§ 1 General Provisions
- Our contracts are concluded exclusively on the basis of these Terms and Conditions of Purchasing. This also applies to future transactions. Any deviating terms of the seller are herewith rejected; such are also not accepted even in the case of goods acceptance without repeated express rejection. Our Terms and Conditions of Purchasing apply only to companies as defined by Sec. 310, Par. 1 of the Federal German Civil Code (BGB).
§ 2 Orders – Release Orders
- Contract content is solely the content of our written orders. Orders placed verbally or supplementary agreements only become valid if confirmed by us in writing.
- Our orders are to be confirmed in writing within 14 days. After lapse of this period, we are no longer bound to our order.
- We are authorized to demand alterations to the object of delivery in regard to construction and/or design within a scope that is reasonable for our suppliers. Any price adjustment is to be arranged by mutual agreement.
- Delivery schedules become binding at the latest if the supplier does not contradict such within one week. We are authorized in the case of delivery schedules to make changes, in particular regarding the delivery time, to the extent that such changes can be reasonably expected from our suppliers.
§ 3 Delivery Period – Delayed Delivery
- Agreed dates and periods are binding. Should the latest date on which delivery is to occur based on the contract passes without delivery, then the supplier falls into delivery default without the need for a reminder or complaint to be issued on our part.
- Reception of the goods by us is the decisive factor in regard to compliance with the delivery period.
- Our supplier is obligated to notify us in writing without delay if circumstances arise or become evident in which the delivery period cannot be complied with.
- If the supplier has not complied with the agreed delivery date and failed subsequently to comply with a reasonable grace period established by us, then we are authorized to choose at our discretion to withdraw from the contract partially or wholly and/or to demand damages compensation in place of the performance of the agreed service.
- In the event of delivery delays and with prior written notification to the supplier, we are authorized to demand a contractual penalty in the amount of 0.5 % of the respective goods value for each week of delay that has begun, up to a maximum of 5 % of the respective goods value. The contractual penalty is to be added to the delay damages to be compensated by the supplier. The right of the supplier to produce evidence that such damages are actually lower remains unaffected.
§ 4 Payment Terms – Prices
- The prices listed in the order are binding and apply, to the extent that nothing to the contrary has been agreed, to “carriage paid” delivery and are additionally to be understood as including packaging, for which we are only liable for return in the event of a separate agreement governing such.
- Invoices are to be provided in two copies and in accordance with the specifications in our order. In particular, they must contain the customer number, order number and requisition number. Should delays occur due to noncompliance with this obligation, then our supplier is as such liable to us for compensation.
- To the extent that nothing deviating is agreed in writing, payments ensue within 14 days calculated from delivery and receipt of the invoice with 3 % commercial discount, or net within 30 days following receipt of the invoice. Delivery in accordance with the contract and the presentation of proper invoices are a precondition for such. Payment signifies neither the acknowledgement of proper contract fulfillment nor a waiver of the liability of the supplier on the basis of defects.
- In the event of payment arrears, we owe arrears interest in the amount of 5 % points above the basic interest rate in accordance with Sec. 247 of the BGB.
- We are entitled to rights of retention and set-off rights to the extent that such is legislated.
- Our supplier is only authorized to assign its receivables from us with our prior written consent. If an extended retention of ownership is agreed, then such consent applies as granted.
- The legally prescribed value added tax is not included in the price and will be separately invoiced in the respective legal amount.
§ 5 Delivery – Packaging – Shipping
- Delivery and shipment are conducted on a carriage paid basis to our business address or to the delivery location specified by us at the risk of the supplier. The costs of packaging, freight and insurance are the responsibility of the supplier. To the extent that delivery is agreed on an ex-factory basis in an individual case, the supplier must ensure the lowest freighting price for us as well as the proper declaration. The supplier is also liable for transport damages in such case.
- The supplier is obligated to provide shipment documentation and delivery notes containing our order number and customer number as well as quantity, weight and goods type specifications. Furthermore, the supplier will label the delivery objects in the manner prescribed by us or in the manner mutually agreed where applicable.
§ 6 Replacement Parts
- The supplier is obligated to stock replacement parts for the products delivered to us for a period of at least 10 years following delivery.
