General Terms and Conditions of Purchase
§ 1 General, Scope of Application
- These General Terms and Conditions of Purchase (GTCP) shall apply to all business relations with our suppliers/vendors. The GPC shall only apply if the Seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
- The GPC shall apply in particular to contracts for the purchase and/or delivery of movable goods ("Goods"), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (§§ 433, 651 BGB) and for the procurement of services. Unless otherwise agreed, the GPC in the version valid at the time of our order or, in any case, in the version last notified to the Seller in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
- These GPC shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Seller shall only become part of the contract if and to the extent that we have expressly consented to their application in writing. This requirement of consent shall apply in any case, for example even if we accept the Seller's deliveries without reservation in the knowledge of the Seller's General Terms and Conditions.
- Individual agreements made with the Seller in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCS. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
- Legally relevant declarations and notifications to be made to us by the Seller after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in writing to be effective.
- The use of orders for reference and/or advertising purposes requires our prior written consent.
- References to the applicability of statutory provisions shall only have clarifying significance. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GPC.
§ 2 Conclusion of contract
- Our order shall be deemed binding at the earliest when it has been placed or confirmed by us in writing. The use of fax or e-mail shall be sufficient for the written form. The Seller shall notify us of any obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion prior to acceptance; otherwise the contract shall be deemed not to have been concluded. Also in the case of other changes made to our order, a contract shall only be concluded if we have agreed to these changes in writing.
- The Seller shall be obliged to confirm our order in writing within a period of 5 working days or to execute it without reservation, in particular by dispatching the goods (acceptance). Silence within this period shall be deemed acceptance. After expiry of this period, we shall no longer be bound by our order (our offer). Any declarations made by the Supplier in relation to our order (our offer) which amend our order (our offer) and thus constitute a new offer by the Supplier shall not be accepted by us.
- A delayed acceptance of an order shall be deemed a new offer and shall require acceptance by us.
- We shall be entitled to request changes to product specifications to the extent that such changes can be implemented within the scope of the Seller's normal production process without significant effort, and in such cases the Seller shall be granted a reasonable period of time by us to make the relevant changes. We shall reimburse the Seller for any proven and reasonable additional costs incurred in each case as a result of the change. If such changes result in delays in delivery which cannot be avoided in the normal production and business operations of the Supplier with reasonable efforts, the originally agreed delivery date shall be postponed accordingly.
- The Seller shall be obliged to notify us in writing without delay whether and to what extent government export licenses are required for the order as a whole or in part, or similar legal or official requirements must be met, or whether the goods are subject to US export restrictions, for example.
§ 3 Delivery time and delay in delivery
- The delivery date specified by us in the order shall be binding. The Seller shall be obliged to notify us in writing without delay if it is likely that it will not be able to meet the agreed delivery date - for whatever reason. Decisive for the compliance with the delivery date is the proper receipt of the goods and the documents, if any, at the agreed delivery address or the timeliness of the successful acceptance, if such acceptance is necessary.
- If the Seller does not perform its services or does not perform them (by) the agreed delivery date, it shall be in default without a reminder. In this case, our rights - in particular to rescission and damages - shall be determined in accordance with the statutory provisions. The provisions in para. 4 shall remain unaffected.
- The Seller may only invoke the absence of necessary documents to be supplied by us if he has sent a written reminder for the documents and has not received them within a reasonable period of time.
- If the Seller is in default, we may demand a contractual penalty of 0.5% of the net price per completed calendar week, but in total not more than 5% of the net price of the goods delivered late. We shall be entitled to claim the contractual penalty in addition to performance and as a minimum amount of damages owed by the Seller under the statutory provisions; the right to claim further damages shall remain unaffected. If we accept the delayed performance, we shall claim the contractual penalty at the latest with the final payment.
- If delivery is made earlier than agreed, we reserve the right to return the goods at the seller's expense. If no return is made in the case of early delivery, the goods shall be stored by us until the agreed delivery date at the expense and risk of the seller. In the event of early delivery, we reserve the right to make payment only on the agreed due date.
