1. General Provisions/Scope
1.1 Unless agreed otherwise in writing, our orders shall be governed solely by the following terms and conditions in their respective valid version. Terms and conditions of the Supplier that either differ from or supplement these terms and conditions shall only be valid if they have been expressly accepted by us in writing. Such terms and conditions shall not be binding for us even if we do not expressly contradict an order confirmation based on them. These terms and conditions are equally applicable to services of the Supplier. Neither through unconditional acceptance of the delivery or service nor through payment of the prices shall differing or supplementary terms and conditions of the Supplier be deemed to have been accepted.
1.2 Execution of the order shall be regarded as acceptance of our terms and conditions, even if the Supplier has confirmed our order with terms and conditions which deviate, unless the Supplier has contradicted our terms and conditions in writing to the person named in the order within two weeks of receiving the order.
1.3 Our terms and conditions for orders shall also apply to all future business dealings with the Supplier.
1.4 Our terms and conditions for orders shall only apply to companies, public law entities and public separate estates within the meaning of section 310 (1), sentence 1 of the German Civil Code (BG).
2. Offer, Order, Order Confirmation, Delivery Call-Offs
2.1 Our orders are only binding if they have been issued in text form (Sec. 126 b German Civil Code (BGB)). Orders placed orally shall only be effective if they have been confirmed in text form by us.
2.2 The preparation or offers, estimates, project studies, etc. shall not incur costs for us and does not oblige us to place an order.
2.3 The Supplier shall be bound to his offer for the duration of six weeks, unless he has specified a longer binding period in the offer.
2.4 If the Supplier’s offer deviates from our request or if the order confirmation deviates from our order, the Supplier shall draw our attention to the deviation. Deviations in the order confirmation constitute a new offer and are only binding if we have confirmed them in text form.
2.5 Unless specific quantities and delivery times are indicated, we make no representations or warranties whatsoever with respect to the quantity of goods we will purchase from the Supplier. In these cases, the orders are placed to be able to make the purchases of goods described on them indefinitely or until any cancellation. Specific delivery times and quantities become only binding upon a separate order. Any forecasts or other estimates of quantities or requirements for goods provided by us to the Supplier shall be non-binding to us and the Supplier acknowledges that it is not entitled to rely on such forecasts or estimates as binding obligations unless expressly stated by us as such in writing.
The following provisions of sections 2.6 to 2.9 apply exclusively to delivery call-offs of Caterpillar Energy Solutions GmbH:
2.6 These terms and conditions for orders shall also apply in the same way to delivery call-offs for quantities to be delivered pursuant to framework agreements concluded between the Supplier and us. In addition, the following special conditions (sections 2.7 to 2.9) shall apply to such delivery call-offs:
2.7 Each delivery call-off contains a time horizon of approx. 6 months with quantities and dates. The last delivery call-off transmitted by us to the Supplier shall always apply. The delivery call-offs are transferred in accordance with section 2.1. Separate individual orders for the goods/services are also possible in addition to delivery call-offs. Regarding quantities and dates, delivery call-offs shall be deemed accepted if the Supplier does not object immediately, but no later than two (2) working days after receipt of the delivery call-off. If the Supplier foresees difficulties in production and supply of primary materials / semi-finished goods or circumstances beyond his control, which may impair the punctual delivery of the goods/services or their quality, the Supplier shall immediately notify our delivery-calling department. An objection of the Supplier against delivery call-offs for other reasons, for example as a means of pressure to apply other prices or conditions against us, is null and void.
2.8 Unless expressly agreed otherwise, the following release periods shall apply to the quantities and dates specified in the delivery call-offs:
For weeks 1 to 6, the delivery call-off represents a binding production release and order for the Supplier; in exceptional cases, short-term changes of up to +/- 15% shall remain possible for us. The information in the delivery call-offs for weeks 7 to 16 serves the Supplier for the disposition and procurement of the primary material / semi-finished goods (release of material) but does not constitute a release for production. Quantities in the delivery call-offs that go beyond these aforementioned periods (from week 17) are non-binding information for planning purposes for both parties. We reserve the right to adapt the dates and quantities listed in the delivery call-offs to the actual requirements and to place additional orders for goods/services with the Supplier.
2.9 The delivery dates specified in the delivery call-offs are binding and indicate the day of delivery at the goods receipt of the respective delivery location. The Supplier must take into account the freight duration and send the goods for collection at sufficient intervals before the due date or notify the regional freight forwarder at sufficient intervals prior to collection. If the Supplier delivers the goods earlier than 5 days before the date specified in the delivery call-off, we will charge the Supplier with the proportionate interest expense resulting from increased warehouse inventory (buffer storage) with us. If the Supplier’s delivery is in excess of the quantity of the existing delivery call-off and/or Supplier delivers without an existing delivery call-off and there are no immediate follow-up delivery call-offs with which we can offset the delivery, we will repack the deliveries at the goods receipt and return the delivery quantity that is in excess with an inspection report to the Supplier.
