Conditions of purchase
1. Area of validity
These General Terms and Conditions of Purchase (GTCP) apply to all business relationships with our business partners, in particular with our sellers and suppliers (hereinafter collectively referred to as: “suppliers”). The GTCP shall apply only if the supplier is an entrepreneur (Section 14 German Civil Code), a legal entity under public law or a special fund under public law. Unless otherwise agreed upon in writing, the following terms and conditions shall apply in particular to all orders and contracts for movable goods (hereinafter: “goods”), irrespective of whether the supplier manufactures the goods itself or purchases them from suppliers.
These GTCP apply exclusively. Deviating, opposing or amending general terms and conditions of the supplier shall become a component of the contract only and insofar as we have expressly consented to their validity in writing. This requirement of consent shall apply in any case, for example even if we accept the supplier's deliveries without reservation with knowledge of the supplier's general terms and conditions or if we refer to a letter containing and/or referring to the supplier's terms and conditions; this shall not constitute consent to the validity of those terms and conditions.
Only written orders and agreements are binding. The supplier must confirm each order. If we do not receive the written order confirmation within 14 days of the order date, we are entitled to cancel the order.
Order no., supplier no., order date and DP number must always be stated in order confirmations, delivery notes, invoices and all other documents.
The performance data included in our order or in the order confirmation shall be deemed to be the agreed quality. In case of permanent contractual relationships, the terms and conditions of purchase communicated to the supplier last shall apply to future contracts by force of the framework agreement without us having to refer to them separately.
The prices stated in the order are fixed prices including, insofar as not shown separately, legal value added tax as well as packaging and are understood to be free our plant or the delivery address stated by us.
4. Delivery period | contractual penalty
The delivery date specified by us in the order or otherwise decisive according to these GTCP is binding. Relevant for compliance with the delivery date is the receipt of goods at the point of receipt or usage location indicated. The delivery period starts running on the day of the order. If no individual agreement exists, the delivery period will be two (2) weeks. As soon as circumstances occur or become apparent on the basis of which the supplier can or must assume that it will not be able to make full or partial delivery on time, it must inform us of this stating the reasons and the expected duration of the delay without undue delay. Partial deliveries are permissible only if we agree to them in writing.
In the event of a delay in delivery, we shall be entitled to the statutory claims and rights without limitation, including the right to withdraw from the contract and the claim for damages instead of performance after a reasonable grace period has expired without results. Particularly in the event of a delay in delivery, we shall be entitled to demand a contractual penalty of 0.5 % of the agreed price of the entire delivery for each week of delay commenced, however at most 5 %. The contract penalty shall be offset against the damages for delay to be paid by the supplier. The right to assertion regarding further damages remains reserved.
5. Packing | shipping
The goods shall be packed professionally in compliance with any applicable packaging and preservation regulations and shall be delivered protected against damage. The specified packaging units must be adhered to. If goods are not packed as specified, delivery shall be deemed to have taken place only if our written consent for modified packaging has been given.
The most favourable transport route for us shall be chosen for shipping. A dispatch note with the data of our order and indicating the transport company must be sent to us for each delivery. In addition, each delivery must be accompanied by delivery notes with the reference, number and day of our order. If these are not enclosed with the order, the user shall not be responsible for the delay in processing and payment.
We are entitled to, at our discretion, return transport packaging to the supplier or to dispose of it ourselves. The supplier shall bear all costs arising from this.
6. Transfer of risk
The risk shall not be transferred to us until the delivery has been properly turned over at the specified place of dispatch, even if shipping has been agreed.
7. Payment terms
We shall make payment after complete receipt of the goods in accordance with the contract and receipt of a corresponding verifiable invoice either within 15 days with 3 % discount or within 30 days net. The payment period shall not begin before the agreed delivery date. The receipt of the transfer order at our bank will sufficient for the payment to be deemed punctual. The supplier shall be entitled to a right of set-off and a right of retention only on the basis of a counterclaim that is due, determined without further legal recourse and undisputed. We do not owe interest on maturity. Legal regulations shall apply to default of payment.
The supplier warrants that the delivery item is free from defects at the time it is turned over to us, has the agreed quality and complies with the latest state of the art, the relevant laws, protective and accident prevention regulations and the usual technical standards (e.g. ISO 9000 H, DIN, VDE, VDI, Ex guidelines).
The warranty also extends to the parts manufactured by any sub-suppliers.
In the normal course of business, we shall inspect received goods for obvious defects and on a random basis. Our obligation to give notice of defects discovered at a later time remains unaffected. Defects in the goods shall be reported to the supplier immediately upon discovery.
In the event of defects, we shall be entitled to the legal warranty rights. Supplementary performance shall also include the removal of defective goods and their renewed installation insofar as the goods were installed in another item in accordance with their intended purpose. The warranty period shall start again for replaced parts. If the supplier does not fulfil its obligation of supplementary performance within a reasonable period set by us, we can have defects remedied ourselves at its expense. No deadline needs to be set in urgent cases or if supplementary performance by the supplier has failed. We shall inform the supplier of such circumstances without undue delay. Contrary to Section 442 German Civil Code, the claims for defects exist without reservation even if the defect remained undetected at the conclusion of the contract as a result of gross negligence. In departure from that, the period of limitation shall be 3 years. This also applies to defects of title. The period of limitation shall apply to construction services.