§ 4 Performance, Delivery, Transfer of Risk, Packaging Material, Default of Acceptance
- Without our prior written consent, the Seller shall not be entitled to have the performance owed by him rendered by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).
- Delivery shall be made within Germany according to Incoterms (2010) CIP, in case of delivery from abroad Incoterms (2010) DDP, to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, delivery shall be made to our place of business in Remscheid. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver).
- The delivery shall be accompanied by a delivery bill stating the date (issue and dispatch), the contents of the delivery (article number and quantity) and our order identification (date and number). If the delivery bill is missing or incomplete, we shall not be responsible for any delays in processing and payment resulting therefrom. Separate from the delivery bill, a corresponding dispatch note with the same content must be sent to us.
- The Seller shall take back any packaging material free of charge.
- The risk of accidental loss and accidental deterioration of the item shall pass to us upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
- The statutory provisions shall apply to the occurrence of our default in acceptance. However, the Seller must expressly offer us his performance even if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may demand compensation for its additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to a non-representable item to be manufactured by the Seller (individual production), the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
§ 5 Delivery of dangerous goods
- It is the Seller's responsibility to check, prior to acceptance of the order, whether the items specified in the order and/or their components are to be classified as hazardous goods (e.g. paints, adhesives, chemicals or flammable, oxidizing, explosive, combustible, toxic, radioactive, corrosive or self-heating goods) in the country of origin, country of destination and/or all transit countries. In such cases, the Seller shall inform us immediately and comprehensively. At the latest with his written order confirmation, he shall send us the binding declarations required by law for their dispatch correctly completed and signed in a legally binding manner.
- With regard to the packaging, labeling and declaration of dangerous goods, the seller is obligated to observe the respective nationally and internationally applicable regulations. These would be in particular for sea freight: Dangerous Goods Regulation - SEA IMDG Code; for air freight: UNICAO IATA RAR US-Dot; for transport by rail: EVO/RID as well as Dangerous Goods Regulation - Rail; for transport by road: ADR as well as Dangerous Goods Regulation - Road; and in general: Dangerous Goods Regulation.
- Any deviating and/or additional national regulations of the respective country of destination must also be observed if the country of destination was named in the order.
- The Seller shall be responsible for any damage that occurs as a result of incorrect information in the binding declarations or because existing regulations have not been observed in the handling (packaging, shipping, storage, etc.) of dangerous goods.
§ 6 Prices and terms of payment
- The price stated in the order is binding. All prices are inclusive of statutory value added tax, unless this is shown separately.
- Unless otherwise agreed in individual cases, the price shall include all services and ancillary services of the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
- The agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If payment is made within 14 calendar days, the Seller shall grant us a 3% discount on the gross amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made in due time if our transfer order is received by our bank before the expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.
- We do not owe interest on arrears. The statutory provisions shall apply to any delay in payment.
- We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. In particular, we shall be entitled to withhold payments due as long as we are still entitled to claims against the Seller arising from incomplete or defective performance.
- The Seller shall have a right of set-off or retention only in respect of counterclaims which have been finally determined by a court of law or which are undisputed.
§ 7 Confidentiality and retention of title
- We reserve the right of ownership to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents provided by us. Such documents are to be used exclusively for the contractual performance and are to be returned to us after completion of the contract. The documents shall be kept secret from third parties; reference is made to the separate non-disclosure agreement [SH1] .
- The above provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the Seller for production. Such items shall - as long as they are not processed - be stored separately at the Seller's expense and insured to a reasonable extent against destruction and loss.
- Any processing, mixing or combination (further processing) of provided items by the Seller shall be carried out on our behalf. The same shall apply in the event of further processing of the goods supplied by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
- The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. If, however, we accept in an individual case an offer of the seller for transfer of ownership conditional on payment of the purchase price, the seller's retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorized to resell the goods in the ordinary course of business, even before payment of the purchase price, with advance assignment of the claim arising therefrom. This excludes in any case all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.