For the additional expenses incurred by us, the Supplier shall be charged as follows:
Handling costs: EUR 40,– per delivery.
Costs for incoming goods inspection: EUR 80,– per delivery.
Insofar as a non-agreed transport becomes necessary which was not caused by us, these costs shall be borne by the Supplier. This also applies if deliveries are divided into several partial deliveries.
3. Delivery Dates, Delay
3.1 Agreed dates for delivery or performance by the Supplier are binding. Receipt at the receiving center specified by us shall be decisive whether deliveries are on time. The punctuality of deliveries involving installation or assembly and other services shall depend on the date and time of completion by the Supplier. The delivery times must be agreed with us sufficiently in advance of the delivery.
3.2 If the Supplier recognizes that he will not be able to deliver or perform on time, he must inform us in writing without undue delay of the anticipated length of time of which the deadline will be exceeded. Our other rights shall not be affected by the notification.
3.3 If the Supplier defaults, we shall be entitled to demand a lump sum penalty amounting to 0.2 % of the price of the delayed product or spare part per each day of delay, but not exceeding a maximum of 5 % of the relevant product or spare parts price; other legal claims (withdrawal or damages instead of performance or reimbursement of wasted expenses) remain unaffected by the above provisions. The Supplier is expressly permitted to prove that no loss or significantly less loss than the aforementioned lump sum has been incurred by us as a result of the delay. Early deliveries and partial deliveries may be rejected by us.
3.4 The Supplier shall prepare and maintain a plan acceptable to us for the resumption and continuity of its business, which shall specify how, in the event of a business interruption, the Supplier will comply with its obligations under these terms and conditions for orders and any other agreements, delivery schedules or delivery call-offs that exist between the parties based on these terms and conditions for orders. The plan must describe the Supplier’s resumption and continuity process and demonstrate its ability to resume normal delivery of the goods to us as soon as this is economically practicable. The plan also takes into account the Supplier’s suppliers and the suppliers of those suppliers. The Supplier may update this plan at any time with our prior written consent.
4. Shipping, Packaging
4.1 Shipping, freight (including freight for empties) and packaging costs, as well as customs duties, fees, taxes and other deductions will be paid by the Supplier, unless agreed otherwise. The goods are to be shipped exclusively in accordance with our packaging regulations or the packaging regulations specified in the description of the goods respectively. Subject to higher damages, non-compliance with the packaging regulations for which the Supplier is responsible will be charged by us at a flat rate of EUR 40,– per transport unit.
4.2 If separate payment of packaging costs has been agreed, the costs must be credited to us upon return of the packaging. The packing shall be returned at the Supplier’s expense.
4.3 In the case of pricing ex works or ex stock, shipping must take place at the respective lowest cost. In the case of pricing free domicile, we may instruct the Supplier with regard to the mode of transport and the freight carrier.
4.4 A completed delivery note, stating our order number, our material number and the material designation, statistical commodity code in accordance with the Commodity Index for Foreign Trade Statistics, origin of the good, quantity and weight of the delivered good must be attached, unless other information is requested in the order.
4.5 Unless otherwise agreed, delivery shall be effected in standard packaging units or, where appropriate, using europallets or lattice boxes. The packaging must protect the delivery items as best as possible against corrosion and damage. All packaging materials used must comply with the Packaging Ordinance (Verpackungsordnung) and Ordinance on Hazardous Substances (Gefahrstoffverordnung) valid at the time of delivery. The Supplier has to take back the packaging.
5. Passing of Title and Risk
5.1 With the exception of simple retentions of title, all other (qualified) retentions of title by the Supplier require our written declaration of consent in order to be effective.
5.2 Unless otherwise agreed, the risk of accidental loss or accidental deterioration shall be transferred to us upon acceptance in the case of services and deliveries involving installation or assembly and following receipt by the receiving center specified by us in the case of other deliveries.
6. Period of Validity
6.1 This contract period of validity is automatically extended by 12 months at a time, if one of the parties does not cancel the order at 6 months’ notice prior to its expiry.
6.2 However, any possible obligation on the part of Caterpillar Energy Solutions to source a particular proportion of their parts to be supplied requirements from the supplier loses its validity, regardless of the provision in 6.1, when the period of validity stated in the order expires.
7. Invoices, Payment
7.1 Invoices must be submitted following the delivery or performance, stating the order number, delivery date, our material number, the quantity and the delivery note number. Submission occurs preferably by e-mail.
7.2 Payments shall be made less 2% discount on receipt of payment within 14 days net upon receipt of a verifiable invoice, otherwise within 30 days net after receipt of a verifiable invoice.
