General Terms and Conditions of Purchase
1. Validity of our Terms and Conditions of Purchase
1.1 We place our orders on the basis of our General Terms and Conditions of Purchase. Other terms and conditions of the contractor or supplier shall not become part of the contract, even if we, the client, do not expressly object to them.
However, we agree to a simple retention of title by the supplier until payment is made for a delivery.
On the first delivery on the basis of these Terms and Conditions of Purchase, the supplier shall recognise the currently applicable version of the Terms and Conditions as agreed for all further contractual relationships.
Our Terms and Conditions of Purchase shall also apply if we accept the supplier's delivery without reservation in the knowledge that the supplier's terms and conditions conflict with or differ from our Terms and Conditions of Purchase.
1.2. Our Terms and Conditions of Purchase shall apply only to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).
1.3. Our Terms and Conditions of Purchase shall also apply to all future transactions with the supplier.
2. Order and conclusion of contract
2.1. Supply contracts, orders and acceptance, delivery schedules as well as amendments and supplements to them must be made in writing. Our orders, call-offs as well as amendments and supplements to them can also be made using remote data transmission, machine-readable data carriers or electronic means.
We shall generally be bound by our order for a period of four weeks. In the case of orders placed by electronic means we shall be bound by our order for a period of one week. After these periods have expired, we shall be entitled to cancel our order. Claims of the supplier based on an effective cancellation shall be excluded.
2.2. In the event of acceptance, the supplier must confirm the order in writing, stating the article number of the order and the article description. If we place our order by electronic means, the supplier may also confirm the order by electronic means. Call-offs shall become binding within one week of receipt at the latest unless the supplier objects in writing or by electronic means within this period.
2.3. We reserve the proprietary rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our express consent. They are to be used only for checking our order documents or production on the basis of our order; after completion of the order or if no contract is concluded, the supplier shall return the documents to us without being asked to do so. They must be kept secret from third parties. In particular, the provisions of clause 12 of these General Terms and Conditions of Purchase shall apply in addition.
2.4. We are entitled to change the time and place of delivery, as well as the type of packaging, at any time by written notification with a notice period of at least 10 working days before the agreed dispatch date. The same shall apply to changes to product specifications, insofar as these changes can be implemented within the framework of the supplier's normal production process without considerable additional expenditure; in these cases the notice period stated in the above sentence shall be at least the currently agreed/valid delivery time plus 10 working days. We shall reimburse the supplier for any proven and reasonable additional expenditure incurred as a result of the change. If such changes result in delivery delays that cannot be avoided with reasonable efforts in the supplier's normal production and business operations, the delivery date originally agreed shall be postponed accordingly. The supplier shall notify us in writing of any additional costs or delivery delays to be expected according to a careful assessment; this shall be done in good time before the delivery date but at least within 10 working days of receiving our notification in accordance with sentence 1.
2.5. The supplier only may place orders with subcontractors if we have given our consent.
2.6. Goods or parts of goods that are not mentioned in the order but are essential for the safe and efficient operation of the goods shall be deemed to be part of the delivery item and owed by the supplier together with this item.
2.7. If the delivery item contains software, we shall be granted the right to use the software throughout the company without special remuneration, to reproduce it at will and to transfer it to third parties worldwide together with the delivery item for a fee or free of charge. We are entitled to reverse translate the software for the purposes of maintenance and further development.
3. Prices and terms of payment
3.1. The prices stated in our order are fixed prices and shall apply, free to our works, unless otherwise agreed in writing, They include all packaging, transport and insurance costs and all other costs of delivery free to our works, unless we expressly agree otherwise in writing with the contractor.
3.2. Subject to delivery of the goods or acceptance of the delivery, payment shall be made within fourteen (14) calendar days of receipt of a verifiable invoice stating the order number and order date with a three per cent discount or within thirty (30) calendar days net. The discount period shall commence on the invoice date, but at the earliest on the day on which we receive the delivery.
