that longer limitation periods are prescribed by law, these shall take precedence.

 
10. Product liability

(1)    In the event that a customer or third party makes a claim for compensation against DORMA because of a product defect, Supplier is obliged to hold DORMA harmless from such claims to the extent that the loss or damage is attributable to a defect in a product supplied by Supplier. In cases of fault-based liability, however, this only applies if Supplier is in fault. Where the cause of the loss or damage is the responsibility of Supplier, the burden of proof shall lie with Supplier. In such cases, Supplier shall bear all costs and expenses, including reasonable legal costs or costs of a recall campaign. Applicable statutory regulations remain unaffected.
(2)    Supplier undertakes to take out and maintain a company public liability and product liability insurance policy with a flat-rate insured sum of €3 million per personal injury/property damage claim. Supplier shall provide written proof of this at the request of DORMA. Further claims by DORMA against Supplier remain unaffected.


11. Waste disposal

Unless otherwise agreed in writing, in the event of waste being produced in the course of contract execution by Supplier, Supplier shall be required to recycle or dispose of said waste at Supplier’s own cost in accordance with the provisions of applicable waste disposal legislation. Ownership, risk and responsibility under waste disposal law are transferred to Supplier as of the time of waste generation.


12. Prices / Invoicing

(1)    The prices cited in the purchase order are binding and – with inclusion of all discounts, surcharges, packaging, freight and customs charges – fixed prices subject to statutory value-added tax where applicable.
(2)    Invoices should be prepared in duplicate and then, following contract execution, sent separately per purchase order to the invoicing address indicated in the purchase order. Purchase order numbers/codes must be indicated. All billing documentation must be attached.
(3)    Invoices covering partial performance/part deliveries must be provided with the identifier “Part-Delivery Invoice,” and final invoices with the identifier “Final Delivery Invoice.”
(4)    General price increases up to the time of delivery may only be applied where these are provided for in the contract.


13. Terms and conditions of payment

(1)    Unless otherwise agreed, payments are due within 30 days with deduction of a 3% cash discount, or within 60 days net.
(2)    The payment term only begins once the goods or the service have been fully and correctly delivered or performed, the date of delivery has arrived and an auditable invoice has been received. In the event that Supplier is required to present to DORMA material test results, test certificates or records, quality documents or other information, completion of delivery or performance also requires receipt of these items.
(3)    Deduction of the cash discount is also permissible in the event that DORMA sets off payments or withholds payments of an appropriate amount due to defects or deficiencies; the payment term does not begin until complete remedy of such defects or deficiencies.
(4)    Payment does not mean recognition that the supply or performance has been contractually compliant.
(5)    DORMA shall only be deemed to be in default if, following a reminder sent by Supplier after the due date, payment is still not forthcoming.
(6)    If payments on account are contractually agreed, such advance payments only become due once DORMA receives a directly enforceable guarantee citing Supplier as the principal debtor and payable by a major German bank, cooperative bank or public savings bank in the amount of the advance payment.


14. Setting off / Right of retention / Assignment / Insolvency

(1)    DORMA is entitled to set off all claims that a company of the DORMA Group has against Supplier against claims arising from individual purchase orders. If requested by Supplier, DORMA will inform it which companies belong to the DORMA Group.
(2)    Inasmuch as DORMA has claims against other companies that belong to the same group as Supplier, DORMA is entitled to withhold payments until the claims against such companies have been settled.
(3)    Assignments and other transfers of rights and obligations of Supplier outside the scope of application of Section 354 a) HGB (German Commercial Code) are precluded.
(4)    Supplier insolvency: If Supplier ceases its payments, and if a temporary insolvency administrator is appointed, or insolvency proceedings concerning the assets of Supplier are applied for, initiated or dismissed due to a lack of assets, DORMA is entitled to rescind from the contract either in part or in whole, or to terminate the contract. In this case, DORMA may utilize existing equipment or previously completed goods and services provided by Supplier for continuation of work in hand against payment of the agreed amount. If no payment is agreed, DORMA shall owe reasonable payment.