7.3 All payments shall be made solely to the Supplier.
8. Documentary Evidence of Origin, Proofs for Turnover Tax Purposes, Export Restrictions, Conflict Minerals, REACH
8.1 The Supplier agrees to comply with all requirements of applicable national and international exportation, customs and foreign trade legislation (“FOREIGN TRADE LEGISLATION”) for all Goods to be supplied and all Services to be rendered and to obtain the required export licences unless it is not the Supplier, but rather we or a third party which is responsible for applying for an export license.
Supplier shall notify us as soon as possible, but no later than before the date of delivery, of all information and data (itemized on the order confirmation, delivery note, and invoice) which we will need to comply with applicable FOREIGN TRADE LEGISLATION for any import and export and also with the reselling of Goods and services, but especially the following “EXPORT CONTROL AND FOREIGN TRADE DATA” for each of the Goods and Services:
- the “Export Control Classification Number” in accordance with the “U.S. Commerce Control List” (ECCN), if the product is subject to the “U.S. Export Administration Regulations”,
- the “Dual-Use Item List Number” (including sub-numbers) as set out in the Annexes to Directive (EC) No 428/2009 (EU Dual-Use Directive), provided that the product is subject to the provisions of the EU Dual-Use Directive;
- the “Export List Number” in accordance with the annexes of the German Foreign Trade Ordinance (German “Deutschen Außenwirtschaftsverordnung”, AWV), provided that the product is subject to the provisions of the Foreign Trade Ordinance;
- the “Customs Tariff Number” in accordance with the current Commodity Index for Foreign Trade Statistics and the HS (“Harmonized System”) Code;
- the country of origin (non-preferential origin), and
- the Declarations of Suppliers indicating the Preferential Origin (for European suppliers) or Certificates of Preferences (Certificate of Origin, ATR or approval on the invoice for non-European suppliers).
In case of changes to the origin or the qualities of Goods or services or the applicable FOREIGN TRADE LEGISLATION, the supplier shall update and communicate in text format the EXPORT CONTROL AND FOREIGN TRADE DATA as soon as possible, but no later than before the date of delivery.
8.2 All Goods subject to CE regulation or certification must bear appropriate certifications by Supplier and must be accompanied by all required covering documents associated with such certification. In the case of acceptance of machines, installations etc., these must be available at the latest at the time of acceptance.
8.3 In the event that any Goods are, in part or in full, subject to export restrictions pursuant to the European Community, German or other foreign trade and payment legislation (e.g. United States of America legislation), the Supplier shall inform Buyer immediately.
8.4 On an annual basis or more frequently if requested by us, Supplier shall disclose to us any items Supplier delivered to us that contain tin, tantalum, tungsten, gold, or other materials that may be designated as a conflict mineral by the U.S. government (“Conflict Minerals”). Supplier shall have a supply chain policy for Conflict Minerals and shall undertake (a) a reasonable inquiry into the country of origin of Conflict Minerals incorporated into items it provides us; (b) due diligence of its supply chain, as necessary, to determine (i) if Conflict Minerals incorporated into items it provides us are sourced from the Democratic Republic of the Congo or adjoining countries and if so, (ii) whether such Conflict Minerals directly or indirectly support conflict in these countries, and (c) risk assessment and mitigation actions as may be necessary to implement the reasonable country of origin inquiry and due diligence procedures. Supplier agrees to provide to us all supporting information and documentation substantially in the format requested by us, including, but not limited to, supply chain data necessary or desirable for us to comply with its obligations under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and its implementing regulations. All such supporting information and documentation shall be retained by Supplier for a minimum of five years and be subject to our audit upon reasonable notice. Supplier shall include the substance of this Section 8.4 in all subcontracts awarded by Supplier for work under our orders.
8.5 The Supplier guarantees that all goods delivered or used by it, that are delivered as an integral part of the performance of the order have been registered in accordance with REACH Directive (EC No. 1907/2006) and that all obligations (including but not limited to, notification and labelling obligations) in accordance with the EU regulations REACH, RoHS (EU DIRECTIVE 2011/65) and CLP (EC No. 172/2008) are fulfilled. The Supplier shall inform us in writing about all goods containing substances of very high concern (SVHC) with more than 0.1% w/w as defined under REACH. The existence of an EC Declaration of Conformity and CE marking, insofar as they result from RoHS, is required. Correspondence, including any existing safety data sheets (in German and English language), shall be sent to our purchasing department, if necessary, by e-mail.
9. Rights in the Case of Defects
9.1 The Supplier is obliged to comply with the latest state of the art and, if applicable, EN ISO 9000 et seq. at all times. He warrants and guarantees that the service or good delivered is new, unused, of good quality and free of any defects. In case of defects, we are entitled to the statutory rights without any restriction. Any changes in the type of material used and processed or in the constructural design, compared to earlier similar or identical deliveries require our notification prior to the start of the production as well as our written consent. The period of limitation for claims based on defects is either a) 2 years from i) acceptance by us for deliveries and services by the Supplier in our facility or ii) from acceptance by our (end) customer for deliveries and services that are further processed or resold, or b) 3 years from delivery by the Supplier, whichever occurs earlier.
