1. Application
1.1 These General Terms and Conditions of Purchase ("GTC") shall govern the purchase of non-production-purposed goods ("Goods") by Dräger* from a supplier ("Supplier") and shall form an integral component of any enquiry, offer, order, contract and agreement relating to such non-production item (“NPI”) purchase.
1.2 Deviating terms and conditions - unless agreed to in writing - do not apply. Dräger and the Supplier may agree to terms and conditions deviating from these GTC, such terms shall then have priority over these GTC. These GTC apply even if Dräger accepts Goods with knowledge but without actual acceptance of deviating terms and conditions of the Supplier.
2. Offers
2.1 The Supplier's offer shall be valid for any company affiliated with Dräger from receipt of the offer by Dräger.
2.2 Any offer by the Supplier must be accepted by Dräger in writing. The Supplier shall confirm acceptance within five working days in writing. Should the Supplier not confirm acceptance within five working days in writing, Dräger may cancel its acceptance.
3. Goods specification
3.1 The basis for the ordering of Goods shall be the item numbers, revision indices and/or material specifications of Dräger, which the Supplier shall use in all delivery papers and correspondence.
3.2 The Supplier shall request Dräger without undue delay for clarification in the event of unclear item numbers and/or material specifications.
4. Modifications
4.1 Dräger may from time to time and without notice modify specifications (e.g. drawings, packaging), dates and delivery destinations. The Supplier shall implement such modifications within a reasonable period.
4.2 In the event of force majeure, Dräger may suspend or cancel Goods.
4.3 Modifications to the Supplier's Goods by the Supplier that may affect the form, fit, function or certification must be notified to Dräger no less than four months prior to the desired commencement date. Modifications shall not be implemented without Dräger's written consent.
5. Prices
5.1 Goods shall be delivered to Dräger's office as the delivery destination, unless Dräger specified a different delivery destination. Agreed prices shall be fixed prices and shall cover all costs to be borne by the Supplier, including but not limited to road / rail or airworthy packing, logistics, related service and VAT at the rate prevailing at the time of purchase order signature & etc, unless otherwise agreed in writing.
6. Delivery and default
6.1 Goods shall be appropriately packaged by the Supplier at its expense taking into account the nature of the Goods and the mode of transportation.
6.2 The Supplier may not render partial delivery or performance without Dräger's prior written consent.
6.3 Any indicated delivery dates shall be binding. If no date is specified, the Goods shall be delivered within ten working days following receipt of the order by the Supplier.
6.4 The delivery date shall be the date on which Dräger receives the Goods and accept the related service（if applicable）.
6.5 Any retention of title by Supplier shall be invalid.
7. Acceptance
The Parties shall conduct a formal acceptance of Goods. the Supplier shall furnish the Dräger with any and all drawings and other technical documentation concerning the subject matter of the Agreement. Supplier also provide them on data carriers in a common format and transfer title therein to the Dräger. In the event of material defects of Goods, the Dräger may refuse acceptance until the defects are rectified; the Supplier may and shall rectify the defects within a reasonable period. Both parties shall prepare and sign the acceptance documents. Upon acceptance,
8. Contractual penalty
Should the Supplier culpably miss an agreed date for Goods, it shall owe a contractual penalty of 3% of the total price for each commenced week by which the relevant date is exceeded, up to a maximum, however, of 10% of the total price. Additional rights of Dräger shall remain unaffected. Any contractual penalty shall be set off against compensatory damages claims on the part of Dräger based on the same default event.
9. Payments
9.1 Payments are rendered within 30 business days, after the due date of payment and receipt of both the invoice and the Goods.
9.2 Payment shall be due and payable only pursuant to a due and proper invoice.
9.3 Payments by Dräger shall not constitute a confirmation that the Goods conform to the specifications or are free and clear of defects.
10. Liability for defects (warranty)
10.1 The warranty period for Goods shall be 36 months after acceptance (if applicable) of the Goods.
10.2 Goods are considered defective in particular if delivered Goods deviate from specifications, drawings or samples that Dräger has provided to the Supplier
10.3 If Goods are defective, the Supplier shall, at Dräger's choice, rectify the defect or effect substitute delivery. If the rectification or substitute delivery fails, Dräger may demand a reasonable price reduction or fully/partially rescind the order. Other compensatory damages claims by Dräger shall remain unaffected thereby.
10.4 Defective Goods shall be sent back to the Supplier at the Supplier's expense.
11. Liability
11.1 The Supplier shall be liable for damages (including financial damages) caused by defective Goods or a violation of contractual obligations by the Supplier, unless such damage was caused without Supplier’s negligence or intent. This shall include reasonable costs for legal representation. The Supplier shall be responsible for negligence or intent by Supplier’s sub-suppliers.
11.2 If products by Dräger are recalled to avert risks to life and limb because Goods delivered by the Supplier are defect, then the Supplier is liable for expenditures. Dräger shall inform the Supplier without undue delay of potential recall actions and shall take the Supplier's interests into account.
12. Intellectual property rights
12.1 For Goods manufactured or provided custom-made for Dräger, the Supplier shall transfer to Dräger any and all transferable intellectual property rights, in particular, rights in inventions and works subject to copyright protection. The Supplier shall, upon first request, provide Dräger free of charge with associated documents, models and drawings. The Supplier shall grant Dräger free of charge an unlimited, transferable licence in any non-transferable rights. To the extent permitted by law, Dräger may process underlying Goods.
12.2 The Supplier warrants that its Goods shall not infringe any third party industrial property rights. If third party industrial property rights are infringed, the Supplier shall remedy the infringement of industrial property rights by modifying the Goods, acquiring relevant licences or in another manner. Otherwise, Dräger may rescind the order. Other rights on the part of Dräger shall remain unaffected.
12.3 The Supplier may not use trademarks and company designations of Dräger without prior written consent.
13. Confidentiality
The Supplier may not inform third parties of the contractual relationship with Dräger unless it is obliged to do so by public authorities or operation of law.
14. Tools
14.1 Should Dräger pay for the Supplier for tools that the Supplier uses for Goods, the Supplier shall transfer ownership of such tools to Dräger, including any accessories, plans, documentation, etc. The Supplier shall provide Dräger constructive possession of the relevant tool and accessories.
14.2 The Supplier shall mark any tools owned by Dräger permanently with "Dräger" and Dräger's inventory and material number. The tools shall be stored appropriately, protected against any type of damage and maintained in a functional condition. The Supplier shall maintain the tools at its own cost.
14.3 Tools owned by Dräger shall be used only to manufacture Goods for Dräger. The Supplier shall return the tools to Dräger upon first request to this effect.
15. Forum and applicable law
15.1 The contractual relationship between Dräger and the Supplier shall be governed by law of Hong Kong. The United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
15.2 Forum is the competent Court where Dräger resides. At its choice, Dräger may also bring actions at the Supplier's registered office.