Terms and Conditions
Owner of the website www.passavant-ee.com:
PASSAVANT Energy & Environment GmbH
(formerly Passavant-Roediger GmbH)
Phone: +49 (0) 69 94 74 15-0
Fax: +49 (0) 69 94 74 15-111
Managing Director: Mokhtar Haddad
Register court: Frankfurt HRB 99171
VAT identification number: DE 047 241 07757
Terms and Conditions:
Notwithstanding any express agreements to the contrary, these General Conditions (hereinafter “General Conditions”) shall be valid for all Purchase Orders (hereinafter “POs” or “PO” in singular) concluded between Passavant Energy & Environment GmbH (hereinafter “PE&E”) and the company awarded with the PO (hereinafter “VENDOR”) for the supply of tangible goods, works incl. engineering, equipment or materials to be produced and/or manufactured and/or Services (all categories hereinafter also the “SUPPLY”). Except as otherwise agreed, the full PO shall consist of these General Conditions, the Purchase Order letter, the respective Special Procurement Conditions and all agreements made between PE&E and the VENDOR for purchasing contracts and laid down in writing by PE&E in each order. The full PO supersedes all prior undertakings, irrespective of form, between the parties relating to the subject matter of the PO. Conflicting terms and conditions by VENDOR that have not been expressly accepted by PE&E shall not be binding on PE&E, even if they have not been expressly rejected in whole or in part. These General Conditions shall also apply in the event that PE&E accepts VENDOR's SUPPLY offer without reservations or if PE&E is aware of VENDOR's conflicting terms and conditions.
2. General Requirements for SUPPLY
The scope of SUPPLY includes the packing and marking of the equipment and/or materials or other protective measures relating to transportation and storage at the point of agreed delivery. Any component(s) not mentioned in PO are still to be considered as part of the SUPPLY if required in order to complete the overall scope pursuant to the PO. All equipment and materials shall be new and of generally recognized and state of the art manufacture, as well as reliable once in operation and shall not be prototypes. VENDOR will provide storage instructions to the PE&E prior to delivery of the SUPPLY. All mark numbers shall be "hard stamped" and painted. All material provided shall be of the quality specified in the PO. Quantities ordered must not vary without the written permission of PE&E. Mill Certificates (if applicable) or, at a minimum; Conformity Certificates shall be submitted to the PE&E. All materials including steel, weld material, fasteners and paint shall be referenced by way of Conformity Certificates. VENDOR shall provide its own detailed fabrication drawings and structural calculations, if necessary, to complete the scope of SUPPLY. The cost of these drawings and calculations shall be included in the price. Any applicable weld or pressure test results shall be retained permanently by VENDOR and shall be available to PE&E or his representatives upon request.
3. Quotations, Orders and Price
Quotations and preliminary price estimates, whether submitted to PE&E acting solely on his own behalf or also acting on behalf and on account of third parties shall not be remunerated. Quotations and preliminary price estimates shall be in accordance with the invitations to quote. Quotations proposing alternative solutions are encouraged but these shall be clearly identified as such. Sections 17 and 18 of these General Conditions shall apply likewise. Only POs issued in writing shall be binding on PE&E. PO's requiring confirmation shall be confirmed in writing within 14 calendar days after receipt by VENDOR. VENDOR declares that his SUPPLY is not subject to EU-export restrictions. The absence of such export restrictions on VENDOR's SUPPLY is deemed an essential condition thereof under any agreement and these General Conditions.
4. Time of Delivery
Delivery dates, time schedules, intermediate milestones, deadlines, etc. shall be governed by the PO. VENDOR is herewith informed that failure to comply with delivery dates, meet time schedules, reach milestones on time or any other delay in achieving the agreed deadlines may result in the application of compensatory damages of considerable amount under PE&E’s contract with the final client. VENDOR must be aware that the damages caused may exceed the value of VENDOR's PO.