The period of limitation for warranty claims shall be 5 years from the respective legal start date of the limitation period for structures and such projects, where the successful delivery consists in the provision of planning and monitoring services for these, as well as for structures and/or objects, which have been used for a structure in accordance with their usual use and which have caused the building’s defectiveness.
If the Supplier with our consent checks on the presence of a material or quality defect, or – with our consent – works on a removal of such, the statute of limitations shall be suspended for the duration of these measures. This shall not affect statutory reasons for any suspension of the statute of limitations.
9.2 The Supplier is obliged to carry out an appropriately thorough inspection of the outgoing Goods before delivery of these. This obligation may be amended by additional quality assurance conditions or a separate quality assurance agreement. These obligations are of an autonomous service contract nature and are to be seen independent of the obligation to deliver defect-free Goods as defined in 9.1.
Claims for damages due to breach of these obligations, quality assurance conditions and / or quality assurance agreements shall therefore take precedence over our statutory rights due to defects without any prejudice to or effect on these. These rights apply independently in addition to any legal rights due to defects.
The same applies to claims from 9.8.
9.3 The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial obligation to inspect and give notice of defects under the following conditions: Our obligation to inspect shall be limited to defects that show during our incoming Goods inspection as an external / optical inspection including the delivery documents (e.g. transport damage, wrong and short delivery) or which are identifiable during our quality inspection through random sampling.
If acceptance has been agreed upon, there shall be no obligation to inspect. Otherwise, an obligation to inspect exists only to the extent to which such an inspection is feasible in the ordinary course of business under consideration of the circumstances of the individual case. Our obligation to report defects discovered at a later point in time / give notice of such shall remain unaffected. Regardless of our obligation to examine, our report (notice of defects) shall be deemed to be immediate and timely if it is sent within [5] working days of discovery or, in the case of obvious defects, of delivery.
9.4 Within the scope of subsequent fulfilment, we are entitled to the right of choice pursuant to § 439 para. 1 BGB (German Civil Code).
Subsequent fulfilment also includes the removal of the defective Goods and reinstallation at the location where the defective part is located on removal, if the Goods have been incorporated into another item, machine or structure or attached to another item, machine or structure in accordance with their nature and intended use; our statutory claim to reimbursement of corresponding expenses remains hereby unaffected. In the event of a defect, the Supplier shall bear all expenses required for or caused by the examination.
9.5 Without prejudice to our statutory rights and the provisions in 9.4, the following shall apply:
If the Supplier does not fulfil his obligation to subsequent fulfilment within a reasonable period set by us, we may eliminate the defect ourselves and demand compensation from the Supplier for the necessary expenses.
If the subsequent fulfilment by the Supplier has failed or deems to be unreasonable or unacceptable for us, no deadline needs to be set; we shall inform the Supplier of such circumstances immediately, if possible, in advance.
Subsequent fulfilment by the Supplier presents itself unreasonable for us, if there are special reasons (e.g. particular urgency, endangerment of operational safety or imminent disproportionate damage) and there are indications based on facts that the subsequent fulfilment by the Supplier will last longer than a replacement performance by us.
9.6 In addition to claims based on defects, we are entitled to our legally determined recourse claims within the supply chain (supplier recourse in accordance with §§ 445a, 445b, 478 BGB) without restriction. We shall particularly be entitled to demand the exact type of subsequent fulfilment (rectification of defects or replacement delivery) that we owe to our customer in each individual case. Our statutory right of choice (§ 439 para. 1 BGB) is not restricted by this.
Before we acknowledge or fulfil a claim for defects asserted by one of our customers (including reimbursement of expenses pursuant to §§ 445a para. 1, 439 para. 2 and 3 BGB), we shall notify the Supplier with a brief explanation of the facts and request a written statement. If a substantial statement is not made within a reasonable period and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Supplier is obliged to proof the contrary. Additionally, there shall be no need to set a deadline for subsequent fulfilment for all claims for defects to which we are entitled against the Supplier pursuant to § 437 BGB beyond the regulations in § 445a para. 2 BGB (German Civil Code).
Our claims arising from supplier recourse shall also apply if the defective Goods have been further processed by us or another entity, e.g. by installation in another product.
9.7 If our own personnel is used to remedy a defect, the Supplier shall reimburse us for this deployment of personnel, including but not limited to, the preparation of a test report as well as the defect detection costs the regional Caterpillar hourly cost rate applicable for Germany in the then current amount plus any value-added tax incurred.