§ 8 Work results
- Unless otherwise expressly agreed in the contract, we shall be exclusively entitled to all industrial property rights, rights of use and exploitation rights to and from all processing or reworking of - or derived works from - materials provided by us, even if these are developed by or for the Seller. The Seller hereby assigns the same to us, who accept the same. For the avoidance of doubt, we shall not be entitled to any rights in respect of improvements independently developed by Seller which are separable, i.e. which can be exploited without infringing our rights in respect of the provision. To the extent that a transfer of rights is not legally permissible, Seller shall grant us, free of charge and encumbrances, an exclusive, territorially and temporally unlimited, royalty-free, assignable and sublicensable license for all known types of use. The Seller hereby grants this to us and we accept this.
- We shall also receive exclusive rights in accordance with the foregoing paragraph to all results of development work paid for by us, with the proviso that we shall only receive non-exclusive rights to use and exploit works or inventions included in a result that were not developed specifically for us ("Third-Party Products") to the extent necessary or conducive to the use or exploitation of the work result, provided that Seller has disclosed the use of the Third-Party Product and we have given our prior written consent to such use. In this case, the Seller shall remain entitled to use and exploit the third-party product (but not to use any materials provided by us). Insofar as a third party product has been incorporated into a result without our consent, these restrictions shall not apply and we shall receive exclusive rights to the entire result.
- We shall also receive exclusive rights in accordance with the foregoing paragraphs to all other results of the cooperation of the parties under the contract, unless otherwise agreed in the contract. Seller hereby grants us all of the foregoing rights and we accept the same. We reserve all rights to all of our provisions and confidential information. Insofar as these have been made available to us by third parties, this reservation of rights shall also apply in favor of these third parties. Products manufactured on the basis of documents drafted by us, such as drawings and the like, or on the basis of our confidential information, may not be used by the Seller himself outside the scope of the contract, nor may they be offered or supplied to third parties.
§ 9 Warranty
- The Seller warrants that all goods comply with the recognized rules and the latest state of the art, as well as all laws, regulations and standards relating to the respective country of destination.
- The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including wrong delivery and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the Seller, unless otherwise stipulated below.
- In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us. In any case, those product descriptions which - in particular by designation or reference in our order - are the subject matter of the respective contract or have been included in the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, from the seller or from the manufacturer.
- Notwithstanding Section 442 (1) sentence 2 of the German Civil Code (BGB), we shall also be entitled without limitation to claims based on defects if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
- The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and give notice of defects with the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection under external appraisal including the delivery papers as well as during our quality control in the random sampling procedure (e.g. transport damage, wrong and short delivery). Insofar as acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case.
- Our obligation to give notice of defects discovered later shall remain unaffected. In all cases, our complaint (notice of defect) shall be deemed to have been made without delay and in good time if it is received by the Seller within 5 working days.
- The costs incurred by the Seller for the purpose of inspection and subsequent performance (including any removal and installation costs) shall be borne by the Seller even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request for rectification of defects shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.
- Rectifications or subsequent deliveries shall, if necessary, be carried out in multiple shifts or even overtime or on public holidays if this is necessary for urgent operational reasons and is reasonable for the Seller.
- If the Seller fails to meet its obligation to provide subsequent performance - at our option by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery) - within a reasonable period of time set by us, we shall be entitled to remedy the defect ourselves and to demand reimbursement of the expenses required for this purpose 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 imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without undue delay, if possible in advance.
- Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.
§ 10 Supplier recourse
- We shall be entitled to our legally determined rights of recourse within a supply chain (supplier recourse in accordance with §§ 478, 479 BGB) without restriction in addition to the claims for defects. In particular, we shall be entitled to demand from the Seller exactly the type of subsequent performance (repair or replacement delivery) that we owe to our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) shall not be restricted hereby.
- Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 478 para. 2, 439 para. 2 BGB), we shall notify the Seller and request a written statement, briefly stating the facts of the case. If the statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer; in this case, the Seller shall be responsible for proving the contrary.
