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General Terms and Conditions for Purchasing and Special Terms and Conditions

A. General Terms and Conditions for Purchasing


1. Scope of Application

(1) These Terms and Conditions for Purchasing are a constituent part of all purchase orders issued by companies in the DORMA Group (hereinafter “DORMA”) and shall apply exclusively.

(2) Conflicting or supplemental terms and conditions of the other contracting party (hereinafter “Contractor”) shall be rejected. Such terms and conditions shall apply only if DORMA has declared its agreement with such terms and conditions or portions thereof, expressly and in writing.

(3) These Terms and Conditions for Purchasing shall apply even if DORMA accepts goods/services from the Contractor without reservation, in the knowledge of the Contractor's conflicting or divergent terms and conditions.

(4) These Terms and Conditions for Purchasing shall also apply to all contractual relationships within the scope of any future business relationship, even if they are not expressly stipulated again for such a purpose.


2. Formation of Contract

(1) DORMA shall send a written purchase order to the Contractor. Transmission via electronic data transmission shall also be considered as valid written form. Oral ancillary agreements to the purchase order shall be binding only if they are confirmed in writing by DORMA. This shall also apply to subsequent amendments and additions.

(2) The purchase order shall be deemed to be accepted if the Contractor does not raise any objection to it within 2 days.

(3) If the Contractor accepts the purchase order only with divergences, then such divergences must be explicitly stated. The amended purchase order shall be considered as a new offer. Moreover, the Contractor must indicate to DORMA in writing in the purchase order any changes vis-à-vis earlier contractual terms or catalog information. A contract shall be formed only after written acceptance of the amended terms by DORMA.


3. Compliance with Statutory Provisions / Notification of Objections

(1) The Contractor must fulfill the technological state-of-the-art, and must comply with prevailing statutes and ordinances as well as duties imposed by official authorities.

(2) Should the relevant statutes, ordinances, or the technological state-of-the-art change between the time that the contract is formed and the time that performance is rendered, and if this impacts on contractual performance, then the Contractor shall inform DORMA immediately in writing regarding the change, as well as the associated consequences in terms of schedules and costs. DORMA shall make a decision on the changes within a reasonable period of time. If the change is approved, the contracting parties shall come to mutual agreement regarding the cost arrangement based upon the purchase order, and shall adapt the contract in writing. If DORMA does not accept the change, then either party shall have the right to terminate the contract.


4. Terms of Delivery

(1) Unless otherwise agreed, deliveries shall be performed DDP (Incoterms 2000) to the location specified by DORMA, including packaging.

(2) Each delivery shall be accompanied by a delivery note in duplicate. The delivery note shall include the purchase order number, product number, and vendor number.

(3) Prior to shipment of the goods, DORMA must be informed in writing regarding their value, weight, and date of shipment.

(4) If the Contractor is required to provide samples of materials, test reports, quality assurance documents, or other documentation, then the submission of these documents shall also be a prerequisite for the completeness of delivery and performance.

(5) DORMA shall not be obligated to accept partial shipments or multiple shipments that have not been contractually stipulated. This shall apply mutatis mutandis if the goods are delivered prior to the stipulated date. If necessary, DORMA shall have the right to return the goods at the Contractor’s expense and risk, or to have them stored by a third party.

(6) Should DORMA incur costs due to the defective delivery of the contractual item, particularly transportation, handling charges, labor, or material costs, or costs for an incoming goods inspection that exceed the normal scope of such an inspection, the Contractor must bear these costs.


5. Time of Performance

(1) The dates specified in the purchase order are binding.

(2) The Contractor must inform DORMA immediately in writing should circumstances occur or become apparent, as a result of which compliance with the stipulated date is not possible. The obligation to comply with the originally stipulated dates shall remain unaffected thereby.

(3) The Contractor may invoke the absence of required documentation to be supplied by DORMA only if the Contractor has not received such documentation within an appropriate period of time, despite a timely written request.


6. Default

(1) In the event that the contractually agreed times are exceeded, the Contractor shall be in default without a reminder being issued.

(2) In the event of default, DORMA shall be entitled to the statutory claims. In particular, DORMA shall have the right to demand compensatory damages instead of performance and/or to withdraw from the contract.

(3) Without prejudice to the right to assert further damages for default, the contractual penalty is agreed as 0.1% of the net order value for each week, or part thereof, that a stipulated date is exceeded, although not exceeding a total of 0.5% of the net order value. The contractual penalty may also be asserted after receipt of the goods/service and until final payment, without the need for reservation. The Contractor shall have the right to submit evidence that no damages, or a lower amount of damages, actually occurred as a result of the default.