- Should the supplier intend to cease production of replacement parts for products delivered to us, then the supplier will notify us without delay following a decision regarding such cessation of production. Subject to Par. 1, this decision must be made or have been made at least 6 months prior to the shutdown of production.
§ 7 Defects – Notification of Defects
- Our supplier is obligated to manufacture and deliver goods to us in accordance with the acknowledged regulations of technology and under compliance with safety regulations and any agreed technical data, etc.
- We are obligated to inspect goods within a reasonable period for defects. To the extent that nothing to the contrary has been agreed, our reception inspection is limited to a general reception inspection (type of goods, quantity, obvious packaging damages, obvious defects). Defects becoming evident during such inspection qualify as having been duly reported if the defect notification ensues within 14 days from receipt of the goods. Defects that are not recognizable within the above-described requirements for a general reception inspection must be reported without delay upon their discovery; the same applies accordingly for concealed defects.
- Acceptance or approval of provided samples does not signify waiver on our part of guarantee claims.
- We are entitled to the legally prescribed rights in the event of defects and breach of obligations by our supplier. In particular, we are entitled to choose elimination of the defects (remedy) or delivery of non-defective goods at our own discretion. Sec. 439, Par. 3 of the BGB remains unaffected.
- Should our supplier fail to begin remedying defects immediately after our defect notification, then we are authorized, at least in urgent cases and in cases where there is a danger of delays, to sort out defective parts at the expense of our supplier. However, fundamentally in such cases, our supplier should initially be given the opportunity to sort out defective parts on its own. As for the remainder, the regulation in accordance with the above Figure 2 applies.
- Claims on grounds of defects or breach of obligations are subject to lapse after 36 months from the transfer of risk, in so far as longer legal periods do not take precedence (e. g., Sec. 479, Par. II and Par. III of the BGB).
- Upon receipt by the supplier of our written defect notification, the statutory limitation of guarantee claims is inhibited. The guarantee period begins anew for replacement parts and remedy of defects unless, based on the behavior of the supplier, we have to assume that the supplier did not see the measure as a necessity, but instead conducted such solely for reasons of maintaining goodwill or similar reasons.
§ 8 Trademarks
- Our supplier is responsible for ensuring that no claims, in particular damage compensation claims, are made against us by third parties for usage of the objects of delivery in accordance with the contract on the basis of possible trademarks and trademark registrations, to the extent that such trademarks are established or registered with the German or European patent authorities. Our supplier is to indemnify us from any possible damage compensation claims.
- Our supplier’s damage compensation obligation, respectively, indemnification obligation also extends to such expenditures necessarily arising for us as a result of and in connection with claims by third parties.
- The above provisions do not apply in the event that our supplier has provided us with objects of delivery according to our specifications, in particular drawings, models and other descriptions, and did not know or was not required to know that such would result in the violation of third party trademarks.
- Our supplier is obligated to notify us without delay in the event of becoming aware of trademark violation risks, in particular alleged cases of violation.
§ 9 Product Liability – Insurance
- Our supplier is obligated to exempt us from all damage compensation claims by third parties based on product damages, to the extent that the cause is attributable to the supplier’s sphere of responsibility and organization and the supplier itself is liable in the external relationship.
- In such damages cases, our supplier is obligated to reimburse us for any expenditures arising for us in accordance with Sections 683, 670 of the BGB and Sections 830, 840, 426 BGB resulting from a product recall action conducted by us. We will endeavor to coordinate such product recall actions in regard to their content and scope in advance with our supplier to the greatest extent possible. More extensive legal claims on our part remain unaffected.
- Our supplier is obligated to conclude and maintain a product liability insurance policy with a coverage sum of 5 million € per person / case of material damage. The supplier will verify such to us upon request.
§ 10 Tools – Production Facilities
- Tools, installations and models that we provide for the supplier or that are manufactured for purposes of contract fulfillment and separately invoiced to us by the supplier remain or become our property. They are to be recognizably designated as our property by the supplier, carefully maintained, insured against all types of damages and used only for contractual purposes. In the absence of a deviating agreement, each of the contract partners bear half of the maintenance and repair costs of such objects. However, in so far as such costs are attributable to defects in objects manufactured by the supplier or to improper usage on the part of the supplier, its employees or other vicarious agents, then such costs are the sole responsibility of the supplier. The supplier is obligated to inform us without delay regarding all damages, not just significant damato such objects. Upon request, the supplier is obligated to issue these objects in proper working order to us if such are no longer required for fulfillment of the contracts concluded with us.
