Section 1 Scope of application, general
(1) For all orders and other contracts with our suppliers or contractors (hereinafter collectively referred to as “suppliers”) in the field of purchase, our following General Terms and Conditions of Purchase (GTCP) shall apply exclusively if the supplier is an entrepreneur, a legal entity under public law or a special fund under public law (Sec. 310 I BGB [German Civil Code]).
(2) (2)Our General Terms and Conditions of Purchase shall also apply if we accept or pay for the delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the supplier; such conflicting or deviating terms and conditions shall only be binding on us if we have expressly agreed to their validity in writing. A written contract or our confirmation in writing is decisive for the content of side agreements and additions to our General Terms and Conditions of Purchase.
(3) Our General Terms and Conditions of Purchase in their respective version shall also apply as a framework agreement for all future purchasing transactions with the supplier, without the need to make reference to them in each individual case. We will inform the supplier immediately of any changes to our General Terms and Conditions of Purchase.
Section 2 Request, offer and order
(1) Our requests are non-binding until we place a binding order which is only valid in writing. Results of oral discussion or telephone agreements also require confirmation in writing in order to be effective.
(2) The supplier’s offer shall be made free of charge and shall not constitute any obligation on our part; unless otherwise agreed in writing, the offer shall be made in writing and shall comply exactly with our request in terms of quantity, quality of the goods and other details; clear reference shall be made to any deviations.
(3) Orders must be confirmed immediately in writing by the supplier, specifying our order number. We are entitled to cancel the order if the supplier does not confirm the order within one week of receipt. Delivery call-offs within the framework of order and call-off planning shall become binding if the supplier does not object to the delivery call-off in writing within two working days of receipt.
(4) If the supplier’s confirmation deviates from our order, a contract shall only come into existence if we expressly agree to the change in writing. Payments or the acceptance of deliveries and services shall not be deemed consent.
Section 3 Prices
(1) Unless otherwise agreed in writing, the prices contained in the order are fixed prices which remain valid even if the price basis (wages, material prices, etc.) changes. We do not accept price reservations of any kind. Price changes require our express written consent.
(2) Unless otherwise agreed in writing, the prices include all services and ancillary services of the supplier as well as all ancillary costs (e.g. packaging, transport costs, customs clearance, transport and liability insurance, etc.) and are carriage-free. If in individual cases a price “ex works” in text form is agreed, we will only pay the lowest freight costs.
Section 4 Delivery conditions
(1) Our order number and the date of the order must be stated in all correspondence in all invoices and all shipping documents (vehicle stickers, consignment notes, delivery notes, parcel cards, etc.). A note on the place of unloading shall also be included upon request. In the case of intra-company orders for technical goods, the supplier must also state the customs tariff number on the invoice. It shall ensure that the goods to be delivered are not subject to any national or international export restrictions. If the nonobservance of the information results in delays or misdirection, the supplier shall be liable for the resulting damage (demurrage, switching charges, export licences, etc.).
(2) The delivery date or delivery time stated in the order or order confirmation shall be binding. The date on which the goods arrive at the destination specified by us shall be decisive for compliance with the delivery date or delivery time.
(3) If delivery occurs earlier than agreed, we reserve the right to refuse acceptance or to return the goods at the supplier’s expense. Furthermore, we may store the goods with us until the delivery date at the expense and risk of the supplier until the goods can be stored at the place provided by us at the time of conclusion of the contract on the delivery date.
(4) The supplier shall bear the procurement risk for its services unless otherwise agreed in writing in individual cases (e.g. limitation to stock).
(5) Delivery shall be made “carriage-free” to the place of destination specified by us in accordance with our specifications. If the place of destination is not specified and nothing else has been agreed in writing, delivery shall be made to our registered office in Malsch. The respective destination is also the place of performance (obligation to deliver).
(6) The supplier may only assign delivery obligations to subcontractors with our express written consent.
(7) The delivery must comply exactly with the order in terms of quantity and quality. Under-deliveries or overruns require a separate agreement in written form. Partial deliveries are only permissible with our prior consent in writing. The unconditional acceptance of a delivery shall not constitute a waiver of the claims for compensation to which we are entitled on account of this delivery.
(8) As soon as the supplier realises that it may not be able to execute an order on time, in whole or in part, irrespective of the causes of the delay, the supplier must notify us immediately in writing, stating the reasons and the expected duration of the delay. If the notification is made immediately, we shall grant the supplier a reasonable period of grace, after the expiry of which we shall be entitled to withdraw from the contract. If the supplier fails to notify us immediately, it may not claim to have had an obstacle to perform; in this case we shall be entitled to withdraw from the contract in whole or in part without setting a grace period even if the delay is not attributable to us. We shall also be entitled to demand a contractual penalty of 0.5%, but no more than 5% of the respective order value, for each commenced week of delay in delivery in the event of delays in delivery following prior written warning to the supplier. We may demand the contractual penalty in addition to performance and as a minimum amount of damages owed by the supplier in accordance with the statutory provisions. The assertion of further damages shall remain unaffected.