3.3. Each invoice must contain a reference to the order and the delivery note. If this information is missing, we cannot guarantee that the agreed terms of payment will be honoured. We retain the right to deduct discounts and will not be in default of payment. The goods delivered in accordance with the order shall be paid for according to the quantities ascertained by us after receipt of the goods.
3.4. Without our prior written consent, which may not be unreasonably withheld, the supplier shall not have the right to assign its claim against us or to have it collected by third parties. This shall not apply to monetary claims within a commercial transaction (Section 354a of the German Commercial Code (HGB). However, we agree to an advance assignment in the case of an extended retention of title.
3.5. We shall have rights of set-off and rights of retention to the extent permitted by law.
3.6. In the event of default of payment, we shall owe default interest at a rate of five percentage points above the base interest rate in accordance with Section 247 BGB.
4. Delivery
4.1. All deliveries shall be made with proper packaging to the delivery address specified by us.
4.2. Each delivery shall be accompanied by a delivery note containing all order-related details such as the order no., part no., part designation, quantity, individual weights or dimensions.
4.3. Should we have expressly undertaken in writing to bear the costs in individual cases, we shall determine the carrier. The freight shall be declared in the consignment note in such a way that the cheapest permissible freight rate is applied to the consignment. The contractor shall notify us in writing when the goods are ready for dispatch. In this case, we shall take out transport insurance and bear the resulting costs.
4.4. If we bear the costs of packaging under an express agreement, we will pay only the cost price, excluding deposits. We reserve the right to return bulky packaging items, in particular containers, barrels, crates etc. carriage paid to the contractor against a corresponding credit note after they have been emptied and without prejudice to wear and tear due to transport or other causes. Any arrangements that deviate from the Act Governing the Sale, Return and High-Quality Recycling of Packaging (Packaging Act (VerpackG)) shall require our prior written consent.
4.5. The contractor shall supply all documents required for acceptance, operation, maintenance and repairs, in particular test reports, tool certificates, drawings, plans, operating instructions and repair manuals, free of charge in reproducible form.
4.6. Our Goods Receiving Department is open Monday to Thursday from 7:00 to 14:00 hours and Friday from 7:00 to 12:00 hours.
5. Delivery time, delay and force majeure
5.1. The delivery dates specified in the order or otherwise agreed with the contractor are binding and must be strictly adhered to. Whether the delivery date or the delivery period has been complied with shall be judged according to the date when the goods are delivered to the delivery address specified by us or the date when the delivery is accepted.
5.2. The contractor shall notify us in writing without delay if it becomes apparent that the agreed delivery dates and deadlines will be delayed or exceeded and shall state the reasons and the expected duration of the delay.
5.3. Early deliveries require our express consent. If the goods are not returned in the event of early delivery, they will be stored on our premises until the delivery date at the contractor's risk and expense.
In the event of early delivery, we reserve the right to remit payment only on the due date agreed. In the event of agreed partial shipments, the remaining quantity must be indicated.
5.4. In the event of a delay in delivery, we shall have the right to demand liquidated default damages amounting to 0.3% per working day or 0.25% per calendar day, but no more than 5% in total; we reserve the right to assert further statutory claims (withdrawal from the contract and damages in lieu of performance). We reserve the right to prove that higher damages have been incurred.
The supplier shall have the right to prove to us that no damage or significantly less damage has been incurred as a result of the delay. In the latter case, we may demand compensation for the damage actually incurred. Acceptance of the delayed delivery shall not constitute a waiver of claims for damages and liquidated damages.
5.5. If the Contractor is in default with part of the delivery, we shall also have the right to assert our rights in respect of the parts of the consignment with which the contractor is not yet in default.
5.6. Without prejudice to our other rights, we shall have the right to withdraw from the contract in whole or in part at any time by written declaration, stating the reason for doing so, in the event of the following:
force majeure, labour disputes, operational disruptions through no fault of our own, unrest, official measures and other unavoidable events, insofar as they are not of minor duration and have a substantially detrimental effect on the performance of the contract;
we can no longer use the ordered products in our business operations or can use them only at considerable expense due to circumstances arising after the conclusion of the contract and for which the supplier is responsible (such failure to comply with legal requirements); or
the supplier's financial circumstances deteriorate after the conclusion of the contract to such an extent that contractual delivery cannot be expected.