7. Transfer of Risk

(1) Risk shall transfer to DORMA upon receipt of the goods at the DORMA business premises.

(2) This shall apply even if DORMA has assumed the shipping costs in an individual case based upon a separate contractual agreement, or if delivery is made “ex works”.


8. Notice of Defect

(1) In the event of a purchase representing a mutual commercial transaction for the parties, notices of defect must be made to the Contractor by DORMA in a timely manner (within 10 business days after receipt of goods), and in the case of hidden defects, within 10 business days after such defects are discovered.

(2) For larger quantities, examination of the goods by DORMA shall be restricted to random samples. Defects that are not discovered by these means shall be considered hidden.


9. Warranty Claims

(1) DORMA shall be entitled to the full statutory warranty claims. Irrespective of this, DORMA may require at its own discretion, as a primary warranty claim, remedy of the defect, delivery of a non-defective item, or production of a new item. Fulfillment of the primary warranty claim shall occur by mutual agreement with the Contractor and under consideration of DORMA’s operational requirements.

(2) DORMA shall have the right to remedy the defects itself at the Contractor’s expense in the event that delay would entail risk or if there is a special need for urgency.

(3) In the event of rescission, DORMA shall have the right to continue using the Contractor’s goods and services without charge until a suitable replacement has been procured. In the event of rescission, the Contractor shall bear the costs for removal/dispatch of return transportation, and shall be responsible for disposal.

(4) In principle, warranty claims shall expire within 30 months. For items used in a building structure, or for services for a structure, warranty claims shall expire after 5 ½ years. The statute of limitations shall begin upon receipt of the goods and/or service.


10. (Product) Liability

(1) The statutory provisions on liability shall apply.

(2) In the event that a customer or other third party makes a product liability claim against DORMA, then the Contractor must indemnify DORMA against all such claims if and insofar as the damages were caused by a defect in the product supplied by the Contractor. In the event of fault-based liability, however, this shall apply only if the Contractor is at fault. The Contractor shall bear the burden of proof to the extent that the cause of the damage is within the Contractor’s scope of responsibility. In these cases, the Contractor shall assume all costs and expenditure, including the costs for bringing any legal action or recall action. In all other respects, the statutory provisions shall apply.


11. Waste Disposal

If waste is produced within the scope of contract performance by the Contractor, then unless otherwise stipulated in writing, the Contractor shall salvage or remove the waste at its own expense pursuant to the provisions of the legislation on waste disposal. Ownership, risk, and responsibility under the legislation on waste disposal shall transfer to the Contractor at the time that the waste is produced.


12. Prices/Invoicing

(1) The prices specified in the purchase order are binding and are fixed prices, including all discounts, surcharges, packaging, freight, and customs charges, and are subject to sales tax at the prevailing rate.

(2) The invoices, to be prepared in duplicate, must be sent separately based on purchase order after fulfillment of the contract to the invoicing address specified in the purchase order. Purchase order numbers must be specified. All billing documentation must be attached.

(3) Invoices for partial goods/services must be marked with the reference “Invoice for Partial Goods/Service”, and final invoices must be marked with the reference “Invoice for Remaining Service”.

(4) Original invoices may not be included with deliveries of goods.

(5) General price increases may not be applied prior to the delivery date unless provided for in the contract.


13. Terms of Payment

(1) Payments shall be due only after receipt of goods and invoice, and as of the stipulated delivery date.

(2) Unless otherwise stipulated, payments shall be made within 30 days of delivery and receipt of invoice with a 3% cash discount, or within 60 days net.

(3) A cash discount shall also be permitted if DORMA offsets against payments or withholds payments in an appropriate amount due to defects; the period allowed for payment shall begin only after complete remedy of the defect.

(4) Payments shall not signify acknowledgment of the goods and/or service as being in accordance with the contract.

(5) DORMA shall be in default only if payment is not made upon issuance of a reminder by the Contractor, such reminder being issued after the due date for payment.

(6) If advance payments are contractually stipulated, then these advance payments shall be payable only when DORMA has received from the Contractor as security for these advance payments a directly liable bank guaranty in the amount of the advance payment, payable at first call, issued by a major German bank, credit union, or public savings bank.


14. Offset/Assignment

(1) DORMA shall have the right to offset claims arising from individual purchase orders against all claims against the Contractor held by a company in the DORMA Group.