Section 5 Packaging and shipping
(1) The packaging of all goods must be carried out with the utmost care, so as to avoid transport damage as far as possible. The supplier shall be liable for ensuring that all deliveries subject to a labelling obligation are properly labelled. The labelling must also be included in the order confirmation and all shipping documents.
(2) In accordance with the packaging regulations, the supplier is obliged to take back the transport packaging at its own expense. We are not obliged to store, return or reimburse packaging material (such as pallets and the like).
Section 6 Force majeure
Force majeure, breakdowns for which we bear no culpability, disturbances, official measures and other unavoidable events shall release us from the obligation of timely acceptance for the duration of their occurrence. During such events and within two weeks of their end, we shall be entitled - without prejudice to our other rights - to rescind the contract in whole or in part, provided that such events are not of insignificant duration and that our requirements are substantially reduced due to the need to procure goods elsewhere. The same shall apply in the case of industrial disputes.
Sections 7 Transfer of risk and retention of title
(1) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery to the destination specified by us. If acceptance has been agreed in writing, this shall be decisive for the transfer of risk.
(2) The statutory provisions shall apply to the occurrence of our default of acceptance. However, the supplier must also expressly offer its services to us if a specific or determinable calendar period has been agreed for an action or cooperation on our part. If the contract relates to an unrepresentable item to be manufactured by the supplier, the supplier shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
(3) A retention of title of the supplier shall only become part of the contract if the retention of title expires upon payment of the price agreed for the reserved goods and we are authorised to resell and further process the goods in the ordinary course of business. Any further retention of title (in particular extended, expanded or forwarded retention of title) on the part of the supplier shall not be accepted.
Section 8 Invoice and payment terms
(1) Unless otherwise agreed in writing, the agreed price is due for payment within 14 days with 2% discount or within 30 calendar days without deduction as of receipt of a proper invoice. If the invoice has already been received before delivery or acceptance, the payment period shall not commence until the goods have been handed over or accepted, but in no case before an agreed delivery date; if incomplete or defective goods have been handed over, the payment period shall commence only after complete fulfilment.
(3) We do not owe any interest on maturity. The supplier’s right to interest on arrears shall remain unaffected by this. In any case, however, a reminder from the supplier is required for the occurrence of our default.
(4) We shall be entitled to set-off and retention rights as well as the defence of non-performance of the contract to the extent permitted by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims from defective or delayed deliveries against the supplier.
(5) The supplier shall only have a right of set-off or retention if counterclaims have been legally established or are undisputed. The supplier may only dispose of its claim against us by assignment, pledging or in any other way - e.g. collection of the claim by third parties - if it has obtained our prior written consent.
(6) Place of performance for our payment obligation is our registered office in Malsch.
Section 9 Warranty
(1) The supplier’s warranty obligation shall be governed by the statutory provisions unless otherwise specified below.
(2) Product descriptions of the supplier as well as product information referenced in our order shall also be deemed to be an agreement on the quality of the goods for which the supplier is responsible, according to the statutory regulations. If we inform the supplier of the purpose for which the goods are to be used, this shall be regarded as a use presumed under the contract within the meaning of Sec. 434 Para. 1 S. 2 No. 1 BGB (German Civil Code).
(3) Our obligation to inspect shall be limited to defects which become apparent during our incoming goods inspection under external inspection, including the delivery documents and the performance and analysis of random samples. We shall notify the supplier of obvious defects immediately in writing, but no later than within 10 working days of receipt of the delivery by us. This shall not affect our obligation to give notice of hidden defects which become apparent later and for which our notice of defects is deemed to be immediate and timely if it is received by the supplier within eight working days of discovery.
(4) The general period of limitation for claims based on defects is three years from the transfer of risk, except in cases of fraudulent intent. This limitation period shall also apply to claims arising from defects of title; the statutory limitation period for claims in rem for surrender by third parties pursuant to Sec. 438 para. 1 no. 1 BGB shall remain unaffected by this. Furthermore, claims arising from defects of title shall not become statute-barred as long as a third party can still assert its right against us, in particular in the absence of a statute of limitations.
(5) The supplier shall be liable for replacement deliveries or repair work to the same extent as for the original delivery item. In the event of subsequent performance, the warranty period shall be extended by the period in which the delivery item cannot be used, in accordance with the contract.