6. Passage of risk
The contractor shall bear the risk of shipment until the goods duly arrive at our works or our specified unloading point. This shall also apply if delivery ex works has been agreed in individual cases or if we effect shipment on our own account.
7. Inspection of incoming goods, notice of defects
7.1. The statutory provisions (Sections 377, 381 HGB) shall apply to the commercial obligation to examine the goods and give notice of defects with the following proviso: Our duty to examine the goods shall be limited to defects which become apparent during our inspection of incoming goods and external examination, including the delivery documents, as well as during our quality control using a random sampling procedure (e.g. transport damage, incorrect delivery and short delivery). If acceptance has been agreed, there shall be no obligation to examine the goods. In addition, it shall depend on how far an examination is feasible taking account of the circumstances of the individual case in the ordinary course of business. The above provision explicitly does not involve shifting the risk of liability in tort or product liability to the supplier.
7.2. Any payments made towards the purchase price or the receipt of the goods by us or one of our authorised representatives on the supplier's premises prior to the discovery of defects shall not constitute acknowledgement that the goods are free of defects and shall not release the supplier from its warranty.
8. Warranty
8.1. If the delivered goods are defective, the supplier shall be liable to us in accordance with the statutory provisions. If material defects occur in deliveries during the warranty period, the supplier must effect subsequent performance the type of subsequent performance always being a matter for us to choose. The supplier has the right to refuse the type of subsequent performance that we choose subject to the conditions set out in Section 439 Para. 4 BGB. We shall be entitled to complete statutory claims for defects; in any case, we shall have the right to demand rectification of defects or the delivery of a new item. We expressly reserve the right to claim damages, particularly the right to claim graduated damages. In addition, the supplier shall also be liable for any additional costs and damage incurred by us or by our customers as a result of the defect. This includes compensation for any financial loss.
Subsequent performance also includes the disassembly of the defective goods and reinstallation, insofar as the goods have been installed in another item or attached to another item in accordance with their nature and intended use before the defect became apparent; this shall not affect our statutory right to claim reimbursement of the corresponding expenses (disassembly and installation costs). The expenses necessarily incurred through examination and subsequent performance, particularly transport, travel, labour and material costs, as well as any disassembly and installation costs, shall be borne by the seller, even if it transpires that there was in fact no defect. This shall not affect our liability for damages in the case of an unjustified request to remedy defects; however, we shall only be liable in this respect if we recognise or have been grossly negligent in failing to recognise that there was no defect.
8.2. Without prejudice to our statutory rights and the provisions in clause 7, the following shall apply: If the seller does not fulfil its obligation to carry out subsequent performance – by remedying the defect (subsequent improvement) or by delivering an item that is free of defects (replacement delivery), as we have chosen – within a reasonable period stipulated by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the seller. If subsequent performance by the seller has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or the imminent occurrence of disproportionate damage), it shall not be necessary to set a deadline; we will inform the seller of such circumstances immediately, if possible, in advance.
8.3. In the case of deliveries rectified within the limitation period for our claims for defects, the limitation period shall start to run anew at the time when the supplier has fully satisfied our claims to subsequent performance.
8.4. Should a material defect become apparent within six months of the passage of risk, it shall be presumed that the defect was already present at the time of the passage of risk, unless this presumption is inconsistent with the nature of the item or the defect.
8.5. The warranty period is 24 months as from the passage of risk. Notwithstanding the above provision, the limitation period for material defects shall not start to run until two months after the date on which we have fulfilled the claims asserted against us by our customer due to the defect and no later than three years after the passage of risk.
8.6. The three-year limitation period shall also apply accordingly to claims arising from defects of title; this shall not affect the statutory limitation period for third-party claims in rem to the restitution of property (Section 438 Para. 1 No. 1 BGB); furthermore, claims arising from defects of title shall on no account become time-barred, as long as the third party can still assert the right against us – particularly because it has not become time-barred.