- Our supplier is obligated to insure tools and other production facilities belonging to us at the replacement value at the expense of the supplier (fire, water, theft). Our supplier already cedes to us now any possible indemnity claims from such insurance policies. We already accept this cession effective immediately.
- Our tools and other production facilities, etc., are to be maintained and serviced by our supplier as required. The supplier is additionally obligated to have repair work done punctually at the supplier’s expense.
- These provisions are supplemented by the following regulations under XI.
§ 11 Retention of Title – Supplied Documentation and Objects
- If we provide our supplier with parts or documentation, we retain the ownership of such. Processing and alterations by our supplier are conducted for us. In the event of the inseparable mixture of our reserved goods with objects not belonging to us, then we acquire co-ownership of the new object at the ratio of the value of the reserved item to the other mixed object(s) at the time of their mixture with one another. Should such mixture be conducted in a manner in which the item(s) not belonging to us is/are regarded as the main item(s), then the supplier herewith transfers proportional co-ownership to us.
- Our supplier maintains our sole ownership or co-ownership for us with the proper professional care.
- Retention of Title clauses from our supplier are fundamentally excluded.
- All documentation or objects, in particular tools and production facilities that we provide to the supplier for bid tendering or for the completion of an order, may only be used for the purpose of such bid tendering and/or the completion of the delivery transaction. In particular, they may not be used for other purposes or reproduced. They also may not be made accessible to third parties. After completion of the order, such documentation and/or such items are to be returned to us free of charge. A right of retention does not exist.
§ 12 Confidentiality
- Our supplier is obligated to maintain secrecy toward everyone regarding all information, illustrations, drawings, calculations and other documentation received from us, regardless of their nature. Such documentation and information may only be revealed to third parties with our prior written consent. The confidentiality obligation also applies after termination of this contract. It only expires if the provided documentation, drawings, calculations and other information become generally known.
- Our supplier is furthermore obligated to maintain all nonpublicized commercial and technical information or knowledge of which the supplier becomes aware through our business relationship as business secrets; in particular, models, patterns, samples, tools and similar objects may not be provided to or otherwise made accessible to unauthorized third parties. The reproduction of such objects, except within the framework of business operational necessities, is prohibited, subject to deviating regulations.
- The supplier is obligated to use the knowledge and experience acquired in the process of completing our order solely for the completion of orders from our company and to refrain from making such known to third parties.
- Any permissible subcontractors used by our supplier are to be obligated accordingly.
- Our supplier may only advertise our mutual business relationship with our prior written consent.
§ 13 Jurisdiction, Legal Domicile
- Exclusive legal domicile is our business headquarters. We are nevertheless also entitled to file a claim at the headquarters of our contract partner.
- In the absence of a deviating agreement, the place of fulfillment is our business headquarters.
- Our contracts are subject to the laws of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the Sale of International Goods (CISG).
- The contractual language is German; should correspondence be conducted solely in the English language, then English is also the contractual language.
§ 1 Validity
- All our deliveries, services and offers take place exclusively on the bases of these general business conditions. They are component of all contracts that we enter with our contract partners (hereinafter also called customer). If no special re-negotiation has taken place, then these conditions are valid also for all future deliveries, services or proposals to our customers.
- Our business conditions are valid exclusively for merchants.
- We do not recognize business conditions of customers or third parties, also in such single cases that the validity of such conditions would not be disagreed upon by us. Even if we make reference to language of a letter of a customer or that of a third party, which contains customer conditions or references such, shall not constitute agreement with customer conditions.
- In accordance with this contract, all agreements between our contract partners and us shall be in writing.
§ 2 Offer and Contract Close
- As far as they are not specifically marked binding or contain specific terms of acceptance, our offers are non-binding and subject to change. If an order is qualified as a special offer then it can be accepted within two weeks.
