§ 1 General provisions and applicability
- These General Terms and Conditions of Purchase (GTC) shall apply to all business relationships with our business partners and suppliers (hereinafter referred to as 'Sellers'). These GTC shall only apply if the Seller is a company (Section 14 of the German Civil Code (BGB)), a corporate body under public law or a special fund under public law.
- In particular, these GTC shall apply to agreements regarding the sale and/or delivery of chattels (hereinafter also referred to as 'Goods'), regardless of whether the Seller has produced the goods itself or procured them from third-party suppliers. These GTC shall also apply, in their current version, as a framework agreement for future agreements on the sale and/or delivery of Goods with the same Seller, without us being required to refer to them in each individual case.
- These GTC apply on an exclusive basis. Any differing, conflicting or supplementary general terms and conditions of the Seller shall only become a part of the contract if and insofar as we have expressly agreed to their applicability in writing. This consent requirement shall apply in all cases, including (for example) if we unreservedly accept deliveries by the Seller whilst being aware of the general terms and conditions of the Seller.
- Individual arrangements made with the Seller in an individual case shall always take precedence over these GTC. A written agreement and our written confirmation shall be decisive for the content of such arrangements.
- Legally relevant statements and notices to be submitted to us by the Seller after the conclusion of the agreement (e.g. setting deadlines, warnings, notices of withdrawal) must be made in writing in order to be effective.
§ 2 The conclusion of the contract
- At the earliest, our order shall become binding upon being submitted in writing or upon its confirmation. Before accepting the order, the Seller must notify us of any obvious errors (e.g. typing errors or miscalculations) or incompleteness in the order, including the order documents, for the purposes of correction and completion, otherwise the contract shall be deemed to have not been concluded.
- The Seller is obliged to confirm our order within a period of 1 week in writing or, in particular, to carry it out by sending the goods without reservation (acceptance). Delayed acceptance shall be deemed to be a new offer and shall require acceptance by us.
§ 3 Delivery Time and Delay in Delivery
- The delivery time specified by us in the order is binding. If the delivery time is not specified in the order and has not been otherwise arranged, it amounts to 2 weeks from the conclusion of the contract. The Seller is obligated to inform us immediately in writing if it is likely it cannot meet the agreed delivery dates - for whatever reasons.
- Should the Seller fail to render its service or deliver within the agreed delivery time or run overdue, our rights – particularly that of withdrawal and claims for damages – are determined in accordance with the statutory regulations. The provisions in Section 3 shall remain unaffected.
- Should the Seller delay, we may demand – in addition to further legal claims – lump sum compensation for damages resulting from delay amounting to 1% of the net price per ended calendar week, however a total of no more than 5% of the net price of the delayed delivery goods. We reserve the right to furnish evidence that we have suffered a higher degree of damages. The Seller reserves the right to furnish evidence that we have not suffered any damages or considerably less damages.
§ 4 Service, Delivery, Transfer of Risk, Default of Acceptance
- Without our prior written consent, the Seller is not entitled to have the service due from it provided by third parties (e.g. sub-contractors). The Seller bears the procurement risk for its services, unless it is a custom production.
- The delivery shall be made free to the door within Germany to the location specified in the order. If the destination is not specified and nothing has been arranged otherwise, the delivery must be made to our headquarters. The respective destination is also the place of performance (obligation to provide).
- A delivery note stating the date (issue and dispatch), contents of the delivery (item number and quantity) as well as our order ID (date and number) should be included with the delivery. Should the delivery note be missing or incomplete, we cannot be held responsible for delays in processing and payment resulting from this. A corresponding dispatch note containing the same content should be sent to us separately.
- The risk of accidental destruction or accidental deterioration of the object passes to us upon handing over at the place of performance. If an acceptance procedure has been agreed, this is decisive for the risk transfer. Furthermore, the statutory regulations on contracts for work and services shall apply accordingly in the event of an acceptance procedure. The same shall apply for handover and/or acceptance if we are in default of acceptance.
- The statutory regulations shall apply to any default in acceptance on our part. The Seller must also expressly offer its service to us in the event that an identified or identifiable calendar date is agreed for an action or contribution on our part (e.g. provision of material). In the event that we are in delay of acceptance, the Seller may request compensation for its extra expenses in accordance with statutory regulations (§ 304 BGB German Civil Code). If the Contract concerns a non-fungible item that is to be produced by the Seller, the Seller shall only be entitled to further-reaching rights if we have undertaken to contribute and the failure to contribute was our responsibility.