9. Recourse against suppliers
9.1. We shall be fully entitled to our statutory claims for expenses and recourse within a supply chain (recourse against suppliers pursuant to Sections 478, 445a, 445b and Sections 445c, 327 Para. 5, 327u BGB), in addition to the claims for defects. In particular, we shall have the right to demand the exact same type of subsequent performance from the seller (rectification of defects or a replacement delivery) that we owe to our customer in the individual case; in the case of goods with digital elements or other digital content this shall also apply with regard to the provision of necessary updates. This shall not restrict our statutory right of choice (Section 439 Para. 1 BGB).
9.2. Before we recognise or fulfil a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Section 445a Para. 1, Section 439 Para. 2, 3, 6 Sentence 2, Section 475 Para. 4 BGB), we will notify the seller, briefly explaining the facts of the case, and request a written statement. If a substantiated statement is not provided within a reasonable period of time and no amicable solution is reached, the claim for defects that we have effectvely allowed shall be deemed owed to our customer. In this case, the seller shall bear the burden of proving that this is not the case.
9.3. Our claims arising from recourse against suppliers shall also apply if the defective goods have been combined with another product or processed further in any other way by ourselves, our customer or a third party, e.g. through assembly, mounting or installation.
10. Liability / product liability
10.1. Unless a different arrangement regarding liability has been made elsewhere in these Terms and Conditions, the supplier shall be obliged to compensate us for any damage that we incur directly or indirectly as a result of a culpable, tortious act or breach of duty on the part of the supplier.
10.2. Insofar as the supplier is responsible for damage to a product, the supplier shall be obliged to indemnify us against claims for damages by third parties at first request insofar as the cause lies within the supplier's sphere of control and organisation and the supplier itself is liable in relation to third parties. In addition to the payment of damages to third parties, the supplier's obligation to indemnify shall also include the costs of legal defence, recall costs, inspection costs, installation and dismantling costs, as well as the administrative expenses and other expenses that we incur in settling the claims.
10.3. In this context, the supplier shall also be obliged to reimburse any expenses pursuant to Sections 683 and 670 BGB as well as Sections 830, 840 and 426 BGB arising from or in connection with a recall campaign or a preventive customer service measure. We shall inform the supplier of the substance and scope of the recall measures or preventive customer service measures carried out – insofar as this is possible and reasonable – and give the supplier the opportunity to make a statement.
10.4. Unless otherwise agreed, the supplier undertakes to maintain product liability insurance with a sum insured of 5 million per case of personal injury/property damage (lump sum) and recall cost insurance with a sum insured of 5 million per claim. This shall not affect any claims that we have to further damages.
11. Design/environmental protection, safety, health protection
11.1. The contractor shall observe the recognised rules of technology, the applicable statutory and official regulations and the client's operational rules and regulations. In particular, the contractor must observe the regulations and rules of the Employers' Liability Insurance Association, the "General Regulations" ("Allgemeine Regelungen") for the prevention of accidents, BGVA1, as well as the generally recognised safety and occupational health rules. Machines and technical work equipment must be supplied with operating instructions and an EC Declaration of Conformity in accordance with the Machinery Regulation. They must also comply with the standards set out in Lists A and B of the “General Administrative Rules concerning the Act on Technical Equipment” (Allgemeine Verwaltungsvorschrift zum Gesetz über technische Arbeitsmittel”), as well as other rules of relevance for safety and the rules and regulations of the Employers' Liability Insurance Association. Preferably, work equipment with CE labelling shall be supplied; if a mark of conformity has not been issued, evidence must be produced of compliance with the above-mentioned regulations at the client's request.
11.2. In the event that the contractor delivers substances that are hazardous substances within the meaning of the Hazardous Substances Ordinance (GefStoffV), the contractor shall be obliged to provide the EC safety data sheet (Section 14 GefStoffV) prior to delivery, without being requested to do so.
The contractor is not permitted to use carcinogenic substances.