5. Penalties / Liquidated Damages
Without prejudice to Section 10 of these General Conditions and subject to the terms and conditions of the respective PO, penalties or, as may be agreed, liquidated damages, shall be forfeited in the event that VENDOR is in default under the terms of the PO or in delay in accordance with the agreed schedule. Payment of penalties or liquidated damages shall not release VENDOR of his duty of proper and timely perfor-mance. The acceptance of VENDOR's performance or work by PE&E without reservation does not preclude PE&E’s right to claim penalties or liquidated damages, which may be claimed until final payment is effected, at the latest.
6. Variation of SUPPLY
VENDOR shall, on request by PE&E and free of charge, carry out such minor variations and repairs at any time that do not result in additional costs or extension in the delivery time of the SUPPLY. VENDOR may propose, in writing, variations to improve the SUPPLY. PE&E shall not be obliged to accept such variations but may choose to do so. Variations accepted by VENDOR shall not release VENDOR from any responsibility under the Terms and Conditions of any PO. Furthermore, PE&E is entitled, also for SUPPLY in progress, to request more significant variations to SUPPLY or additional scope not considered in the PO. In the event that these variations or additional scope affect the price or the delivery date of the SUPPLY, VENDOR shall request, within 7 days, a Change Order in accordance with the procedure outlined in the PO. If VENDOR fails to request a Change Order within said period following the introduction of a variation, his right for a change in price and/or extension of time shall be deemed forfeited.
7. Suspension of PO
PE&E shall be entitled to suspend the PO at any time without due cause or the need to provide justification.
If the execution of a project being carried out with PE&E’s participation is interrupted for a predictably long period, PE&E shall notify VENDOR thereof in writing within a reasonable period of time. Upon instruction by PE&E and, as far as technically viable, VENDOR shall immediately stop the work on the SUPPLY or continue it to the state of fabrication/level of detail determined by PE&E. VENDOR shall be entitled to payment of the SUPPLY or parts thereof effectively provided and reimbursement of reasonable additional expenditure incurred based on sufficient supporting evidence. Compensation for any special, incidental, indirect or consequential damages, under any concept of law whatsoever, shall be excluded.
VENDOR shall resume work on the SUPPLY immediately after PE&E has instructed VENDOR in writing to continue with the said SUPPLY.
VENDOR shall ensure that all laws and regulations applicable to the carriage of dangerous goods and hazardous materials, such as those relating to marking, packing and transportation, are duly complied with. In all other respects, the SUPPLY shall be dispatched in accordance with PE&E's instructions. Any dispatch notes, bills of lading, forwarder's receipts etc., which shall, in any case, indicate the gross and net weights, the number and labelling of boxes, pallets, etc. shall be sent to PE&E on the date of dispatch. Invoices shall not be accepted as forwarding advice.
9. Passing of Risk / Transport Insurance
Passing of risk and transport insurance requirements shall be governed by the specific ‘INCOTERM’ referenced in the PO, which is to be construed in accordance with "Incoterms 2010".
10. Liability for Defects / Liability / Indemnity
Given that on plant construction projects, defects in movable goods to be installed in process plants can typically only be detected once the complete plant has been commissioned, PE&E´s duty to inspect the SUPPLY after delivery and to issue defects notices is limited to those defects obvious and detectable without additional technical expense in the proper course of business. Insofar as movable goods are delivered to, or via, third parties under a third-party or ‘drop shipping’ transaction, it shall be sufficient for PE&E’s compliance with its duties to inspect the goods and report any defects pursuant to Section 377 para 1 of the German Commercial Code (‘HGB’), to forward, without delay, defects notices issued by such third parties, in particular the end buyer, in the proper course of their business.
VENDOR warrants that the SUPPLY complies with the laws, regulations, provisions, instructions and directives of authori-ties, mutual indemnity associations and trade associations, the relevant norms and standards and with the generally recognised current state of the art in Germany, the country of origin of the SUPPLY and in the country in which the Plant is located or the main contract works is to be built. The foregoing applies in particular to the laws, regulations, provisions, instructions and directives with regard to environmental protection, health and safety at work. VENDOR shall conduct such inquiries as may be necessary to ensure compliance with these requirements, with regard to the country of final destination of the SUPPLY.