9.8 If the Supplier is responsible for a product defect or deficiency, he shall be obliged to indemnify us against any claims for damages by third parties at our first request to the extent that the cause lies within his sphere of control and organization and he himself is liable in external ratio. In this context, the Contractor shall also be obliged to reimburse any expenses pursuant to §§ 683, 670 BGB (German Civil Code) resulting from or in connection with a recall action carried out by us. To the extent possible and reasonable, we shall inform the Supplier of the content and scope of the recall measures to be carried out and give him the opportunity to comment. Other statutory claims shall remain unaffected.
9.9 The Supplier commits to maintain a product liability insurance with a – blanket – cover sum of € 5 million per personal injury/property damage; if we are entitled to further claims for damages, these shall remain unaffected. The Contractor authorizes us to assert all claims for damages under the aforementioned insurance.
9.10 Any consent to drawings, calculations or other technical documents of the Supplier by us shall not affect our rights in the event of defects and other claims resulting from defects or, if applicable, warranty claims.
10. Industrial Property Rights
10.1 The Supplier shall be liable for ensuring that no rights of third parties (patents, utility patents, trademarks, license rights, etc.) are breached in connection with his delivery or performance – including in regard to its use or onward sale. If claims are brought against us by third parties on account of this, the Supplier shall hold us harmless from these claims at the first written request; in this case, we shall also be entitled to withdraw from the agreement at any time. If the Goods purchased from the Supplier are forwarded to countries other than those listed in this section, we will list the countries concerned in our order letter. In this case, by accepting the order the Supplier confirms that he will hold us harmless in accordance with the preceding provisions if the Goods supplied by him violate property rights existing in these countries.
10.2 In case of legal action by reason of an intellectual proprietary right violation, the Supplier shall provide security for the full amount of the evidently impending damages. In addition, the Supplier shall bear all legal costs and expenditures incurred in connection with such legal action, unless these were disproportionate or unnecessary.
10.3 If the Supplier develops inventions or improvements in connection with the execution of the ordered delivery or performance in accordance with our specifications, documentation or models, we shall have a gratuitous, non-exclusive right of use of these inventions or improvements and any corresponding intellectual property rights. The Supplier is obliged to inform us immediately about any such inventions, improvements and property rights.
10.4 If the Supplier has property rights to the ordered deliveries or services or parts thereof or to manufacturing processes, he will inform us of these upon request, stating the intellectual property right datas.
11. Industrial Property Rights of Development Orders
Notwithstanding section 10.3 above, unless agreed otherwise between the parties, we shall be entitled to the inventions and improvements that have resulted from execution of the ordered delivery or performance in accordance with our specifications, documentation or models if the Supplier’s performance only or also relates to the development of the subject of the delivery or performance. The Supplier is obliged to accept any inventions made by employees which result from execution of the order and to transfer all rights to the inventions to us. If the Supplier intends to use people to execute the order who are not employed by him or who are not to be considered employees for the purposes of the Employee Invention Law (Arbeitnehmererfindungsgesetz), he will ensure by way of appropriate contractual means that he is able to fulfill his obligation to transfer any of such claim.
12. Documentation
12.1 Drawings, calculations, first sample test reports, operating, installation, assembly and maintenance instructions, manuals and other documentation must be transferred to us on time and in the form and number agreed, required by law or required by the circumstances free of charge. They shall become our property together with all transferable rights.
12.2 We reserve all property rights and copyrights to the calculations, drawings, drafts and other technical documentation of any kind provided by us. They must be treated in confidence and may neither be made accessible to third parties without our written agreement nor used for third parties in any way. The obligation to secrecy shall also continue to apply after this agreement has been executed. It ceases if and to the extent that the know-how contained in the diagrams, drawings, calculations and other documentation handed over has become general knowledge. In the event of a culpable infringement of this provision, the Supplier must pay a contractual penalty of 50,000.00 €. Our rights to damages or to withdraw from the contract and the provisions of section 15.2 shall not be affected thereby.
12.3 The documentation in accordance with section 12.2, including all copies, must be returned to us at our request; the Supplier’s rights of retention are excluded. If the Supplier does not comply with our demand that he returns the documents without delay, he must pay us a contractual penalty of 20,000.00 €. Our rights to damages and to withdraw from the agreement remain unaffected.
12.4 The Supplier’s sole responsibility for the delivery/performance shall not be restricted by the transfer of such technical documentation, unless the documents have been designated by us as being binding and the Supplier has contradicted to mistakes recognized during obligatory inspection without undue delay.
12.5 Safety data sheets must be kept up-to-date by the Supplier and must be provided to us without any request.
13. Tools, Materials, Samples, Models and Designs
13.1 Tools or materials provided by us shall remain our property and part of our intellectual property rights. The Supplier will store them with the care of a prudent businessman at his own expense, label them as being our property and insure them at his own expense against fire, water damage and theft at their replacement value. Upon request, the Supplier shall provide us with suitable proof of the insurance. At the same time, the Supplier assigns all claims for damages arising from this insurance to us; we herewith accept the assignment.
