General Purchase Conditions

§ 1 General regulations, scope of application

  1. These General Purchase Conditions (GPC) apply to all business relations with our suppliers/sellers. 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.
  2. The GPC apply in particular to contracts for the purchase and/or delivery of movable goods ("Goods"), irrespective of whether the Seller manufactures the Goods himself 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 us having to refer to them again in each individual case.
  3. These GPC apply exclusively. Any 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 agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if we accept the Seller's deliveries unconditionally in knowledge of the Seller's General Terms and Conditions.
  4. Individual agreements made in individual cases with the Seller (including side-agreements, supplements and amendments) shall in any case take precedence over these GPC. Subject to proof to the contrary, the content of such agreements shall be determined by a written contract or our written confirmation.
  5. 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 in order to be effective.
  6. The use of orders for reference and/or advertising purposes requires our prior written consent.
  7. References to the validity of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.

§ 2 Conclusion of a Contract

  1. Our order shall be deemed binding at the earliest if it has been placed or confirmed by us in writing. The use of telefax or e-mail shall suffice for the written form. The Seller shall notify us of 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.
  2. The seller is obliged to confirm our order in writing within a period of 5 working days or, in particular, to execute it unconditionally by dispatching the goods (acceptance). Silence within this period shall be considered as acceptance. After expiry of this period, we shall no longer be bound by our order (our offer). We shall not accept declarations made by the Supplier in relation to our order (our offer) which alter our order (our offer) and which thus constitute a new offer by the Supplier.
  3. Late acceptance of an order shall be deemed a new offer and shall require acceptance by us.
  4. We shall be entitled to demand changes to product specifications insofar as these can be implemented without considerable effort within the scope of the Seller's normal production process, whereby in such cases we shall grant the Seller a reasonable period of time for the corresponding changes. We shall reimburse the Supplier for the proven and reasonable additional costs incurred as a result of the change. If such changes result in delays in delivery which cannot reasonably be avoided in the Supplier's normal production and business operations, the originally agreed delivery date shall be postponed accordingly.
  5. The Seller shall be obliged to inform us immediately in writing whether and to what extent national export permits are required in whole or in part for the order or whether similar legal or official requirements have to be fulfilled or whether they are subject, for example, to US American export restrictions.

§ 3 Delivery time and delay in delivery

  1. The delivery date stated by us in the order is binding. The Seller shall be obliged to inform us immediately in writing if it is likely that he will not be able to meet the agreed delivery date - for whatever reason. Decisive for the adherence to the delivery date is the proper receipt of the goods and any documents provided at the agreed delivery address or the punctuality of the successful acceptance, if such is necessary.
  2. If the Seller does not provide his contractual performance or does not provide it at/by the agreed delivery date, he 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 section 4 shall remain unaffected.
  3. The Seller can only invoke the absence of necessary documents to be supplied by us if he has reminded us of the documents in writing and has not received them within a reasonable period of time.
  4. If the Seller is in default, we may demand a contractual penalty of 0.5% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods delivered late. We shall be entitled to demand the contractual penalty in addition to performance and as a minimum amount of damages owed by the Seller in accordance with the statutory provisions; the assertion of further damages shall remain unaffected. If we accept the delayed performance, we will assert the contractual penalty at the latest with the final payment.
  5. In the event of delivery earlier than agreed, we reserve the right to return the goods at the expense of the Seller. If the goods are not returned in the event of premature delivery, they shall be stored by us until the agreed delivery date at the expense and risk of the Seller. In the event of premature delivery, we reserve the right to make payment only on the agreed due date.