12. Waste disposal
Insofar as waste is generated through the contractor's deliveries/services, the contractor shall recycle or dispose of the waste, subject to any written agreement to the contrary, at its own expense and in compliance with the provisions of waste law. Ownership, risk and responsibility under waste law shall pass to the contractor at the time when the waste is generated.
13. Secrecy
13.1. All business or technical information of any kind made accessible by us, including features to be taken from any objects and documents handed over, and other knowledge or experience must be kept secret from third parties and in the supplier's own company may only be made available to such persons who must necessarily be involved for the purpose of delivery to us and who are also obliged to maintain secrecy; such information shall remain our exclusive property. Such information may not be reproduced or used for commercial purposes without our prior written consent - except for deliveries to ourselves.
13.2. There shall be no obligation to maintain the secrecy of information that demonstrably
was already openly known at the time of its disclosure,
has become public knowledge after its disclosure without the supplier being at fault,
has lawfully been made accessible to the supplier by a third party after its disclosure, with no restrictions concerning confidentiality or use.
The obligation to maintain secrecy shall end two years after the termination of the contractual relationship between us and the supplier. 12.3. At our request, all information originating from us (including any copies or records made) and items provided on loan must be immediately returned to us in full or must be destroyed. The destruction must be confirmed to us in writing. We reserve all rights to such information (including copyrights and the right to use industrial property rights such as patents, utility models, trademark protection, etc.). Insofar as these have been made accessible to us by third parties, this reservation of rights shall also apply in favour of these third parties.
13.4. Drawings, models, templates, samples and similar objects may not be handed over or otherwise made accessible to unauthorised third parties. The reproduction of such items is permitted only within the framework of operational requirements and copyright law.
13.5. Subcontractors shall be placed under the same obligation.
13.6. The Contracting Parties may only use their business relationship for advertsing purposes with prior written consent.
14. Retention of title
14.1. Insofar as we provide parts to the supplier, we reserve title to these parts. Any processing or remodelling by the supplier shall be carried out on our behalf. Should our goods under retention of title be processed with other items not belonging to us, we shall acquire co-ownership of the new item according to the ratio between the value of our item (purchase price plus VAT) and the other processed items at the time of processing.
14.2. Should the item provided by us be inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item according to the ratio between the value of the item subject to retention of title (purchase price plus VAT) and the other items mixed at the time of mixing. Should the mixing take place in such a way that the supplier's item is to be regarded as the main item, it is agreed that the supplier shall transfer co-ownership to us on a pro rata basis; the supplier shall hold the exclusive title or shared title in safe custody on our behalf.
14.3. We reserve title to tools; the supplier is obliged to use the tools solely to manufacture the goods ordered by us. The supplier is obliged to insure the tools belonging to us at replacement value against fire damage, water damage and theft and to do so at its own expense. At the same time, the supplier hereby assigns to us all claims for indemnification under this insurance; we hereby accept the assignment. The supplier is obliged to carry out any necessary maintenance and inspection work on our tools, as well as all servicing and repair work at its own expense and in good time. The supplier must immediately notify us of any malfunctions; if the supplier culpably fails to do so, this shall not affect claims for damages.
14.4. Insofar as the value of the collateral rights to which we are entitled under clauses 14.1 and 14.2 exceeds the purchase price of all our still unpaid goods under retention of title by more than 10%, we shall be obliged to release collateral of our choice at the supplier's request.
14.5. Models, matrices, templates, samples, tools and other means of production, as well as confidential information made available to the supplier by us may only be used for deliveries to third parties with our prior written authorisation.
15. Property rights
15.1. The supplier shall be liable for all claims arising from the infringement of industrial property rights and applications for industrial property rights when using the delivery items. The supplier guarantees that no rights of third parties shall be infringed in connection with or through the delivery of its goods.
15.2. Should claims be asserted against us by a third party, the supplier shall be obliged to indemnify us against such claims upon the first written request; we shall not have the right to enter into any agreements with the third party, in particular to conclude a settlement, without the supplier's consent.