13.2 The Supplier is obliged to treat tools provided with care, to clean and maintain them, store them correctly and replace them or repair them without delay at his own expense in the event of loss or damage.
13.3 Tools provided may only be used to provide the deliveries or services commissioned by us and may neither be supplied nor disclosed to third parties nor replicated for the Supplier’s own purposes or for third parties. Section 12.2, sentences 5 and 6 shall apply accordingly under the proviso that the contractual penalty amounts to 25,000.00 €.
13.4 The Supplier will inform us without delay of access to the provided tools or materials by third parties, particularly of compulsory enforcement measures and other infringements of our property. He shall compensate us for all damages and costs incurred by us as a result of this duty being breached and as a result of necessary intervention measures against access by third parties.
13.5 Upon request, the Supplier shall return the provided tools and materials to us without undue delay; the Supplier’s rights of retention are excluded.
13.6 The provisions of the preceding figures 13.1 to 13.5 also apply to the dies, models, model equipment, designs, samples, measuring and testing equipment, etc. provided by us; they similarly apply to the aforementioned items and tools which the Supplier has manufactured or purchased at our expense. It is agreed between the Supplier and ourselves that such items or tools shall become our property at the time of the manufacture or purchase. The transfer of possession will be compensated for by the safekeeping in accordance with figure 13.1.
13.7 If the Supplier processes materials provided by us, remodels them or combines or compounds them with other items, this shall be deemed to have been carried out on our behalf. We will immediately assume the ownership of the items created in this way. If the provided material only makes up part of the new item, we shall be entitled to co-ownership of the new item in the ratio of the value of the provided material to the value of the total item. Section 13.1 shall apply accordingly to the safekeeping, storage and labeling of the items which we own or co-own.
13.8 13.8 If the Supplier uses a subcontractor in accordance with the provisions of section 22, the Supplier shall ensure that all provisions of this section 13 are also implemented and applied by the subcontractor and contractually oblige the subcontractor with regulations that correspond to the regulations described in this section 13.
14. Spare Parts
14.1 The Supplier undertakes to supply spare parts for a period of 15 years after delivery at appropriate and competitive serial prices and other terms and conditions if the parts concerned are subject to wear and tear within their normal lifetime and if we are only able to obtain them from the Supplier and not elsewhere on the market in comparable quality and at comparable prices. If the Supplier is no longer able to continue delivering the spare parts after this period has expired, he shall inform us thereof in writing and give us the opportunity to place a final order.
14.2 If the Supplier ceases to deliver spare parts, he is obliged to pass over the documents and associated know-how required to manufacture the spare parts to us (in exceptional cases, where required, against payment of appropriate remuneration) and to permit us to use these spare parts free of charge including any intellectual property rights associated therewith. Section 12.3 of these terms and conditions for orders shall not be affected. If we are not able to reach agreement with the Supplier within one month as to the amount to be paid by us, the amount shall be determined by the competent Chamber of Industry and Commerce at our company headquarters in Germany at our request. The costs of the arbitrator shall be borne by the parties in the ratio of the respective negative deviation of the prices determined by the arbitrator from the prices which were last communicated by the respective party before the commencement of the arbitrator’s activity. We shall not be obliged to purchase the above-mentioned documentation and associated know-how, even after submission of the expert determination. The Supplier is, however, obliged to sell and transfer to us at the price stated in the expert determination at our request.
15. Reproduction
15.1 The Supplier is obliged to manufacture and/or process delivery items and their components and parts in accordance with our specifications, documentation, designs, samples or models exclusively in his own business. Such delivery items, their components or parts may neither be sold to third parties, pledged, or otherwise passed on nor used for third parties without our written consent.
15.2 If items or their components or parts manufactured in accordance with our specifications, documentation, designs, samples or models are impermissibly sold to third parties, pledged or otherwise passed on, we shall be entitled to demand a sum of 30 % of the sale value, but at least 50,000.00 € without proof as compensation. We shall remain free to assert higher damage claims or other rights or claims. The Supplier is expressly permitted to prove that no loss or significantly less loss than the aforementioned lump sum has been incurred by us. 15.3 The Supplier shall neither itself nor instruct anyone to modify, adapt, disassemble or reproduce any goods that contain our confidential information or were manufactured on the basis of or using our confidential information.
15.4 The Supplier shall not use any logos or trademarks of the Supplier or third parties on goods specially designed for us without our express written consent.
16. Work in our Factory
16.1 Caterpillar’s third-party security and safety policies, as amended from time to time, shall apply.
16.2 If employees of the Supplier or other persons acting on his authority stay on our premises for the purposes of assembly, commissioning, training, subsequent performance or for other reasons, the Supplier shall bear the corporate responsibility for their activity. In this case, he is responsible for ensuring that the safety regulations and accident prevention regulations are observed.