§ 5 Prices and Payment Terms
- The price specified in the order is binding. All prices include statutory value-added tax if this is not shown separately.
- Unless otherwise agreed in individual cases, the price includes all incidental expenses (e.g. proper packaging, transport costs including possible transport and liability insurance). The Seller must take back packaging material at our request.
- The agreed price is payable within 30 calendar days of completed delivery and performance (including any potentially agreed acceptance procedure) and receipt of a proper invoice. If we make the payment within 14 calendar days, the Seller shall grant us a 3% discount on the net amount of the invoice.
- We shall not be obliged to pay any overdue payment interest. The entitlement of the Seller to the payment of default interest shall remain unaffected. Statutory regulations shall apply to any default on our part. A warning from the Seller is necessary in any case.
- The rights of offsetting and withholding as well as the right to object to unfulfilled contracts are available to us to the extent permitted by law. In particular, we are entitled to withhold payments due as long as we are still entitled to claims against the Seller resulting from incomplete or defect services.
- The Seller is only entitled to an offsetting or withholding right as a result of legally established or undisputed counter-claims.
§ 6 Secrecy and Title Retention
- We reserve the right to ownership and copyright for images, plans, diagrams, calculations, instructions, product descriptions and other documents. These types of documents should only be used for the contractual service and should be returned to us upon completion of the contract. Secrecy should be maintained vis-à-vis third parties as regards these documents and including after completion of the contract. This secrecy obligation shall only expire if and to the extent that the knowledge contained in the documents supplied has become public knowledge.
- The previous provision applies accordingly to substances and materials (e.g. software, finished and half-finished products) as well as to tools, templates, samples and other objects that we provide the Seller with for production. These kinds of objects should – so long as they are not processed – be stored separately at the expense of the Seller and insured to the usual extent against damage and loss.
- Any processing, mixing or combining of objects supplied shall be undertaken by Seller for us. If during the processing, mixing or combination with items of third parties their property right should persist, we thus acquire co-ownership of the new items at the ratio of the value of our provided item to the other items.
- The transfer of goods to us shall take place unconditionally and regardless of the payment of the price. At any rate, all forms of amplified or extended reservation of title shall be excluded so that a reservation of title declared effective on the part of the Seller shall only be valid until payment for the goods delivered to us and only for these.
- In the event of insolvency, offsetting with mutual claims is only permissible if the claims were offset against each other before the opening of insolvency.
§ 7 Defective Delivery
- The statutory regulations apply to our rights in the event of defects in goods and title and other violations of obligations by the Seller, unless otherwise specified in the following.
- In accordance with statutory regulations, the Seller assumes liability in particular for the goods to be in the agreed condition when it comes to the risk transfer to us. Regarded as an agreement on the condition in any case are those product descriptions which – particularly by means of designation or reference in our order – form the object of the respective contract or which have been incorporated in the contract in the same way as these GTC. Here it makes no difference whether the product description comes from us, from the Seller or from third parties.
- By way of derogation from § 442 Section 1 Clause 2 of the BGB (German Civil Code), we are unrestrictedly entitled to claims arising from defects even if the defect remains unknown to us on conclusion of a contract as a result of gross negligence.
- The statutory regulations of the Commercial Code (§§ 377 and 381 HGB) shall apply to the commercial duty to examine and requirement to give notice of defects with the following stipulation: Our duty to examine is restricted to defects that come to light during our incoming goods inspection through external examination including of the delivery notes as well as during our quality inspection using a random sample test (e.g. transport damage, wrong delivery and short delivery). If an acceptance procedure has been agreed, there is no duty to examine. Apart from that, it depends on to what extent an examination, taking into the account the circumstances of the individual case, is advisable according to proper business practice. Our obligation to give notice of subsequently discovered defects remains unaffected. In all cases our objection (notice of defect) shall be regarded as immediate and timely if it is received within ….. working days by the Seller.
- The costs expended by the Seller for the purposes of examination and subsequent improvement shall be borne by the latter even if it turns out that there was no defect present. Our liability for damages shall remain unaffected in the event of an unjustified request for the elimination of defects; in this respect we shall however only assume liability if we recognised or were grossly negligent in failing to recognise that no defect was present.