(2) If DORMA is entitled to claims against other companies that belong to the same corporate group as the Contractor, then DORMA shall have the right to withhold payments until the claims against this company are settled.

(3) Assignments or other transfers of the Contractor’s rights and duties beyond the scope of application of Section 354 a HGB [German Commercial Code] are hereby precluded.


15. Licenses and Proprietary Rights

(1) DORMA may use the contractual item, including the underlying patent rights and other proprietary rights, in its corporate area without restriction. This license shall also entitle DORMA to make changes to the contractual item, and includes illustrations, drawings, calculations, analysis methods, formulations, and other works produced or developed by the Contractor during the formation and performance of the contract. DORMA may provide the documentation to third parties for the purpose of producing replacement parts and spare parts based upon such documentation, or to make changes.

(2) The Contractor hereby warrants that the granting of the license does not conflict with rights held by third parties, in particular the Contractor’s subcontractors, and hereby indemnifies DORMA in respect of any and all such claims.

(3) The statute of limitations for the obligation to ensure freedom from conflicting proprietary rights shall be 10 years, calculated from the date of contract formation.


16. Retention of Title - Provision of Materials - Tools

(1) If DORMA provides parts to the Contractor, then DORMA shall retain ownership thereof. Processing or transformation performed by the Contractor shall be undertaken for DORMA. If the goods to which title is being retained are processed with other items not belonging to DORMA, then DORMA shall acquire co-ownership of the new item proportional to the value of the item (purchase price plus VAT) in respect of the other processed items at the time of processing.

(2) If the item provided by DORMA is inseparably intermixed with other items not belonging to DORMA, then DORMA shall acquire co-ownership of the new item proportional to the value of the item to which title is being retained (purchase price plus VAT) in respect of the other intermixed items at the time of intermixing. If the intermixing occurs in such a way that the Contractor's item must be considered as the primary item, then the parties hereby agree that the Contractor shall transfer co-ownership to DORMA proportionally; the Contractor shall secure sole ownership or co-ownership for DORMA.

(3) To the extent that the Contractor is contractually obligated to produce tools, the tools shall become the property of DORMA after production and the payment of manufacturing costs. If the tools remain with the Contractor for the production of parts, then the handover of the tool shall be substituted by an arrangement in which the Contractor shall possess the tools for DORMA, and DORMA shall have indirect possession. The tools shall be provided to the Contractor by DORMA merely for production purposes. DORMA shall have the right to demand the tools from the Contractor at any time. The arrangement specified in Para. 4 shall also apply.

(4) DORMA shall retain ownership of the tools provided to the Contractor. The Contractor must use the tools exclusively for the manufacture of goods ordered by DORMA. The Contractor must also obtain, at his own expense, insurance covering fire, water damage and theft at replacement value for the tools belonging to DORMA. Simultaneously, the Contractor hereby assigns to DORMA all claims for compensation arising from such insurance; DORMA accepts the assignment. The Contractor must perform at its own expense all necessary maintenance, inspection, and repair work on the tools belonging to DORMA. The Contractor must immediately report any faults to DORMA; if the Contractor is at fault for neglecting to do so, then claims for compensatory damages shall remain unaffected.

(5) If the security rights to which DORMA is entitled pursuant to Para. (1) and/or Para. (2) exceed by more than 10% the purchase price of all goods to which title is retained and which have not yet been paid by DORMA, then DORMA must release the security rights at DORMA’s discretion, upon demand by the Contractor.

(6) All documentation provided by DORMA shall remain the property of DORMA. Such documentation may not be disclosed to third parties, and must be returned to DORMA in full after performance of the contract, without being requested to do so. Specialists and subcontractors engaged by the Contractor shall not be considered as third parties so long as they have agreed to the same confidentiality conditions vis-à-vis the Contractor. The Contractor shall be liable for all damages incurred by DORMA arising from violation of this obligation.


17. Confidentiality and Data Protection

(1) The Contractor must treat as confidential, without restriction, all information obtained during performance of the contract. This shall not apply to information already known to the Contractor upon receipt, or of which the Contractor had otherwise obtained knowledge (e.g. from third parties without the reservations of confidentiality, or through the Contractor's own independent efforts).

(2) The Contractor must comply with the statutory provisions on data protection, including the requirement for a written commitment from its employees in accordance with Section 5 BDSG [Federal Data Protection Act (Bundesdatenschutzgesetz)]. The Contractor must likewise impose the same obligation on all persons authorized by it for the performance of this contract.