16.3 To prevent the workplace from being endangered, we shall appoint a coordinator in such cases in accordance with professional association provisions. In such cases, the Supplier shall immediately contact our purchasing manager. The coordinator has the authority to instruct the Supplier’s employees and people acting on his behalf in matters concerning occupational safety; however, these people are not hereby relieved of the duty to adhere to safety regulations and accident prevention regulations.
16.4 We shall only be liable in the event of accidents or damage to the Suppliers’ employees or people working on his behalf in cases of willful or gross negligence. The Supplier shall hold us harmless from all claims asserted against us in connection with such accidents or damage.
17. Liability
17.1 The Supplier shall be liable for all damage and accidents caused on us or on third parties by him, his employees or other people acting on his behalf while performing his deliveries or services, unless he proves that neither he nor his employees nor other people acting on his behalf are at fault. This also applies to damage which occurs while carrying out work to public or private facilities (e.g. supply lines). The statutory provisions concerning absolute liability are not to be affected thereby.
17.2 Claims by the Supplier for compensation are excluded. Exceptions to this are damages caused by injuries to life, body or health, if we are responsible for the breach of duty and for other damages resulting from our willful of grossly negligent breach of duty or a breach of fundamental contractual obligations for which we are responsible. Breaches of duty by our legal representatives or vicarious agents shall be treated as if they were our own breach of duty.
17.3 The Supplier shall hold us harmless from all claims which buyers of our products or other third parties lodge against us because they have suffered loss or damage as a result of using our products in the manner intended or foreseeable, provided that this loss or damage can be traced back to product defects and/or a breach of the Supplier’s duties to warn and instruct or the cause of the product defect is within the Supplier’s domain and/or organizational field.
18. Commitment to pay the minimum wage
18.1 The Supplier shall assure that he himself, his sub-contractors or any staffing suppliers commissioned by a sub-contractor pay their labor force they employ/hire the general minimum statutory wage and comply with the German Minimum Wage Act (German “Mindestlohngesetz”), Employee Secondment Act (German “Arbeitnehmer-Entsendegesetz”), Third Social Code (German “Drittes Sozialgesetzbuch”), Act on Temporary Employment (German “Arbeitnehmerüberlassungsgesetz”) and Act to Combat Undeclared Work (“Gesetz zur Bekämpfung der Schwarzarbeit”).
18.2 The Supplier shall, at our request with regard to our possible liability under Article § 13 of the Minimum Wage Act in conjunction with Article § 14 of the German Employee Secondment Act, provide a guarantee issued by a large German bank or by a public-law savings bank worth a maximum amount of 25.000,00 €. The guarantee must be issued by waiving the defense of unexhausted remedies (absolute guarantee).
Moreover we can, at any time, demand that the Supplier submits the relevant documents and records as proof that he himself, his sub-contractors or any staffing suppliers commissioned by a sub-contractor pay the statutory minimum wages and statutory social security contributions respectively. The same applies to the submission – possibly anonymized – of documents in connection with the further obligations pursuant to section 18.1.
In addition, the Supplier hereby confirms that it (a) is not excluded from the award of public contracts in accordance with § 19 of the German Minimum Wage Act and (b) has not violated the obligations incumbent on it under the provisions of section 18.1 in the past. Upon request, the Supplier shall prove this by presenting appropriate attestations from a third party bound to secrecy (tax consultants, auditors, etc.) or in an equally suitable manner.
18.3 If employees or any other third parties assert any claims against us on the basis of Article § 13 of the German Minimum Wage Act in conjunction with Article § 14 of the German Employee Secondment Act or in any other way in connection with a breach by the undertakings / persons listed in section 18.1 of any of the obligations listed in section 18.1 and demand the payment of the statutory minimum wage, the Supplier shall release us from any liability in this respect. As for the rest, we shall be entitled to retain the remuneration owed to the Supplier and, where applicable, to pay it over to the claimant concerned.
The Supplier shall bear all and any costs incurred by us for conducting the court and out-of court proceedings as well as the administrative procedures pursuant to section 1 hereof.
18.4 , If the Supplier, any of its subcontractors or hirer commissioned by the Supplier or any of its subcontractors violate this section 18 this shall constitute a cause for the immediate and extraordinary termination of the relevant contract respectively the business-relationship by us without giving notice.
19. Supply Chain Shipment Security
[only if Supplier exports or imports from or into the United States, designated U.S. ports of entry or U.S. territory]
19.1 If and to the extent Supplier is shipping items from jurisdictions outside the United States into the United States, Supplier accepts responsibility for, and shall implement security measures to ensure, the safe and secure packaging, containerization, transportation and delivery of such items throughout the supply chain in adherence with the security criteria required under U.S. Customs & Border Protection’s (“CBP”) Customs-Trade Partnership Against Terrorism (“C-TPAT”). Supplier’s obligations hereunder shall continue until such time as those items are delivered to us in accordance with the agreed Incoterm; provided that Supplier must immediately notify our relevant facility manager or distribution center manager upon learning of any compromise to a container seal.