Furthermore, VENDOR warrants that the SUPPLY is free from any and all defects and deficiencies which might make them unsuitable for their intended use or operation and that they possess all the specified characteristics that have been speci-fied, agreed upon and/or promised or guaranteed by VENDOR.
Subject to the provisions of section 635 of the German Civil Code (§635 BGB) in the case of performance of works and, in other instances as required by PE&E, any and all such errors, defects and deficiencies in SUPPLY shall promptly be made good by VENDOR at no expense to PE&E. As required by PE&E, VENDOR shall remedy, correct or replace the defective or deficient SUPPLY in his own place of work, at the final client´s plant site or wherever suitable repair facilities and qualified labour are promptly available. Making good defects shall also include the removal of the cause of such defects.
All expenditure incurred by making good defects, repairs or deficiencies, such as transport costs, tariffs, entry fees, administration costs, costs of repair and re-commissioning costs shall be for VENDOR's account. All costs incurred in locating the defects, deficiencies or damages and their causes and in removing the causes shall also be for VENDOR's account.
In the event of danger to life and limb, or, if operational safety is put at risk, to prevent disproportionate damages or if the defects and/or deficiencies are only of a minor nature, PE&E himself may make good such defects and/or deficiencies on VENDOR's account without prior instruction to the Vendor to make good such defects.
In the event that VENDOR fails to repair/correctly re-perform, or, denies repair/re-performance, PE&E shall be entitled to make good such defects and/or deficiencies itself on VEN-DOR's account and have the right to terminate the contract in accordance with Section 11, or reduce the price, without prejudice to PE&E´s right to claim damages or reimbursement of expenses.
Any and all damages caused to PE&E by defects and deficiencies shall be reimbursed by VENDOR in full.
Notwithstanding any terms and conditions in the PO to the contrary, the defects liability period shall be, as applicable, in accordance with sections 438 or 634a of the German Civil Code counting from the date of commissioning of the plant for which VENDOR's SUPPLY is destined. The defects liability period for the SUPPLY shall be extended by such periods in which the SUPPLY or the final contract scope containing the SUPPLY were out of operation due to errors, defects and deficiencies attributable to VENDOR. The provisions of this section shall also apply to the defects liability covering repaired or replaced items. In such cases, the defects liability period of the repaired or replaced items shall commence on the date of commissioning of the repaired or replaced items or, as the case may be, on the date of PE&E’s acceptance of such items for the purposes of the contract.
In the event of cancellation of a PO in accordance with section 11, or, termination by PE&E pursuant to section 13 of these General Purchasing Conditions, PE&E shall be entitled to use VENDOR's SUPPLY until a repair/replacement solution is available and operable at the jobsite, however, for no longer than 2 years from the date the cancellation was duly notified. If recovery of the SUPPLY by VENDOR requires e.g. the disassembly and/or demounting of a plant, a machine or a building, VENDOR shall restore the same to its previous condition.If and to the extent that VENDOR assumes guarantees (“Beschaffenheitsgarantie”) or acts fraudulently, he shall be fully liable to PE&E. Furthermore, VENDOR shall be liable without limitation and shall indemnify and hold PE&E harmless for death, physical injuries caused by the SUPPLY, damages caused intentionally by VENDOR, or through negligence of, himself, his legal representatives, attorneys-in-fact, employees, agents and sub-contractors as well as for all damages caused under product liability, other forms of strict liability and/or any claims based on unfair competition. VENDOR shall hold PE&E harmless PE&E's in relation to claims brought against PE&E by third parties on the grounds of product liability inasmuch as attributable to SUPPLY provided by VENDOR. VENDOR indemnifies PE&E for costs of litigation and/or arbitration pursuant to any claim or damage referred to above.
11. Cancellation (“Rücktritt”) due to VENDOR's Default
Should it become apparent that delivery of the SUPPLY will be delayed or that the PO will not be complied with by VENDOR, PE&E may give notice of such default and specify a reasonable time period within which VENDOR shall at own expense remedy, repair or re-perform that part of the SUPPLY that is non-compliant and/or accelerate and recover the schedule in case of delay. If VENDOR fails to recover the schedule, remedy, repair or re-perform within a reasonable period following PE&E's notification, then PE&E may cancel the PO. Section 323 paragraph 5 German Civil Code (BGB) is expressly excluded. In no way shall the cancellation of the PO affect PE&E´s rights or remedies to claim damages or reimbursement of expenses from VENDOR.