§ 4 Performance, Delivery, Transfer of Risk, Packaging Material, Default in Acceptance

  1. Without our prior written consent, the Seller shall not be entitled to have the performance owed by him performed by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for his services unless otherwise agreed in individual cases (e.g. limitation to stock).
  2. Delivery shall be made within Germany in accordance with Incoterms (2010) CIP, in the case of delivery from abroad Incoterms (2010) CIP, to the place specified in the order. If the place of destination is not specified and nothing to the contrary 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).
  3. The delivery must be accompanied by a delivery note 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 note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. Separately from the delivery note, a corresponding dispatch note with the same content shall be sent to us.
  4. The Seller shall take back any packaging material free of charge.
  5. The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law governing contracts for work and services shall also apply mutatis mutandis to acceptance. If we are in default of acceptance, this shall be deemed to be equivalent to handover or acceptance.
  6. The statutory provisions shall apply to the occurrence of our default of acceptance. However, the Seller must also expressly offer his services to us if a specific or determinable calendar period 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 reimbursement of his additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to an individual item to be manufactured by the Seller, the Seller shall only be entitled to further rights if we had been obliged to cooperate and are responsible for the failure to cooperate.

§ 5 Delivery of Dangerous Goods

  1. Before accepting the order, it is the Seller's responsibility to check whether the items specified in the order and/or their components are to be classified as dangerous goods in the country of origin, country of destination and/or all transit countries (e.g. paints, adhesives, chemicals or flammable, oxidizing, explosive, combustible, toxic, radioactive, corrosive or goods prone to self-heating). In such cases the Seller shall inform us immediately and comprehensively. At the latest with his written order confirmation, he must send us the legally required binding declarations for the dispatch of such goods, correctly filled in and signed.
  2. When packaging, labelling and declaring dangerous goods, the Seller is obliged to comply with the applicable national and international regulations. These would be in particular with sea freight: Dangerous Goods Ordinance - SEA IMDG Code; with air freight: UNICAO IATA RAR US-Dot; with transport by rail: EVO/RID as well as Dangerous Goods Ordinance - Rail; with transport by road: ADR as well as Dangerous Goods Ordinance - Road; and in generally: Dangerous Goods Ordinance.
  3. Any deviating and/or additional national regulations of the respective receiving country shall also be observed if the receiving country was specified in the order.
  4. The Seller shall be liable for all damage resulting from incorrect statements in the mandatory declarations or from non-compliance with existing regulations in the handling (packaging, dispatch, storage, etc.) of dangerous goods.

§ 6 Prices and terms of payment

  1. The price stated in the order is binding. All prices are quoted inclusive of statutory value added tax, unless this is shown separately.
  2. 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).
  3. The agreed price is due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller shall grant us a discount of 3% on the gross amount of the invoice. In the case of bank transfers, payment shall be deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.
  4. We do not owe any interest on maturity. The statutory provisions shall apply to default in payment.
  5. We shall be entitled to set-off and retention rights as well as the defence of non-performance of the contract to the extent permitted by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims from incomplete or defective services/delivery against the Seller.
  6. The Seller shall have a right of set-off or retention only on account of counterclaims which have been established as legally binding or which are undisputed.

§ 7 Confidentiality and retention of title

  1. We reserve the right of ownership to illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents provided by us. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents are to be kept secret from third parties; reference is made to the separate non-disclosure agreement.
  2. 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 manufacturing. Such items shall - as long as they are not processed - be kept separately at the Seller's expense and insured to an appropriate extent against destruction and loss.
  3. Any processing, mixing or combination (further processing) of items by the Seller, which had been provided by us, shall be carried out on our behalf. The same applies to further processing of the delivered goods by us, so that we are deemed to be the manufacturer and acquire ownership of the product in accordance with the statutory provisions at the latest upon further processing.
  4. The transfer of ownership of the goods to us must take place unconditionally and regardless of the payment of the price. If, however, in individual cases, we accept an offer by the Seller to transfer ownership conditional on the payment of the purchase price, the Seller's retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. We shall remain authorised to resell the goods in the ordinary course of business, even before payment of the purchase price, by assigning the claim arising therefrom in advance. This excludes all other forms of retention of title, in particular the extended retention of title, the forwarded retention of title and the retention of title extended to further processing.