(6) If the delivery item is or becomes defective during the warranty period or if the absence of a warranted characteristic becomes apparent, we may, at our discretion and within a reasonable period of time, demand the removal of the defect or the delivery of a defect-free item or reduction of the order price or withdraw from the contract, as stipulated by statutory provisions. The supplier shall reimburse us for any damage incurred by us as a result of the defective delivery, in accordance with the statutory provisions. A rectification shall be deemed to have failed after the first unsuccessful attempt.
(7) If the supplier does not fulfil its obligation to rectify within a reasonable period set by us, we shall be entitled to remedy the defects ourselves or by a third party at the expense of the supplier and to invoice the costs required to remedy the defect. If rectification has failed or is unreasonable for us due to particular urgency, no deadline shall be set.
(8) Deviating from Sec. 442 I S. 2 BGB (German Civil Code), we shall also be entitled to assert claims for defects without restriction if the defect remained unknown to us as a result of gross negligence upon contract conclusion.
(9) In any case, the supplier shall also be liable for ordinary negligence.
Section 10 supplier recourse
(1) We shall be entitled to our legally determined recourse claims within a supply chain (supplier recourse according to Sec. 478 BGB) without restriction, in addition to the claims arising from defects. In particular, we shall be entitled to demand from the supplier exactly the type of subsequent performance (rectification of defects or replacement delivery) which we owe to our customer in the individual case. Our legal right of choice (Sec. 439 I BGB) is not restricted by this.
(2) Our claims arising from supplier recourse shall also apply if the goods have been further processed by us or one of our customers prior to their sale to a consumer.
(3) Before we acknowledge or fulfil a claim for defects asserted by our customer, we shall notify the supplier and request a written statement, briefly stating the facts of the case. If the statement is not made within a reasonable period, the claim for defects actually granted by us shall be deemed to be owed to our customer; in this case, the supplier shall be obliged to provide proof to the contrary.
Section 11 Product liability, sub-suppliers
(1) The supplier shall be obliged to indemnify us upon our first written request against claims for damages by third parties due to product damage if and to the extent that the damage was caused by a defect in the supplier’s delivery. In the case of liability based on fault, this shall only apply if the supplier is at fault. If the cause of the damage falls within the supplier’s sphere of control and organisation, the supplier must prove that it is not at fault.
(2) In cases covered by the preceding paragraph, the supplier shall be obliged to reimburse us for any expenses arising from or in connection with a recall campaign carried out by us - also as a precaution. As far as possible and reasonable, we shall inform the supplier of the content and scope of the recall actions and give the supplier the opportunity to comment. Further legal claims shall remain unaffected.
(3) The supplier is obliged to maintain product liability insurance at its own expense with a sufficient sum insured of EUR 3,000,000.00 per personal injury or property damage. The supplier shall send us a copy of the liability policy at any time upon request.
(4) The supplier shall assume responsibility for the fault of its subcontractors as if it were its own fault.
Section 12 Quality assurance and spare parts
(1) The supplier undertakes to perform a permanent quality assurance of its goods by applying suitable quality assurance systems - e.g. DIN EN ISO 9000 et. seqq. - during and after the manufacture of the goods to be delivered and to provide us with evidence upon request. In particular, the supplier shall check prior to each delivery that the delivery items are free of defects and comply with the agreed technical requirements.
(2) The supplier is obliged to keep spare parts for the products delivered to us on reasonable terms for a period of at least 10 years after delivery. If the supplier intends to discontinue the production of spare parts for the goods delivered to us, the supplier shall inform us immediately after the decision to discontinue such production. Subject to the first sentence, this decision must be taken at least 12 months before production is discontinued.
(3) The supplier shall notify us of any changes to the material composition, product description, test methods and equipment, production site, prescribed storage conditions, certificates of origin of goods, supplier’s declarations and safety data sheet without being requested to do so, insofar as these may be of significance to us. After receipt of the notification of change, we have the opportunity to place a final order under the original conditions for at least six months.
(4) If the supplier violates an obligation according to this Section 12, the supplier shall be obliged to compensate for the resulting damage.
Section 13 Provision of materials
(1) Material provided by us shall remain our property. They shall be stored, designated and administered separately and free of charge. Their use is only permitted for our orders. In the event of depreciation in value or loss, the supplier must pay compensation.
(2) The processing of material provided shall be carried out exclusively for us. It is agreed that we shall become co-owners of the products manufactured using our materials in the ratio of the value at the time of the order to the value of the entire product. The handover shall be replaced by the agreement that the products shall remain in the possession of the supplier until the agreed delivery date and shall be stored separately for us.
(3) At our request, the supplier must return the materials provided by us without delay - at the latest within one day. If the supplier has co-ownership, the goods shall be handed over concurrently with payment of the coownership share.