9. Supplier’s recourse
We shall be entitled to our legally determined recourse claims within a supply chain (supplier’s recourse pursuant to Sections 478, 479 German Civil Code), in addition to the claims for defects, without reservation. In particular, we are entitled to demand precisely the type of supplementary performance (repair or replacement delivery) from the seller that we owe our customer in the individual case. Our statutory right of choice (Section 439 subsection 1 German Civil Code) will not be restricted by this.
Before we acknowledge or fulfil a claim for compensation for defects asserted by our customer, we shall notify the supplier and request a written statement briefly stating the facts of the case. If no statement is made within a reasonable period of time, and if no amicable solution is reached by other means, the claim for defects we actually conceded shall be regarded as owed to our customer. In this case, the supplier shall be obligated to provide evidence of the contrary. Our claims arising from the supplier’s recourse shall also take effect if the goods have been processed further prior to their sale.
Our claims from supplier’s recourse shall also apply if, prior to their sale to a consumer, the goods have been processed further by us or by one of our customers, e.g. through incorporation into another product.
10. Manufacturer liability
To the extent that the supplier is responsible for a product defect, it shall be obligated to exempt us from third-party claims for damages at the first request insofar as the cause of the loss is within its sphere of control and organisation and insofar as it is liable in the external relationship.
Within the scope of its indemnification obligation, the seller shall, pursuant to Sections 683, 670 German Civil Code, reimburse expenses arising from and/or in connection with a claim by a third party including recall actions carried out by us; this shall apply also in the event of noticeable and/or imminent serial defects. We shall inform the seller of the content and scope of the recall measures to be implemented – to the extent possible and reasonable – and give the seller the opportunity to state its position. Further legal claims remain unaffected.
The seller shall take out and maintain product liability insurance with an appropriate amount of coverage per personal injury / property damage. Upon request, it shall provide us with evidence of the existence of such insurance and the amount of cover.
11. Industrial property rights
The supplier shall be liable for ensuring that no industrial property rights copyrights of third parties and/or other rights as well as business or trade secrets of third parties are violated by the use of the delivered goods. It shall indemnify us against any claims of third parties and reimburse us for all necessary expenses in connection with such claims.
12. Preliminary work
The preparation of drafts, plans and cost estimates shall be free of charge for us.
Prior to the start of production, we shall be provided with working drawings for approval. Our approval does not release the supplier from full responsibility for technical correctness and feasibility. The definitive implementation plans, maintenance and operating instructions as well as spare parts lists for proper maintenance of the delivery are to be turned over to us during the assembly period.
13. Retention of title | provision | tools
We reserve our property rights and/or copyrights to samples, models, drawings and other documentation (hereinafter collectively referred to as “documents”), as well as to tools, devices, materials and other substances which we provide to the supplier for production. These may not be used by the supplier for its own purposes or those of third parties and must be adequately insured against loss and damage.
Tools, devices and models manufactured by the supplier for contractual purposes and charged to us separately by the supplier shall become our property.
Any processing, mixing or combining (hereinafter collectively referred to as “further processing”) of provided materials and other substances by the supplier shall be carried out for us. The same shall apply in the event of further processing of the delivered 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 legal regulations.
The supplier shall return to us the documents, tools, devices and materials made available or provided without undue delay either after the requests have been fulfilled or after the orders have been processed or at our request at any time.
Retentions of title by the supplier shall apply only insofar as they relate to our payment obligation for the respective products to which the supplier retains title. Particularly extended or prolonged reservations of title are not permitted.
14. Confidentiality | advertising
The supplier is obligated to treat as confidential all commercial or technical details which are not in the public domain and which become known to it through the business relationship as well as the terms and conditions of the order and to not to make them accessible to any third party. It shall oblige its subcontractors, employees and workers appropriately. The supplier is particularly obligated to treat as strictly confidential all received images, drawings, calculations and other documentation and information. They may be disclosed to third parties only with our express prior consent. The confidentiality obligation shall apply also after termination of the business relationship; it shall expire as soon as and insofar as the manufacturing know-how contained in the provided images, drawings, calculations and other documentation has become generally known.
The supplier may not refer to the business relationship in advertising material, brochures, etc. and may not exhibit delivery items manufactured for us without our prior written consent.
15. Obligations of the supplier with regard to work at the plant or the customer's premises
If agents of the supplier work in our plant or at the premises of one of our customers, the supplier shall instruct them to observe accident prevention regulations, EX directives and VDI regulations as well as our existing operating instructions.
The supplier shall be liable for all damage caused by it or its agents either intentionally or negligently at our plant or at the premises of our customers. It shall provide evidence of the existence of sufficient liability insurance upon request.
We shall be liable for any damage to property or personal injury only if we or our vicarious agents have breached essential contractual obligations or if damage has been caused intentionally or by gross negligence. Apart from that, claims for damages are excluded.
16. Subcontracting | assignment
Rights and obligations arising from the order are demisable only with our prior written consent unless the use of subcontractors is customary in the trade.
Furthermore, the supplier is not entitled to assign its claims arising from the contractual relationship to third parties. This shall not apply insofar as this concerns pecuniary claims.
17. Place of performance | place of jurisdiction | choice of law
The place of performance for both parties and the exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship shall be Lörrach. The law of the Federal Republic of Germany shall apply to the exclusion of the convention on the international purchase of goods (CISG) as well as the conflict-of-law rules of international procedural law which would lead to the possible application of a different law.