- As far as reasonable for our contract partners, discrepancies of technical and creative work, in specifications and details of prospectuses, proposals and written documentation as well as services, constructions and material changes, also changes in color, form and/or weight in the course of technical advancement is reserved. The properties of our products (technical data, measurements and the like) are estimated and approximated only; they are no warranted conditions, unless, such warranties takes place exclusively in writing.
- The property of goods shall mean exclusively the product description. Public comments, promotions or advertising comments from us or from the manufacturer in contrast thereto, shall not constitute agreement of the property of the goods.
- In case the customer receives assembly instructions containing discrepancies, then we are liable merely for the supply of assembly instructions free of discrepancies and this only then, if the discrepancies contained in the assembly instructions cause direct hindrance of the proper assembly.
- The right of ownership and that of intellectual property rights for samples, drawings, price quotes and similar – also in electronic form is reserved by us. These may not be made accessible to third parties without permission and are to be returned immediately upon request.
- The contract close takes place under reservation that supplies from our suppliers are received in a timely manner and are free of discrepancies. This however, is valid only for the case that we have a congruent supply arrangement with our supplier and in so far that we are not liable for an untimely supply and/or defective supply received. The contract partner is notified immediately about the unavailability of services from our suppliers. A possible already rendered payment is refunded immediately.
- Even in the event of full calculation of costs, tools - as far as nothing else has been agreed upon – shall not become property of the customer.
- The provision of samples takes place exclusively at cost.
§ 3 Prices, Payment, Offset, etc.
- Prices are valid for the services and scope of delivery listed in the purchase order confirmation. Increased or special services are calculated separately. Prices are quoted in Euro ex factory plus packaging, statutory sales tax and for export deliveries plus customs as well as fees and other public taxes.
- As far as agreed upon, prices are on the basis of our list prices and for example, if delivery is to take place four months after contract close we shall apply the list prices of the supplier (less a possible beforehand agreed upon percentage rebate or discount) valid at time of delivery.
- As far as nothing else has been agreed upon, our contract partner is obligated to pay net within 30 days as of invoice.
- An offset with customer counterclaims or the withholding of payments due to such claims is permissible only then, if such counterclaims are undisputed or legally binding.
- We reserve the right to execute or render still outstanding deliveries and services only against pre-payment or security deposit, if in the course after contract close we gain awareness about conditions that would apply to substantially compromise the credit worthiness of the customer and through which remittance for an open contractual agreement (including that of other single orders that feature the same general conditions) would be jeopardized.
§ 4 Delivery and Duration, Delivery Delays and Cancellation
- Deliveries take place ex factory.
- Unless definite terms or definite deadlines for deliveries and services are promised or agreed upon, deliver terms or deadlines quoted by us are to be viewed as an approximate delivery time. As far as shipment is agreed upon, delivery terms and delivery times refer to the date of the handover to the shipper, carrier or other for the transport contracted third party.
- The start of the quoted delivery time by us requires the clarification of all technical questions. A further requirement is the timely and orderly fulfillment of the contractual obligations of the customer.
- Without prejudice of our rights arising due to arrears of the customer – we can demand an applicable extension of delivery and services terms or an extension of delivery and service dates as a minimum around such time in which the customer does not meet his contractual obligations toward us.
- We are not liable for non-compliance of delivery or for delivery delays, as far as these are caused by force majeure or other causes (e.g., disruption of operations, difficulties with the procurement of materials and energy supply, transport delays, strikes, lawful lockouts, deficiency of manpower, energy or raw materials, difficulties with the procurement of necessary regulatory permissions or official provisions) and are not caused due to our doing. We have the right to rescind from the contract as far as such events complicate substantially, make the delivery or services impossible or cause hindrance of not only temporary duration. In addition to an adequate start-up period, hindrances of temporary nature will prolong the delivery or service terms or postpone the delivery and service dates around the date of the hindrance. Insofar as due to the delay of delivery or services the customer cannot be expected to accept the order, he may with immediate written statement addressed to us rescind from the contract.
- We are authorized to partial deliveries, if,
- within the scope of the contractual intended use the partial delivery is of use to the customer, and
- the delivery of the remaining order is secured, and
- the customer is hereby not subjected to substantial increased expenses or additional costs (unless we accept payment of these costs).