15. Usufruct and proprietary rights

(1)    Supplier grants DORMA a simple, unlimited, freely transferable, sub-licensable, and irrevocable right of usufruct of the contractual goods and services for the purpose of the manufacture (including quality assurance, data management etc), usage and sale of DORMA products. Inasmuch as the contractual goods and services or the documentation have been created on behalf of DORMA and have been paid for, Supplier grants to DORMA the exclusive, unlimited, freely transferable, sub-licensable, worldwide and irrevocable right of usufruct of the contractual goods and services or the documentation. The rights of usufruct cited in 15.1 sentence 1 and 2 also entitle DORMA to modify the contractual goods and services, and include images, drawings, specifications, data sheets, design calculations, analytical techniques, formulations or other works produced or developed by Supplier in preparation for and execution of the contract.
(2)    Supplier guarantees that the rights of third parties, particularly those of its subsuppliers, do not impede the granting of such rights of usufruct and shall hold DORMA harmless of any and all claims in this respect.


16. Reservation of ownership / DORMA-furnished items / Tools

(1)    Inasmuch as DORMA furnishes Supplier with items, DORMA shall retain ownership of same (retained-title goods). Processing or conversion by Supplier is performed on behalf of DORMA. If the retained-title goods are assembled with other items not belonging to DORMA, DORMA acquires co-ownership of the new construction in accordance with its pro rata share of the value of the construction (purchase price plus value added tax) as calculated against the value of the other items incorporated at the time of assembly or attachment.
(2)    If the item furnished by DORMA is permanently mixed/integrated with other items not belonging to DORMA, DORMA acquires the co-ownership of the new construction in accordance with the ratio of the value of the retained-title goods (purchase price plus value added tax) and the other incorporated items at the time of integration. If the method of integration is such that the item produced by Supplier can be regarded as a principle construction, it is agreed that Supplier assigns to DORMA co-ownership on a pro rata basis; Supplier shall safeguard sole ownership or co-ownership on behalf of DORMA.
(3)    Inasmuch as Supplier is contractually obliged to manufacture tools, the tools shall be transferred to DORMA’s ownership on completion and following payment of the manufacturing costs. If the tools are to remain with Supplier for the manufacture of components, transfer of the tools shall be replaced by Supplier retaining the tools on behalf of DORMA and DORMA acquiring indirect possession. The tools are then ceded to Supplier by DORMA exclusively for production purposes. DORMA is entitled at any time to demand that Supplier return the tools. The provisions of paragraph 4 below shall also apply.
(4)    DORMA retains the ownership of tools made available by DORMA to Supplier. Supplier is obliged to use the tools exclusively for the manufacture of goods ordered by DORMA. Supplier is further obliged to arrange insurance cover for the tools belonging to DORMA on a new-for-old basis covering all risks. All claims for compensation covered by this insurance policy are immediately assigned by Supplier to DORMA; DORMA accepts said assignment. Supplier is obliged to perform all maintenance and inspection work and all repair and refurbishment work required for the tools owned by DORMA in good time and at its own cost. It is to notify DORMA immediately of any malfunctions or disruptions; should Supplier fail to do so through fault or negligence, claims for compensation shall remain unaffected.
Inasmuch as the value of the security rights assigned to DORMA in accordance with paragraph 1 and/or paragraph 2 exceeds the purchase price of all retained-title goods not yet paid for by DORMA by more than 10%, DORMA shall be obliged, on request of Supplier, to release certain security rights, selected at DORMA’s discretion.
(5)    All documents handed over by DORMA shall remain the property of DORMA. Without prior written consent, documents handed over by DORMA may not be copied or commercially utilized. They must not be made accessible to third parties and must be returned in full, unsolicited and immediately to DORMA following completion of the contract. Specialists and subsuppliers engaged by Supplier shall not be regarded as third parties in this sense provided that they are also covered by a similar confidentiality agreement with respect to Supplier. Supplier shall be liable for all losses incurred by DORMA from any infringement of this obligation.


17. Confidentiality and data protection

(1)    Supplier is obliged to treat all information it receives in performance of the contract with absolute confidentiality. It shall also oblige all persons entrusted by it with the co-performance of the contract to maintain the same degree of confidentiality.
These requirements do not apply to information already known to Supplier on receipt of the order or acquired by it in some other way (e.g. from third parties without reservation of confidentiality, or through its own independent efforts).
(2)    Supplier shall comply with the legal regulations covering data protection, including the written obligation imposed on employees in accordance with Section 5 BDSG [Federal Data Protection Act]. It shall also impose this obligation on persons entrusted by it with co-performance of the contract.
 