15.3. This shall not apply if the supplier has manufactured delivery items according to drawings, models or equivalent descriptions or information provided by us and does not know or, in connection with the products developed by the supplier, does not have to know that industrial property rights are infringed as a result.
15.4. At our request, the supplier shall inform us in writing of the use of published and unpublished own or licensed industrial property rights and applications for industrial property rights in respect of the delivery item.
16. Subcontractors / labour from non-EU countries / minimum wage
16.1. The involvement of subcontractors requires the client's prior written consent. The contractor shall impose all obligations on the subcontractors in relation to the tasks the contractor has taken on and shall ensure compliance with the obligations it has assumed vis-à-vis the client.
16.2. Should the contractor or subcontractor employ workers who do not come from EU countries, the contractor must present the relevant work permits to the client before the work begins.
16.3. Should the contractor employ subcontractors without prior written consent in accordance with clause 15.1 or violate the obligation to present work permits in accordance with clause 15.2, the client shall be entitled to withdraw from the contract and/or demand compensation due to non-performance.
16.4. The contractor may not prevent its subcontractors from concluding contracts with the client for other deliveries/services. In particular, it shall not be permitted to enter into exclusivity agreements with third parties that prevent the client or the subcontractor from procuring deliveries/services that the client itself or the subcontractor needs in order to execute such orders.
16.5. The contractor confirms that it employs its employees and other persons similarly deployed in accordance with the current provisions of the German Minimum Wage Act (MiLoG). The contractor shall indemnify the client against any third-party claims, particularly fines, that are asserted against the client due to failure to comply with the provisions of the MiLoG.
17. Insurance
17.1. The contractor must maintain liability insurance cover for the duration of the contract, including guarantee and warranty periods, with conditions that are customary in the industry (a minimum coverage of EUR 1.5 million per loss event). The contractor must provide evidence of this at the client's request; lower sums insured must be agreed with the client on a case-by-case basis. 16.2. All shipments addressed directly to the client (e.g. deliveries based on purchase contracts, deliveries of work, maintenance orders or customised products, but not material deliveries for contracts for work and labour that the contractor performs at the client's facilities) are covered by the client's transport insurance. In this respect, the contractor must submit a waiver to its forwarding agents with regard to damage insurance under the forwarding, logistics and warehouse insurance policy (SLVS) or comparable cover. Any premiums for such damage insurance or other insurance for one's own account shall be borne by the contractor.
18. Entering and driving on the factory premises
18.1. When entering and driving on the client's premises, the instructions of the client's specialist personnel must be followed. Notice must be given in good time. before entering or driving on the factory premises/construction site The provisions of the Road Traffic Act (StVO) must be observed. The client and its employees shall only be liable for gross negligence and intentional acts, regardless of the legal grounds; in the case of injury to life, limb or health they shall also be liable for ordinary negligence
18.2. If work and services are provided on the factory premises, the relevant construction site regulations shall apply. Upon commencement of work or upon prior request, a copy of the construction site regulations, including a list of annexes, shall be handed over to the contractor’s supervisory personnel against signature. Knowledge of the contents of the construction site regulations, including the list of annexes, must be confirmed in writing.
19. Final provisions
19.1. Unless otherwise agreed, the law of the Federal Republic of Germany shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods (CSIG) is excluded.
19.2. The place of performance is the place where we have our registered office.
19.3. The place of jurisdiction shall be Düsseldorf, but we shall also have the right to bring an action against the supplier at its general place of jurisdiction.
19.4. The invalidity of individual clauses shall not affect the validity of the remaining clauses. The contractual partners shall be obliged to replace ineffective provisions with provisions that are equivalent in terms of the commercial outcome. The same shall apply in the event of a gap.
19.5. The company does not agree to participate in dispute resolution proceedings before consumer arbitration boards within the meaning of Section 36 Para. 1 of the German Consumer Dispute Resolution Act (VSBG). This does not affect the possibility of dispute resolution by a consumer arbitration board in the context of a specific dispute with the consent of both contractual parties (Section 37 VSBG).