§ 8 Work results

  1. Unless expressly agreed otherwise in the contract, we shall be exclusively entitled worldwide to all rights of protection, use and exploitation 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 transfers these to us, which we accept. For clarification: We are not entitled to any rights to improvements independently developed by the Seller, separable, i.e. usable without infringement of our rights to the provision of materials. Insofar as a transfer of rights is not legally permissible, the Seller shall be liable to us for the cost- and burden-free granting of an exclusive, spatially and temporally unlimited, free of charge, assignable and sub-licensable license for all known types of use without consent. The Seller hereby grants us this license and we accept it.
  2. We shall also be granted exclusive rights in accordance with the preceding paragraph to all results of development work paid for by us, with the proviso that we shall only be granted non-exclusive rights to use and exploit works or inventions included in a result which were not specifically developed for us ("third-party products") to the extent necessary or beneficial for the use or exploitation of the work result, provided that the 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 any materials provided by us). If a third-party product has been incorporated into a result without our consent, these restrictions shall not apply and we shall be granted exclusive rights to the entire result.
  3. We shall also receive exclusive rights in accordance with the above paragraphs to all other results of the parties' cooperation in accordance with the contract, unless otherwise agreed in the contract. The Seller hereby grants us all aforementioned rights and we accept them. We reserve all rights to all our supplies and confidential information. 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. Products manufactured according to documents designed by us, such as drawings and the like, or according to our confidential information, may not be used by the Seller himself outside the contract, nor offered or supplied to third parties.

§ 9 Warranty

  1. The Seller warrants that all goods comply with recognised rules and the latest state of the art as well as all laws, regulations and standards applicable in the country of destination.
  2. The statutory provisions shall apply to our rights in the event of physical and legal defects in the goods (including incorrect 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 specified below.
  3. In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality upon transfer of risk to us. Any product descriptions which - in particular by description 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, the Seller or the manufacturer.
  4. Deviating from § 442 section 1 sentence 2 BGB (German Civil Code), we shall also be entitled to claims for defects without restriction if the defect remained unknown to us as a result of gross negligence when the contract was concluded.
  5. The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial obligation to inspect and give notice of defects with the following proviso: Our obligation to inspect shall be limited to defects which become apparent during our incoming goods inspection under visual examination including the delivery documents as well as during our quality inspection by random sampling (e.g. transport damage, wrong and short delivery). If acceptance has been agreed, there shall be no obligation to inspect. Otherwise it depends 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 complaints (notification of defects) shall be deemed immediate and timely if they are received by the Seller within 5 working days.

  1. The costs incurred by the Seller for the purpose of inspection and replacement deliveries (including any dismantling and installation costs) shall be borne by the Seller even if it turns out that no defect actually existed. Our liability for damages in the event of an unjustified demand to remedy defects shall remain unaffected; in this respect, however, we shall only be liable if we have recognised or grossly negligently failed to recognise that no defect existed.
  2. Repairs or replacement deliveries shall, if necessary, be carried out in multiple shifts or in overtime or on public holidays if this is necessary for urgent operational reasons and reasonable for the Seller.
  3. If the Seller does not fulfil his obligation to subsequent performance - at our option either by remedying the defect (repair) or by supplying a defect-free item (replacement delivery) - within a reasonable period set by us, we shall be entitled to remedy the defect ourselves and demand reimbursement from the Seller of the expenses incurred or an appropriate advance payment. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline shall be set; we shall inform the Seller of such circumstances immediately, if possible in advance.
  4. In addition, we shall be entitled to reduce the purchase price or withdraw from the contract in the event of a physical or legal defect 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

  1. We shall be entitled to our legally determined recourse claims within a supply chain (supplier recourse in accordance with §§ 478, 479 BGB) without restriction in addition to the claims based on defects. In particular, we shall be entitled to demand from the Seller exactly the type of subsequent performance (repair or replacement) which we owe to our customer in individual cases. Our statutory right of choice (§ 439 section 1 BGB) is not restricted by this.
  2. Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 478 section 2, 439 section 2 BGB), we shall notify the Seller, briefly explaining the facts of the case, and request a written statement from him. 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 obliged to provide proof to the contrary.
  3. Our claims arising from supplier recourse shall also apply if the goods have been further processed by us or one of our customers, e.g. by installation in another product, prior to their sale to a consumer.