12. Termination (“Kündigung”) due to Force Majeure
Should delivery of the SUPPLY be delayed due to war, acts of terrorism, general strike, natural disaster, acts of governmental authorities or other events of Force Majeure, which were not foreseeable for VENDOR and which, by objective standards, could not be prevented by reasonable precautionary measures or counteraction, in the light of the Force Majeure event and its consequences PE&E and VENDOR shall agree upon a reasonable extension of time for performance of the contract. However, if due to the delay PE&E´s interest in contract performance is frustrated (“entfallenes Interesse”), or, if the delay caused by the event of Force Majeure exceeds 90 calendar days, PE&E may terminate the contract in writing with immediate effect. In the event of termination PE&E shall only reimburse VENDOR for the actual expenditures incurred by VENDOR, including that proportion of the profit margin, which corresponds to the work already performed. VENDOR shall provide evidence for the sums claimed by him.
13. Right to Terminate (“Kündigungsrecht”) at any time; termination due to
insolvency of VENDOR
In the case of a contract for works, PE&E shall be entitled to terminate the PO at any time without cause or the need to provide justification. Subject to section 13, 3rd sentence hereof, if PE&E terminates at its discretion, VENDOR´s right to be remunerated shall be governed by section 649 of the German Civil Code (§649 BGB). For that portion of the work which has not yet been performed by VENDOR upon termination, VENDOR´s remuneration shall be fixed at 5% of the agreed remuneration corresponding to the unperformed work.
If VENDOR or one of his creditors files a petition of insolvency (“Insolvenzantrag”) or a petition for an arrangement regarding the VENDOR's estate, PE&E shall be entitled to terminate the PO without prejudice to his further contractual or statutory rights and remedies and/or to assume fully or partially - at his discretion - the rights and obligations of VENDOR's contracts with his sub-vendors.
Cancellation shall not affect PE&E's rights to claim damages and compensation, in particular pursuant to Section 5 hereof.
VENDOR shall provide evidence that he has taken out a third-party liability insurance with a minimum lump sum cover of EUR 5,000,000 per occurrence for death, personal injury, property damage, environmental pollution including worldwide coverage. VENDOR's liability shall neither on its merits nor in terms of amount be restricted to the third-party liability insurance cover.
15. Right to Inspect
PE&E or his representatives are entitled, at own expense, to review and inspect VENDOR's and sub-vendor's fabrication drawings, engineering calculations, fabrication, materials and workmanship at all reasonable times during the delivery peri-od. The inspection shall normally not disturb the develop-ment/production of the SUPPLY, however, if it becomes evi-dent that either the design, the materials or workmanship do not comply with the PO, PE&E may require VENDOR to make good any such defect or otherwise ensure that the SUPPLY will comply with the provisions of the PO. Any impact that such requirement may have on any costs incurred by either party or the PO delivery schedule, shall be VENDOR´s responsibility. Any inspections or testing provided for in VENDOR's quality assurance plan or in accordance with PO requirements prior to the final acceptance inspection, shall, unless otherwise agreed, be carried out at VENDOR's or sub-contractor's workshop or works. VENDOR shall notify PE&E in good time (minimum of three (3) weeks) before the inspection is due to be carried out so that PE&E or his representative will have the opportunity to attend. VENDOR shall bear all incurred cost of said inspection. PE&E shall bear the cost of its own personnel or representatives relating to such inspections, with the exception of those inspections resulting from repeated defective performance byVENDOR. The inspection carried out by PE&E and the acceptance in connection therewith does not relieve VENDOR from his defects liability for supplied equipment, material or workmanship or any other of his obligations under the PO.