- If we get into difficulties with a delivery or service or, no matter what the reason, a delivery or service becomes impossible for us, then compensation for damages shall be limited to the provisions of the following in § 8 listed policies and procedures.
- As far as nothing else has been agreed upon in writing, if we owe delivery on call, delivery calls are to be made at the latest within 6 months after purchase order confirmation. We have the right to deliver and validate our delivery conditions even without the call of the customer, or even after a preceding or as the case may be variating agreed upon call period has elapsed. The contract partner is then liable for acceptance and reimbursement.
§ 5 Place of Fulfillment, Shipping, Packaging, Risk Transfer, Acceptance
- As far as nothing else is determined, place of fulfillment for all obligations listed in the contractual relationship is our principal office
- The mode of dispatch and packaging are subject to our obligatory discretion.
- Insurance, regardless what kind is taken out only if expressly requested by the customer and only for reimbursement of costs.
- The risk is transferred to the customer upon takeover of the goods by the shipper, carrier or other third party assigned with the execution of the transport of the goods, whereby loading of the goods is relevant here. The same is true for partial deliveries unless we have agreed to and taken over other services. In case shipment or transfer is delayed due to circumstances caused by the customer, risk transfer to the customer takes place on such day that we are able to deliver and have so notified the customer.
- Storage cost after the risk has been transferred is to be carried by the customer. By storage through us, storage cost amounts to 0.25% of the net invoice of the to be stored delivery items per beginning week. We reserve the right of assertion and verification of storage costs that goes beyond.
§ 6 Warranty
- The warranty period is one year as of delivery or, as far as acceptance required, as of acceptance.
- Discrepancy claims by the customer depend on whether he has properly complied with the in § 377 HGB owed research and claim obligations.
- Upon our request, the rejected delivery item is to be sent back to us free of delivery charges. For legitimate notice of defects, we shall reimburse the costs of the most low priced shipping route, this is in so far not valid if shipping costs increase because the to be shipped item is located at a different location than that of its intended use.
- In material defects of the delivered item, we are obligated and authorized to subsequent improvement or replacement within a reasonable period. In the case of failure, i.e., impossibility, unacceptability, refusal or unreasonable delay of the subsequent improvement or replacement, the customer may rescind the contract or may reasonably reduce the purchase price.
- Is the deficiency caused through our negligence, then the customer may demand compensation for loss suffered as per the regulation in § 8 of these contract provisions.
- The warranty is not applicable, if the customer changes or has the delivery item changed by a third party without our permission and the deficiency removal is therewith made impossible or made unacceptably difficult. In every case, the customer has to carry the cost of so emerging increased costs of the deficiency removal.
- Agreements reached with the customer for a single case delivery agreement for used items takes place under exclusion of any warranty.
§ 7 Property Rights
- Every contract partner shall immediately notify the other in writing in the case claims of third parties are being enforced toward him in regards to industrial or intellectual property rights.
- If we produce according to instructions of the customer, or deliver services as per the guidelines of the customer, then he is obligated to release us of infringements of property claims of third parties.
§ 8 Liability to Claims for Damages for Cause
- Our liability to claims for damages, no matter on what legal grounds, but especially due to impossibility, delay, deficient or wrong delivery, contract violation, violation of obligations in contract negotiations and liability in tort, and in as much as it is in matters of fault, is limited in accordance with this paragraph.
- We are not liable,
- in the case of simple negligence of our agencies, legal agents, employees or other assignees,
- in the case of gross negligence of a non-executive employee or other assignee, as far as these are not in regards to a violation of contract essential obligations.
- Insofar that we are admitting to the merits of a claim and are liable in accordance with § 8 Para 2, this liability toward claims is limited to the foreseeable and typically occurring damage. Secondary damages and subsequent damages which are the result of deficiencies of the delivery item, are in addition reimbursable only insofar that such damages are to be typically expected in the specified normal use of the delivered item.
- In case of liability of simple negligence our reimbursement obligation for material and personal damages for each case is limited to an amount of 30% of the net material value of the material that caused the damage, even if it is in regards to a violation of contract essential obligations.
- The before mentioned liability exclusions and limitations shall be valid to the same extend for our agencies, legal agents, employees or other assignees.