§ 11 Manufacturer's liability

  1. If the Seller is responsible for damage to a product, he shall indemnify us against claims by third parties to the extent that the cause lies within his sphere of control and organisation and he himself is liable externally.
  2. Within the scope of his obligation to indemnify, the Seller shall reimburse expenses pursuant to §§ 683, 670 BGB which arise from or in connection with claims by third parties, including recall actions carried out by us. We shall inform the Seller - as far as possible and reasonable - of the content and scope of recall measures and give him the opportunity to comment. Further statutory claims remain unaffected.
  3. 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 Intellectual property rights

  1. In accordance with section 2, the Seller warrants that no intellectual property rights of third parties in countries of the European Union or other countries in which he manufactures or has manufactured the products are infringed by products supplied by him.
  2. The Seller shall be obliged to indemnify us against all claims asserted against us by third parties due to the infringement of intellectual property rights referred to in section 1 and to reimburse us for all necessary expenses in connection with such assertion. This claim shall not exist if the Seller can prove that he is neither responsible for the infringement of intellectual property rights nor should have been aware of it at the time of delivery if he had exercised due commercial care.
  3. Our further legal claims due to legal defects of the products delivered to us remain unaffected.

§ 13 Time limitation

  1. The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.
  2. Deviating from § 438 section 1 no. 3 BGB, the general limitation period for warranty claims is 3 years from the passing of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall also apply mutatis mutandis to claims arising from legal defects, whereby the statutory limitation period for third party claims for restitution of property (§ 438 section 1 no. 1 BGB) shall remain unaffected; furthermore, claims arising from legal defects shall in no case become statute-barred, as long as the third party can still assert the right against us - in particular in the absence of a limitation period.
  3. The limitation periods of the sales law including the above extension apply - to the extent permitted 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, unless the application of the limitation periods of the sales law in individual cases leads to a longer limitation period.
  4. Upon receipt of our written notice of defects by the Seller, the limitation period for warranty claims shall be suspended until the Seller rejects our claims or declares the defect to have been remedied or otherwise refuses to continue negotiations on our claims. The warranty period for replaced and repaired parts shall commence again in the event of a replacement delivery and repair of defects, unless we had to assume, in accordance with the Seller's conduct, that the Seller did not consider itself obligated to take the measure, but only carried out the replacement delivery or repair of defects as a gesture of goodwill or similar reasons.

§ 14 Inspections

  1. After timely prior notification, we and/or third parties designated by us who are bound to secrecy shall have access to the Seller's production facilities and/or its subcontractors during normal business hours in order to inspect, among other things, the production status, the use of suitable materials, the deployment of the necessary specialists and the professional execution of the ordered service.
  2. Such inspections shall be carried out without any legal effect with regard to any acceptance; an inspection shall neither replace an acceptance nor in any way limit the sole responsibility of the Contractor with regard to his services; in particular, no objection of contributory negligence on our part can be derived therefrom.

§ 15 Spare parts

  1. The Seller is obliged to keep spare parts for the products delivered to us in stock for a period of at least 5 years after delivery.
  2. If the Seller intends to discontinue the production of spare parts for the products delivered to us, he shall inform us of this immediately after the decision to discontinue the production. Subject to section 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 by this. The invalid provision shall be replaced by a valid provision that comes as close as possible to the meaning and purpose of the invalid provision.

§ 17 Choice of law and place of jurisdiction

  1. The law of the Federal Republic of Germany shall apply to these General Purchase Conditions and the contractual relationship between us and the Seller under exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
  2. The exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship is our registered office in Remscheid. In all cases, however, we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GPC or in accordance with a prior individual agreement or at the Seller's general place of jurisdiction. Prior statutory provisions, in particular regarding exclusive places of jurisdiction, shall remain unaffected.