- Our claims arising from supplier recourse shall also apply if the goods have been further processed by us or by one of our customers, e.g. by incorporation into another product, prior to their sale to a consumer.
§ 11 Producer's liability
- If the Seller is responsible for damage to a product, he shall indemnify us against claims of third parties to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties.
- Within the scope of his indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a claim by a third party including recall actions carried out by us. We shall inform the Seller about the content and scope of recall measures - to the extent possible and reasonable - and give him the opportunity to comment. Further legal claims shall remain unaffected.
- The Seller shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 5 million per personal injury/property damage. The Seller shall send us a copy of the liability policy at any time upon request.
§ 12 Industrial property rights
- In accordance with paragraph 2, the Seller shall be responsible for ensuring that no third party property rights are infringed by products supplied by him in countries of the European Union or other countries in which he manufactures the products or has them manufactured.
- The Seller shall be obliged to indemnify us against all claims asserted against us by third parties on account of the infringement of industrial property rights referred to in paragraph 1 and to reimburse us for all necessary expenses incurred in connection with such claims. This claim shall not exist insofar as the Seller proves that it is neither responsible for the infringement of industrial property rights nor should have been aware of the infringement at the time of delivery if it had exercised due commercial care.
- Our further statutory claims based on defects of title of the products delivered to us shall remain unaffected.
§ 13 Statute of Limitations
- The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.
- In deviation from § 438 para. 1 no. 3 BGB (German Civil Code), the general limitation period for claims for defects shall be 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for third parties' claims in rem for surrender of the goods (Section 438 (1) No. 1 of the German Civil Code) shall remain unaffected; in addition, claims arising from defects of title shall not become time-barred under any circumstances as long as the third party can still assert the right against us - in particular in the absence of a limitation period.
- The limitation periods of the law on sales including the above extension shall apply - to the extent provided by law - to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply in this respect, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
- Upon receipt of our written notice of defect by the Seller, the limitation period for warranty claims shall be suspended until the Seller rejects our claims or declares the defect eliminated or otherwise refuses to continue negotiations on our claims. In the event of replacement delivery and rectification of defects, the warranty period for replaced and rectified parts shall start anew, unless we had to assume from the Seller's conduct that the Seller did not consider itself obliged to take the measure, but only carried out the replacement delivery or rectification of defects as a gesture of goodwill or for similar reasons.
§ 14 Inspections
- After prior notification in due time, we and/or third parties named by us who are bound to secrecy shall have the right to demand access to the Seller's and/or its subcontractors' production facilities during regular business hours in order to inspect, among other things, the production status, the use of suitable material, the deployment of the required skilled workers and the proper execution of the ordered performance.
- Such inspections shall be made without any legal effect with regard to a possible acceptance; an inspection shall neither replace an acceptance nor limit in any way the Contractor's sole responsibility with regard to its performance; in particular, no objection of contributory negligence on our part may be derived therefrom.
§ 15 Spare parts
- The Seller shall be obliged to keep spare parts for the products delivered to us in stock for a period of at least 5 years after delivery.
- If the Seller intends to discontinue the production of spare parts for the products delivered to us, it shall notify us thereof without undue delay after the decision on the discontinuation. Subject to paragraph 1, this notification must be made at least 6 months before production is discontinued.
§ 16 Severability clause
- Should individual provisions of these GPC be invalid in whole or in part or become invalid after conclusion of the contract, the remaining provisions and the validity of the contract as a whole shall remain unaffected. The ineffective provision shall be replaced by the effective provision which comes as close as possible to the sense and purpose of the ineffective/void provision.
§ 17 Choice of law and place of jurisdiction
- The law of the Federal Republic of Germany shall apply to these GPC and the contractual relationship between us and the Seller to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
- The exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship is our registered office in Remscheid. However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GPC or a prior individual agreement or at the general place of jurisdiction of the Seller. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.