 
18. Publication / Advertising

An assessment or announcement of the business relationships existing with DORMA in publications or for advertising purposes shall only be permitted with the express prior written consent of DORMA.


19. Miscellaneous

(1)    The place of performance of the supply or service shall be the destination specified by DORMA.
(2)    The contractual relationship shall be subject to German law with exemption of the conflict-of-laws rule and also the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3)    Changes or amendments to these terms and conditions of purchase, including changes in the written form requirement, require the written form.
(4)    Inasmuch as Supplier is a merchant as defined in the German Commercial Code, a legal entity under public law or a special public fund, the place of jurisdiction shall be the domicile of DORMA for all disputes arising either directly or indirectly from the contractual relationship. Moreover, DORMA shall be entitled to take action at a Court responsible for the domicile of Supplier.
(5)    Should individual provisions of these terms and conditions of purchase be or become invalid or inoperable, the validity of the remaining provisions shall remain unaffected. The contractual parties undertake to replace any invalid or inoperable provision with a provision that comes as close as possible to the economic effect of the original provision from the commencement of its invalidity or inoperability.



B. Special terms and conditions for contracts for work and labor, contracts for work and materials, and service contracts

1. Scope of application / Variations

(1)    These special terms and conditions are supplemental to the general terms and conditions of purchase of the companies of the DORMA Group. They are applicable to contracts for work and labor, contracts for work and materials, and service contracts.
(2)    The receipt of goods described in the general terms and conditions of purchase above are, in the case of a contract for work and labor or a contract for work and materials, replaced by acceptance of the goods, and in the case of a service contract, by performance of the service.


2. Change in scope of work

(1)    Supplier shall notify DORMA immediately in writing of any change or addition to the contractual scope of work. Such changes or additions shall only be legally effective if approved in writing by DORMA. If Supplier should change or extend its scope of service or supply without prior written consent, Supplier shall compensate DORMA for all damage, loss and expenses resulting therefrom, or rescind from the contract. Applicable statutory regulations remain unaffected.
(2)    In the event of DORMA submitting change requests, Supplier shall, within ten working days, examine such changes for possible consequences and notify DORMA of the results in writing. In particular, effects on costs, on the time schedule and on the milestone plan must be indicated. If DORMA decides to implement the changes, the contractual parties will accordingly amend the contract in writing.


3. Use of subcontractors

(1)    The use of subcontractors by Supplier requires the prior written consent of DORMA.
(2)    If Supplier uses subcontractors without prior written consent from DORMA, DORMA has the right to rescind from the contract and/or demand compensation. Applicable statutory regulations remain unaffected.


4. Notification of concerns

Supplier is obliged to notify DORMA immediately and in writing of any concerns relating to the envisaged method of execution or the performance of other contractors.


5. Change of personnel

(1)    DORMA shall be entitled to demand the replacement of one employee by another on objective grounds. This applies particularly if doubts exist with respect to necessary experience and/or qualification, or if occupational health and safety or environmental protection regulations are not adhered to. Supplier undertakes to ensure the immediate provision of a qualified replacement in such cases. The agreed dates and deadlines shall remain unaffected by such action.
(2)    The replacement of personnel by Supplier requires the prior written consent of DORMA.
(3)    All costs arising from personnel changes shall be borne by Supplier.
(4)    Supplier shall not charge any costs or expenses for the employee over any reasonable familiarization period required.


6. Entry to the DORMA site

(1)    Entry to the DORMA site shall be reported promptly to gate security personnel.
(2)    Supplier personnel are required to comply with technical instructions issued by DORMA personnel.


7. Acceptance

(1)    In the case of a contract for work and labor or a contract for work and materials, DORMA will subject the work or the goods to an acceptance inspection within a reasonable period.
(2)    Applicable statutory regulations remain unaffected.
 

(Date of issue: July 1, 2013)


DORMA Deutschland GmbH


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