General Terms and Conditions – Purchasing
1. General, Scope of Application
1.1 These General Terms and Conditions of Purchase (GTCP) shall apply to all business relations with our business partners and suppliers (hereinafter: “Seller”). 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.
1.2 The GPC shall apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as “Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (§§ 433, 651 BGB). The GPC in their respective version shall also apply as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same Seller without us having to refer to them again in each individual case; we shall inform the Seller immediately of any changes to our GPC in this case.
1.3 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.
1.4 Individual agreements made with the Seller in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCP. A written contract or our written confirmation shall be authoritative for the content of such agreements.
1.5 Legally relevant declarations and notifications to be made by the Seller to us after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in writing and approved in order to be effective.
2. Conclusion of Contract
2.1 Our order shall be deemed binding at the earliest upon written submission or confirmation. 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. Cost estimates of the Seller shall be binding and shall not be remunerated by us unless expressly agreed otherwise.
2.2 The Seller shall be obliged to confirm our order in writing within a period of 10 days or to execute it without reservation, in particular by dispatching the goods (acceptance). A delayed acceptance shall be deemed to be a new offer and shall require acceptance by us.
3. Delivery time and delay in delivery
3.1 The delivery time specified by us in the order is binding. The Seller shall be obliged to notify us in writing without undue delay if it is likely that it will not be able to meet the delivery date – for whatever reason.
3.2 If the Seller fails to perform or fails to perform within the agreed delivery time or if the Seller is in default, our rights – in particular to rescission and damages – shall be determined in accordance with the statutory provisions. The provisions in para. 3 shall remain unaffected.
3.3 If the Seller is in default, we may – in addition to further statutory claims – demand lump-sum compensation for our damage caused by default in the amount of 1.0% 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 reserve the right to prove that we have incurred higher damages. The Seller shall have the right to prove that we have incurred no damage at all or only significantly lower damage.
3.4 If it becomes foreseeable that the agreed delivery period or the agreed delivery date will be exceeded, the Seller shall, without prejudice to its other obligations, immediately inform us in writing of the expected duration of the delay. The unconditional acceptance of the delayed delivery shall not constitute a waiver of the claims for compensation to which we are entitled on account of the delayed delivery.
4. Performance, Delivery, Transfer of Risk, Customs Regulations
4.1 Without our prior written consent, the Seller shall not be entitled to have the performance owed by it 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. sale of goods in stock).
4.2 Delivery shall be made “free domicile” within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, the delivery shall be made to our place of business in Efringen-Kirchen. The respective place of destination shall also be the place of performance (obligation to deliver). Imported goods shall be delivered duty paid. The Seller shall be obliged to provide, at its own expense, any declarations and information required by the customs authorities, to permit inspections by the customs authorities and to provide any official confirmations required. Any delays caused due to missing or defective declarations, information or documents of the Supplier shall be borne by the Seller.
4.3 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.
4.4 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. Handover or acceptance shall be deemed equivalent if we are in default of acceptance.
5. Prices and Terms of Payment
5.1 The price stated in the order shall be binding. All prices shall be inclusive of statutory value-added tax if this is not shown separately.
5.2 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). The Seller shall take back packaging material upon our request.
5.3 The agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance and certificates) and receipt of a proper invoice. If payment is made within 14 calendar days, the Seller shall grant us a 3% discount on the net 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 expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.
5.4 We do not owe interest on arrears. The interest on arrears shall be 5 percentage points per annum above the prime rate. The statutory provisions shall apply to the occurrence of our default, whereby, if applicable, a written reminder by the Seller shall be required in each case.
5.5 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.
5.6 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. Claims arising from contracts concluded with us may only be assigned with our written consent.
6. Secrecy and Retention of Title
6.1 We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. 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 must be kept secret from third parties, even after termination of the contract or after delivery of the service. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.
6.2 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 production. Such items shall – as long as they are not processed shall be stored separately at the Seller’s expense and insured to a reasonable extent against destruction and loss.
6.3 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 supplied goods 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.
6.4 The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. However, if in individual cases we accept an offer of the seller for transfer of title 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 prior to payment of the purchase price with advance assignment of the claim arising therefrom (alternatively validity of the simple reservation of title extended to the resale). This excludes 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.
7. Defective Delivery
7.1 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.
7.2 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. Furthermore, the Seller warrants that the delivered goods or the materials or substances used for their manufacture comply with all national and European legal provisions (in particular occupational safety, health, fire and environmental protection as well as building, trade and traffic regulations as well as the Equipment and Product Safety Act and implementation regulations) as well as all and any relevant technical conditions (in particular VDE, DIN, CE, GS, PTB, TÜV, FTZ, DVGW specifications) and bear the necessary test marks or conformity marks.
7.3 Notwithstanding Section 442 (1) sentence 2 of the German Civil Code (BGB), we shall also be entitled without restriction to claims for defects if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
7.4 The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duties of inspection and notification of defects, subject to the following proviso: Our duty of inspection shall be limited to defects which become apparent during our incoming goods inspection by means of external examination including the delivery documents as well as during our quality control by means of random sampling (e.g. transport damage, wrong and short delivery). If acceptance has been agreed, there shall be no no obligation to inspect. In other respects, it shall depend on the extent to which an inspection, taking into account the circumstances of the individual case, can be carried out. circumstances of the individual case in the ordinary course of business. 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 a maximum of 5 working days.
7.5 The costs incurred by the Seller for the purpose of inspection and rectification (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.
7.6 If the Seller fails to meet its obligation to remedy the defect – at our option by remedying the defect (rectification) or by delivering an item free of defects (replacement) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the expenses required for this purpose or a corresponding advance payment. 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.
7.7 Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to rescind 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.
8. Producer’s liability
8.1 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. In cases of fault-based liability, however, this shall only apply if the Seller is at fault. If the cause of the damage lies within the Seller’s sphere of responsibility, the Seller shall bear the burden of proof in this respect.
8.2 Within the scope of its 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 third parties including recall actions carried out by us, including the costs of any legal prosecution and defense. 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.
8.3 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.
9. Statute of Limitations
9.1 The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.
9.2 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims for defects shall be 3 years from the passing 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 claims in rem for surrender of property by third parties (Section 438 (1) No. 1 BGB) shall remain unaffected. Furthermore, claims arising from defects of title shall in no case become time-barred as long as the third party can still assert the right against us – in particular in the absence of a statute of limitations.
9.3 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 for this, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
10. Choice of law and place of jurisdiction
10.1 The law of the Federal Republic of Germany shall apply to these GPC and all legal relationships between us and the Seller to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The prerequisites and effects of the retention of title shall be governed by the law of the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective according to the latter.
10.2 If the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Efringen-Kirchen. However, we shall also be entitled to bring an action at the place of performance of the delivery obligation.