- If the Seller should fail to fulfil its obligation to supplementary performance – by rectifying the defect (subsequent improvement) or by delivering a defect-free item (replacement) as chosen by us – within an appropriate period set by us, we may eliminate the defect ourselves and request compensation for the expenses necessary for this and/or an appropriate advance payment from the Seller. If the Seller’s supplementary performance fails or if this performance is unacceptable for us (e.g. on account of particular urgency, threat to operational safety or impending occurrence of disproportionate damage) no deadline need be set; the Seller must be notified immediately, beforehand if possible.
- Otherwise, in the event of a defect in goods or title we are entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory regulations. We are also entitled to compensation for damages and expenditure in accordance with the statutory regulations.
§ 8 Producer Liability
- Our legally determined rights of recourse within a supply chain (Supplier’s Recourse as defined in §§ 478 and 479 of the German Civil Code BGB) are available to us unrestrictedly alongside claims arising from defects. In particular, we are entitled to demand exactly the same kind of supplementary performance (subsequent improvement or replacement) from the Seller as that which we owe to our customer in individual cases. Our legal option (§ 439 Section 1 of the German Civil Code BGB) shall not be restricted by this.
- Before we recognise or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with §§478 Section 3 and 439 Section 2 of the German Civil Code BGB), we shall inform the Seller and, giving a brief account of the facts, ask for a written comment. If the comment is not provided within a reasonable time and no mutually agreeable solution is brought about, the claim for defects effectively allowed by us shall be regarded as owed to our customer; in this case, the Seller is responsible for providing counter evidence.
- Ours claims arising from supplier’s recourse shall apply even if the goods have been further processed before being sold to a consumer by us or one of our customers, e.g. by means of integration into another product.
§ 9 Produzentenhaftung
- If the Seller is responsible for product damage, it must indemnify us against the claims of third parties insofar as the cause lies within its area of control and organisation and that it is itself liable vis-à-vis third parties.
- Under its obligation to indemnify, the Seller must, in accordance with §§ 683 and 670 of the German Civil Code BGB, reimburse expenses that result from or in connection with claims asserted by third parties including product recalls carried out by us. We shall inform the Seller of the content and scope of the recall measures to be carried out - as far as can be reasonably expected - and give it the opportunity to comment. Further-reaching legal claims shall remain unaffected.
- The Seller must take out a product liability insurance policy with a lump-sum coverage of at least 5 M EUR per personal/property damage and maintain it.
§ 10 Limitation
- The reciprocal claims of the contractual parties shall become statute-barred in accordance with the legal provisions unless otherwise specified in the following.
- By way of derogation from § 438 Section 1 No 3 of the German Civil Code BGB, the general limitation period for claims for defects is 3 years from transfer of risk. If an acceptance procedure has been agreed, the limitation begins upon acceptance. The 3-year limitation period applies accordingly to claims arising from title defects, whereby the legal limitation period for in rem claims to return of third parties (§ 438 Section 1 No. 1 of the German Civil Code BGB) shall remain unaffected; claims arising out of defects in title shall under no circumstances be statute-barred so long as the third party can still assert the right against us – in particular in the absence of limitation.
- The limitation periods of commercial law, including the aforementioned extension, shall apply to the extent permitted by law – to all contractual claims resulting from defects. To the extent that we are also entitled to non-contractual claims for damages because of a defect, the regular statutory limitation period shall apply to this (§§ 195 and 199 of the German Civil Code BGB), unless the application of the limitation periods of commercial law leads to a longer limitation period in individual cases.
§ 11 Applicable Law and Place of Jurisdiction
- The law of the Federal Republic of Germany shall apply to these GTC and all legal relations between us and the Seller, excluding all international and supranational (contractual) legal systems, especially the UN Convention on Contracts for the International Sale of Goods. The pre-requisites and effects of the reservation of title are subject to the law at the respective storage location of the item, if, under said law, a choice of law made in favour of German law is not permitted or is void.
- If the Seller is a merchant in terms of the German Commercial Code, a corporate body under public law or a special fund under public law, our company headquarters are the sole – even international – place of jurisdiction for all disputes arising from this contractual agreement. We are however also entitled to take legal action at the place of performance of the delivery obligation.
Should this English GTC contradict the German GTC, the German ones shall apply in the case of doubt.