16. Third Party Rights
VENDOR assumes an independent and proper guarantee that his SUPPLY or the use thereof do not infringe any rights of third parties, in particular intellectual property rights and that third parties may not rightfully raise such infringement claims against PE&E. Should VENDOR's SUPPLY infringe third party rights, VENDOR will fully indemnify and hold PE&E harmless against any claims raised by third parties. PE&E shall be entitled to obtain at VENDOR's expense licence to use the SUPPLY in question from the rightful owner of the proprietary rights affected.
17. Patterns and Samples
Any patterns and/or samples which VENDOR may prepare pursuant to the scope of PO and at PE&E's expense shall be-come PE&E's property; such patterns/samples as well as any patterns/ samples supplied by PE&E shall be safely stored by VENDOR at the latter’s expense and shall be available on de-mand. Patterns/samples shall be insured as third-party property. The patterns/samples shall only be used to comply with the PO and may not be used for, or allowed to be used by, any third party without PE&E's express written consent.
VENDOR shall furnish PE&E in due time pursuant to the PO one hard copy and one electronic copy of each and any of his workshop/fabrication drawings in accordance with the PO. Approval requirements and the type of software to be used shall be specified in the PO. PE&E's approval of the drawings shall not release VENDOR from any of his defects liability obligations or guarantees. Drawings prepared according to PE&E's instructions shall be provided with a title block and a reserve clause in PE&E's favour, as specified by PE&E. PE&E reserves its copyright on these drawings.
All rights relating to drawings, plans, process flow diagrams, data, calculations and all other documentation (hereinafter “CONFIDENTIAL INFORMATION”) placed at the disposal of VENDOR, his agents and/or sub-vendors or prepared by VENDOR on the basis of PE&E's know-how and/or specifica-tions, shall remain the property of PE&E, or, as the case may be, shall become property of PE&E or its parent company. All CONFIDENTIAL INFORMATION shall only be used for the purposes approved and specified by PE&E and must not be made available or accessible to third parties without PE&E's prior and express permission in writing. After ending of VEN-DOR's activity for PE&E, the CONFIDENTIAL INFORMATION, including any copies made thereof, shall be returned to PE&E. VENDOR shall not disclose to third parties any information on technical and/or business processes and transactions, installations, equipment, plants etc. in relation to PE&E, its parent company, or any of its affiliates or in relation to PE&E's customers to which VENDOR may have gained access through the work carried out for PE&E. VENDOR shall maintain said confidentiality for fifteen (15) years after effectiveness of the PO. VENDOR shall bind his staff, sub-vendors and agents accordingly on a strict back-to-back basis.
20. Assignment / Invoicing / Payment
VENDOR shall not assign the execution of the SUPPLY to third parties without PE&E's express written permission. In-voices shall be submitted in triplicate, bearing PE&E's project number, project name and PO number for each PO or supplementary PO and must comply with applicable tax laws. VENDORS domiciled in the European Union shall indicate their VAT identification number and shall submit a trading licence certificate, issued by the fiscal authority of their domicile or other competent authority. On invoices for the delivery of goods, VENDOR shall disclose the geographic delivery route which serves control purposes for VAT (“Umsatzsteuer”). Failure to comply with these requirements will be sufficient cause for PE&E to withhold payment of the affected invoice. Payments by PE&E shall have no bearing on VENDOR's liability, warranty obligations or guarantees. In the event of VENDOR´s default, PE&E may exercise all his contractual or statutory rights to withhold an appropriate portion of the purchase price.
21. Data Protection Clause
PE&E is entitled to process personal data relating to VENDOR within the scope and as far as permitted by the German Fed-eral Data Protection Act (Bundesdatenschutzgesetz).
22. Applicable Law and Jurisdiction
POs shall be governed solely by the substantive laws of the Federal Republic of Germany, to the exclusion of its rules on conflict of laws and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). In the event that any disputes arise out of or in relation with the PO or these General Conditions that cannot be settled amicably, the courts of Frankfurt am Main shall have jurisdiction. PE&E may also initiate legal proceedings against VENDOR before any court in which the law has vested jurisdiction to entertain dispute with VENDOR.
Should specific provisions of these General Conditions be or become void, invalid, or unenforceable, the validity of all other provisions shall remain unaffected.