- If we give technical information or are active in a consulting capacity and such information or consultation is not included in the agreed upon scope of delivery, this then is carried out without charge and under the exclusion of all liability.
- The limitations of § 8 are not valid on account of our liability and that of our assignees in the case of deliberate conduct, warranted characteristics of the facts, injury to life body or health or if in accordance with the product liability act.
§ 9 Reservation of Property Rights
- In contracts we do reserve the right to our property until payment in full of all outstanding bills from current business relations is received. Where applicable we also reserve our right to property until receipt of all payments from a possible existing open account relationship with our contract partner. This reservation is in reference to the acknowledged balance.
- The conversion or alteration of the delivery item through the customer is always done for us. If the delivery item is converted with other items that do not belong to us, then we acquire a coownership of the new object in relation to the value of the delivery item (net invoice plus sales tax) to the other converted items at time of conversion. For the object created through the conversion the same rules as in goods delivered under reservations applies.
- If the delivery item is mixed with other items that do not belong to us in a manner that they can no longer be separated, then we acquire a co-ownership on the new creation in relation to the value of the purchased item (net invoice plus sales tax) to the other mixed items at time the mixing occurred. If the mixing takes place in such a manner that the material of the customer is to be viewed as the main thing, it is agreed upon that the customer transfers ownership to us proportionately. Our contract partner stores the emerging property or co-property for us.
- The customer has the right to further sell the goods in an orderly fashion. Surrenders to us, however, already now all accounts receivables in the amount of the invoice (incl. sales tax) that accrue for him through that sale vis-à-vis a third party. We hereby accept the surrender. After the surrender the entrepreneur has the right to collect the receivables for our account until revocation or cessation of his payments or until submission of a request to open insolvency proceedings. In case of delay of payment of the entrepreneur as well as in payment and/or operation cessation and in cases of submission of a request for the opening of insolvency proceedings, we may demand that the contract partner reveals the surrendered receivables and their debtor and furthermore that he gives all necessary information and provides all necessary documentation for the collection and also that he notifies the debtors (third parties) of the surrender. Our right to disclose the surrender in such cases and to collect the receivables ourselves remains untouched. Receivables that were surrendered by the entrepreneur to us in accordance with the above may not be surrendered to a third party. The same is true for pledging; security conveyance is impermissible.
- The contract partner is obligated to treat our sole or co-owned property with care. And insofar maintenance and inspections are necessary these have to be done at regular intervals at his expense.
- The contract partner is obligated to immediately notify us in case our sole or co-owned property is being seized by a third party, such as for example the execution of a levy. The same is true for possible damages or destruction of the goods. A change in owner of the goods as well as his address change is to be indicated immediately as well.
- If the contract partner violates the above obligation in accordance with section 5 and 6, we have the right to demand the goods; this is also true vis-à-vis entrepreneur and even if we do not at the same time rescind from the contract. Taking back the goods, even vis-à-vis entrepreneurs does not constitute withdrawal from the contract unless we would have expressly declared that in writing. In business or payment cessations as well as in - reserved rights of an insolvency administrator – the above-mentioned paragraphs 1 and 2 apply for insolvency proceedings. We have the right to utilize the goods after they are returned. The utilization proceeds are to be allocated to the contract partner’s liability – less applicable utilization costs
- We obligate ourselves to release the securities due us insofar as they exceed our to be secured receivable securities by more than 10%, the choice of which securities are to be released shall remain with us.
§ 10 Final Provisions
- As far as nothing else has been agreed upon, place of fulfillment is our place of business.
- The relations between the customer and us are exclusively subject to the laws of the Federal Republic of Germany. The agreement of the United Nations about contracts of the international purchase of goods dated 11 April 1980 (CISG) does not apply.
- Exclusive jurisdiction for all disputes is our place of business. The same is true when our contract partner has no general place of jurisdiction in Germany, or a place of residence or the usual abode at time of legal action commencement is not known. We do although reserve the right to bring suit at the customer’s location. Lawful provisions about exclusive jurisdictions remain untouched.
- Our customer is advised that as per § 28 Federal Data Protection Act, we retain data from the contract agreement for purposes of data processing and that we reserve the right to transfer such data to third parties in as much as it is necessary for the fulfillment of the contract.