18. Publication/Advertising

Exploitation or announcement of the business relationship existing with DORMA in publications or for advertising purposes shall be permitted only with DORMA’s express prior written consent.


19. Miscellaneous

(1) The place of performance for deliveries of goods and/or services shall be the destination specified by DORMA. The place of performance for payments shall be Ennepetal.

(2) This agreement shall be governed by and construed in accordance with German law, with the exception of the regulations on application of competing or conflicting laws.

(3) Amendments/supplements to the Terms and Conditions of Purchasing, including amendments to the requirement for written form, must be made in writing.

(4) If the Contractor is a merchant [Kaufmann] as defined by the German Commercial Code [HGB], a legal entity under public law, or a special fund under public law, the exclusive venue for any disputes arising directly or indirectly in conjunction with the contractual relationship shall be DORMA’s primary place of business. DORMA shall also have the right to take action before the court having jurisdiction in the Contractor's primary place of business.

(5) Should individual provisions of these terms and conditions be or become invalid/unenforceable, the remaining provisions shall remain in effect. The contracting parties shall replace the invalid/unenforceable provision from the onset of its invalidity/unenforceability with a provision that most closely resembles the commercial intent of the original provision.

 


B. Special Terms and Conditions for Contracts for Labor and Materials, Work Performance, and Services


1. Scope of Application/Divergences

(1) These Special Terms and Conditions shall apply as a supplement to the General Terms and Conditions of Purchasing of the companies of the DORMA Group in the case of a contract for labor and materials, work performance, or services.

(2) The receipt of goods described in the General Terms and Conditions shall be replaced by the acceptance of the goods in the case of a contract involving labor and materials or work performance, and by the performance of the service in the case of a service contract.


2. Change in Performance

(1) The Contractor shall immediately inform DORMA in writing of amendments/extensions to the scope of the contract whose necessity only becomes apparent in the course of performing the contract. The amendments/ extensions shall take legal effect only with DORMA’s written consent.

(2) The Contractor shall review requests for changes made by DORMA within 10 business days with regard to the possible consequences, and shall report the results to DORMA in writing. In doing so, the impact on costs as well as the schedule shall be pointed out in particular. If DORMA decides to have the changes performed, then the contracting parties shall adapt the contract accordingly in writing.


3. Use of Subcontractors

(1) The use of subcontractors shall require DORMA’s prior written consent.

(2) If the Contractor uses subcontractors without prior written consent, then DORMA shall have the right to withdraw from the contract and/or to demand compensatory damages.


4. Notification of Objections

(1) The Contractor must inform DORMA immediately in writing regarding any objections to the planned type or manner of performance or the services provided by other companies.


5. Change in Personnel

(1) DORMA shall have the right to demand replacement of personnel for good cause. This shall apply in particular if doubts exist regarding the necessary experience and/or qualifications of the personnel, and/or if there is a failure to comply with work safety/environmental laws. In such a case, the Contractor must immediately provide a qualified replacement. The stipulated dates shall remain unaffected thereby.

(2) Any change in personnel initiated by the Contractor shall require DORMA’s consent.

(3) The Contractor shall bear all costs associated with a change in personnel.

(4) For an appropriate orientation period, no costs shall be billed for an employee.


6. Entering the Facility

(1) Entry into the facility must be reported in a timely manner.

(2) Instructions issued by DORMA's qualified personnel must be followed.


7. Acceptance

(1) In the case of a contract for labor and materials or work performance, DORMA shall accept the performance within an appropriate time period.

(2) Acceptance may be refused even if based upon immaterial defects.

(3) In all other respects, the statutory provisions shall apply.

 

(Version: 1st January 2005)
 
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DORMA GmbH Co. KG, Ennepetal
DORMA Automatic GmbH Co. KG, Ennepetal, Langenhagen, Zusmarshausen
DORMA Automatic GmbH Co. KG KT Systeme, Köln
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DORMA-Glas GmbH, Bad Salzuflen
DORMA GlasTec GmbH, Detmold
DORMA Hüppe Raumtrennsysteme GmbH + Co. KG, Westerstede-Ocholt
DORMA Time + Access GmbH, Bonn
GLAMÜ Vertrieb von Duschsystemen und Sanitärartikeln GmbH, Heitersheim
MAME Türendesign GmbH, Rietberg
Modus GmbH Montage von Duschsystemen und Sanitärartikeln, Heitersheim