19.2 Supplier shall comply with all CBP laws, defined for purposes of these Terms and Conditions as any laws, regulations or legally binding rules issued or enforced by CBP regarding the export or import of Goods, materials, equipment, or any other tangible item from or into the United States, any designated U.S. port of entry, or any U.S. territory, including, specifically, the security measures required by C-TPAT. Supplier shall promptly notify us if it is a member of the C-TPAT program or any analogous program in its country of domicile (such as Authorized Economic Operator or Partners in Protection), as well as of any changes to that status or identified instances of non-compliance. Supplier shall respond to the annual supply chain security questionnaire issued by us or provide a certification demonstrating it meets all minimum supply chain security criteria, where requested for C-TPAT or other supply chain security programs that you may participate in. Supplier also agrees that it shall take no action that adversely affects our status under the C-TPAT or other supply chain security programs.
20. Caterpillar Supplier Policies
Supplier shall comply with Caterpillar Inc.’s supplier Code of Conduct or its functional equivalent and with Caterpillar Inc.’s supplier Communication Guidelines.
21. Supplier Systems
Supplier shall notify us of proposed changes to any of its business systems that might adversely impact our ability to order or receive items in accordance with an order with sufficient advance notice to enable us to confirm the impact, if any, on our ability to order or receive such items.
22. Transfer of Rights, Subcontractors
22.1 The Supplier may neither partially or wholly transfer rights resulting from the agreement to third parties nor pledge them to third parties without our express written permission; section 354a of the German Commercial Code (HGB) is not affected thereby.
22.2 Any intentional transfer of fundamental partial deliveries or services to subcontractors must be communicated to us in writing, naming the subcontractor, and requires our approval. The transfer is only deemed to have been approved if we have not objected to it within two weeks after receipt of the notification. Section 15.1 remains unaffected. The Supplier shall also be responsible for the subcontractor to the full extent, even where we have consented, and shall remain responsible to us to fulfil the contract.
23. Withdrawal / Termination in the Event of Insolvency or Change of Ownership
23.1 Without waiving other legal powers, we shall be entitled to withdraw from the agreement without substitution if the Supplier becomes unable to pay or if insolvency proceedings have been opened in Supplier’s assets, insolvency proceedings have been instituted or the institution has been rejected for lack of mass or another substantial impairment of the financial situation of the Supplier occurs.
23.2 During the term of the respective order(s), we have the option of terminating it (them) in writing with immediate effect if the Supplier is subject to a change of ownership or control.
24. Confidentiality
24.1 Our orders must be treated as confidential with respect to third parties. Breaches of this duty entitle us to withdraw from the agreement, to demand compensation and to take all measures which appear necessary to protect our interests; section 12.2 remains unaffected. The Supplier shall also be liable for preserving the confidentiality if our orders are passed on to third parties with our consent.
24.2 The Supplier shall not disclose the existence of these terms and conditions for orders or the fact that he has a business relationship with us in the context of his marketing or advertising.
24.3 The Supplier shall not take photos of facilities or places owned or controlled by us without our prior written permission.
25. Force Majeure, Business Disruptions
25.1 Business disruptions caused by force majeure (rebellion, fire, war, etc.) and strikes or lock outs relieve us of our duty to accept services or receive Goods for the duration of such hindrance. After the business disruption has ended, we shall inform the Supplier without delay as to when acceptance of performance or receipt of Goods can commence.
25.2 If a business disruption lasts longer than one month and we are not responsible for the occurrence, we shall be entitled to withdraw from the agreement. The Supplier is not able to claim any claim for compensation therefrom.
26. Data Protection
In accordance with Art. 13 GDPR, we draw attention to the fact that the supply data received in conjunction with the business relationship that contains personal data may be processed by us for our own purposes and may also be stored by our affiliated companies.
For further information: http://caterpillar.com/dataprivacy
27. Place of Jurisdiction, Applicable Law
27.1 Exclusive place of jurisdiction for all claims between us and companies or public law entities or public separate estates is the competent court at our company headquarters in Germany, unless mandatory statutory provisions provide otherwise. However, we also have the right to institute claims against a Supplier in his place of jurisdiction.
27.2 The legal relationship between us and the Supplier or between us and third parties shall be governed solely by the law of the Federal Republic of Germany, as it applies between German merchants. The application of provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) and the provisions of German international private law is expressly excluded.
27.3 Should individual provisions of this agreement be invalid or excluded by a separate agreement, the effectiveness of the remaining provisions shall not be affected thereby.