Section 14 Tools
(1) Tools which we leave to the supplier shall remain our property. The supplier is only entitled to dispose of the tools or to relocate them with our prior written consent. The tools are to be marked as our property by the supplier. The supplier may use the tools exclusively for the fulfilment of our orders. At our request, the supplier must return the tools provided by us without delay - at the latest within one day. The supplier shall in no case be entitled to a right of retention.
(2) The supplier shall bear the costs for the maintenance, repair and servicing of the tools. If the supplier culpably causes a reduction in the value of the tool, the supplier must compensate us.
Section 15 Services
(1) To the extent we engage the supplier with services, such as creating instructions or construction planning or programming software, the supplier guarantees that it is fully entitled to the industrial property rights (copyright, patent rights, etc.) of the work results and that the rights of third parties are not infringed during the production of the work results and their exploitation, which may lead to claims against us. The supplier shall indemnify us in full against all third party claims asserted against us on account of the exploitation of the work results.
(2) The supplier transfers to us an exclusive right to use the work results in tangible and intangible form within the framework of the statutory protection period; this right is unlimited in terms of time, content and location. The supplier is prohibited from using the work results in the same or only slightly modified form for other clients. The right to exercise secondary and subsequent rights is also co-transferred. The right of use includes, in particular, the right of reproduction, the right of distribution and the right of exhibition, the right of lecture and demonstration, the right of public accessibility (in particular on the Internet), the right of broadcasting, the right of reproduction on image and sound carriers and the right of reproduction in radio broadcasts as well as unknown types of use. We may also use the results of our work in a form other than that in which they were delivered, in particular we may process, have processed, modify, imitate, use them in whole or in part with other results of our work and distribute them in a processed form at our discretion.
(3) We may transfer the rights of use to the work results in whole or in part to third parties or grant them rights of use without requiring the consent of the supplier.
Section 16 Export control, customs
(1) The supplier assures that it will comply with the applicable export control and sanctions regulations and laws of the Federal Republic of Germany, the European Union, the United States of America and other legal systems. The supplier will give us all information in advance that we require to comply with the export control and sanctions regulations and laws.
(2) For goods subject to approval, the supplier shall provide us with the necessary information prior to the first delivery (in particular description of the goods, export list numbers including the Export Control Classification Number according to the U.S. Commerce Control List (ECCN), commercial policy origin of the goods, statistical goods number (HS code), etc.).
(3) The supplier is obliged to inform us immediately of any changes to the approval obligations of its contractual products delivered to us due to technical or legal changes or official findings.
Section 17 Rights of rescission and termination, compliance
(1) In addition to the statutory rights of rescission, we shall be entitled to rescind the contract if a material deterioration in the financial circumstances of the supplier occurs or threatens to occur and the fulfilment of a delivery obligation towards us is thereby jeopardised. This shall in particular be the case if the supplier applies for insolvency proceedings to be instituted against its assets or its business or is rejected for lack of assets. The same shall apply mutatis mutandis to the existence of a continuing obligation with the proviso that an extraordinary right of termination without notice shall replace the right of rescission./p>
(2) The supplier undertakes not to commit any acts or omissions which, irrespective of the form of participation, could lead to disciplinary action or criminal prosecution, in particular for corruption or violation of antitrust and competition law, by the supplier, by persons employed by the supplier or by third-parties commissioned by the supplier. Furthermore, the supplier warrants to comply with the applicable laws governing the general minimum wage and to oblige subcontractors commissioned by the supplier to the same extent. The supplier shall also comply with the statutory regulations on dealing with employees, environmental protection and occupational safety. In the event of serious infringements by the supplier, we reserve the right to withdraw from existing contracts or to terminate them without notice.
Section 18 Secrecy, copyrights and property rights
(1) We retain all property and protection rights and copyrights to all images, drawings, calculations, price lists, plans, drawings and other documents that are transferred by us to the supplier. The supplier may only use these for the contractual purpose. Before passing them on to third parties, the supplier requires our express written consent, unless a mandatory law stands in the way of this. At our request, the supplier must return them to us immediately.
(2) We and the supplier will treat the information exchanged as confidential in each case to the extent required for processing the contract, also after the end of the contract, unless the information of the respective other party is already known at the time of conclusion of the contract or becomes known subsequently, without obligation to maintain confidentiality, or the respective other party is obligated to disclose it based on a statutory obligation.
(3) The supplier shall be responsible for ensuring that the delivery, use and sale of the goods do not infringe any industrial property rights of third parties and shall indemnify us upon our first written request against possible claims asserted by third parties arising from infringements of industrial property rights.
Section 19 Place of jurisdiction, applicable law
(1) The place of jurisdiction for disputes arising from the business relationship is our registered office (Malsch). However, we can also sue the supplier in the courts of its general place of jurisdiction.
(2) The law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods in the respectively valid version dated 11 April 1980 – CI