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§ 1 Validity
(1) All deliveries, services and offers by our suppliers are based exclusively on these General Conditions of Purchase. These form a part of all contracts concluded with our suppliers regarding supplies or services offered by them. They also apply to all future deliveries, services or offers to the client even where they are not separately agreed.
(2) The terms and conditions of our suppliers or third parties have no validity even where we do not contradict their application in individual instances. Even if we make reference to a communication containing or referring to the terms and conditions of the supplier or a third party this does not imply acceptance of the validity of those terms and conditions.
§ 2 Orders and contracts
(1) If our orders do not expressly contain a period of commitment we shall be bound hereto for one week following the date of the order. Critical for prompt acceptance is our receipt of the written declaration of acceptance. If no declaration of acceptance has been received from the supplier within five working days of the order being made the conditions and supply dates set out in the Conditions shall be considered as accepted.
(2) We are entitled to change the time and place of delivery, as well as the type of packaging, by written communication at any time within at least 14 calendar days of the agreed supply date. The same applies to changes to the product specifications in as far as they can be implemented without excessive additional effort within the supplier’s normal production process; in these cases the period of notification is at least 30 calendar days. We shall recompense the supplier for any additional costs agreed with us in advance that are incurred as a result of the change in question, provided these are reasonable and accompanied by proof. Where such changes entail delivery delays which cannot be avoided by reasonable effort within the framework of the supplier’s normal business operations the originally agreed delivery date shall be correspondingly postponed. The supplier shall notify us in writing well before the delivery date of his additional costs as expected after careful evaluation, at least, however, within ten working days of receipt of our communication, in compliance with Clause 1.
(3) We are entitled to cancel the contract in a written declaration, giving a reason for this, if we are unable to make use of the ordered products in our business as a result of circumstances arising after conclusion of contract. We shall in this case reimburse him for the work already carried out.
§ 3 Prices, payment conditions, billing information
(1) The price set out in this order is binding.
(2) In the absence of diverging written agreements the price includes delivery and transport to the dispatch address named in the contract, including packing.
(3) If the price for packing is not included in the concluded agreement, and the payment for packing has not been expressly stated, this is to be calculated in accordance with the actual verifiable cost incurred. This does not include packaging that has only been provided on loan. Upon our request the supplier is to take back packaging at his own cost.
(4) Unless a different agreement has been reached we shall pay the purchase price upon delivery of the goods and receipt of invoice within 14 days at 3% discount or within 60 days net.
(5) Our order numbers, item numbers, supplied quantities and delivery address are to be stated in all order confirmations. Should one or several pieces of information be omitted, resulting in a delay in processing within the context of our normal business operations, the payment deadlines named in Clause 4 shall be extended in accordance with the period of delay.
§ 4 Delivery time and delivery, transfer of risk
(1) The delivery time (date or deadline) stated in the order is binding. Premature deliveries are permitted only if previously agreed.
(2) The supplier is obliged to inform us in writing without delay if circumstances arise or can be foreseen that involve failure to adhere to the delivery date.
(3) If it is possible to set the latest day on which delivery in accordance with contract is to be effected the supplier shall be deemed to be in delay at the conclusion of this day, without a reminder from us being required.
(4) In the event of a delay in delivery we shall be entitled to a reasonable extension of time after unsuccessful expiry to the statutory claims without limitation (including the right to withdraw and entitlement to damages) in place of performance.
(5) In the event of delays in delivery following a previous written threat to the supplier we are entitled to demand a contractual penalty for every commenced week of delay amounting to 5% (with a maximum of 15% however) of the value of that part of the contract which has not been properly performed. The contractual penalty is to be calculated on the damages caused by the supplier’s delay.
(6) The supplier is entitled to make partial deliveries only upon prior agreement.
(7) Risk is only transferred to us, even if dispatch has been agreed, when the goods are consigned to us at the agreed destination.
§ 5 Property rights
(1) Orders and commissions submitted by us, as well as drawings, illustrations, calculations, descriptions and other documents made available to the supplier by us, remain our property or copyright. The supplier may not make these available to a third party without our express agreement, nor to notify them, to use them or copy them for himself or third parties. The obligation to confidentiality continues to apply after execution of the contract; it only ceases to apply when and in so far as the manufacturing know-how in the illustrations, drawings, calculations and other documents has become general knowledge. In the event of doubt the supplier shall obtain prior written agreement from us. He is to return to us these documents and any copies in full upon request from us if they are no longer required by him in the proper course of business or if negotiations do not lead to a conclusion of contract.
(2) Tools, apparatus and models made available by us to the supplier or manufactured for contractual purposes and separately charged to us by the suppliers remain our property or are transferred to our property. They are to be identified as our property by the supplier, to be stored carefully, protected from any kind of damage, and to be used only for contractual purposes. At the same time the supplier assigns to us all liability claims from this guarantee; we hereby accept this assignment. In the absence of any other agreement the costs of maintenance and repair of these items are to be borne 50 – 50 by the contractual partners. If, however, these defects are caused by items manufactured by the supplier or by improper use by the supplier, his employees and other assistants, the costs are to be borne by the supplier alone. The supplier shall notify us without delay of all significant damage to these items. Upon request he is obliged to hand over these items in proper condition if they are no longer required for the carrying out of the contract concluded with us.
(3) Reservation of proprietary rights of the supplier only applies in as far as it relates to our payment obligation for the product in question in which the supplier retains the property for himself. Additional or extended reservation of property is in particular not permitted.
§ 6 Warranty claims
(1) In the case of defects we are entitled to the legal claims without limitation; we are in every instance entitled to require that all suppliers either correct the defect or supply a new article, the choice between these being ours. The right to damages, especially the right to damages in place of performance, remains expressly reserved.
(2) Quality and quantity deviations are however deemed to be notified in good time if we report them to the supplier withing five working days of receipt of the goods by us. Concealed material defects are deemed to be notified in good time if they are reported to the suppliers within five working days of their discovery.
(3) We do not surrender warranty claims in accepting or approving submitted specimens or samples.
(4) We are entitled to remedy defects ourselves at the supplier’s cost where there is risk involved in delay or where there is particular urgency.
(5) If claims are asserted against us on the basis of the so-called entrepreneur's recourse in accordance with § 478 et seq. of the German Civil Code these regulations are also proportionally applicable to the suppliers even if subtractors and not they themselves are the manufacturer of our product in terms of § 478 et seq. of the Civil Code.
(6) Once our written notification of defects has been received by the supplier the limitation of warranty claims is suspended. When replacement delivery and the rectification of defects have been effected the warranty period for replaced and repaired parts begins anew, unless we had to presume from the supplier’s conduct that he did not consider himself to be bound to implement these measures but carried out the replacement delivery or correction of defects only for reasons of goodwill or on similar grounds. The limitation period is 36 months, or 48 months in the case of supplier’s recourse, calculated in either instance from the transfer of risk.
§ 7 Product liability
(1) The supplier is responsible for all third-party claims for personal injury or material damage caused by a faulty product supplied by him, and is bound to exempt us from liability resulting therefrom. Should we be obliged to conduct a recall from third parties of a defective product provided by the supplier he shall bear all costs associated with the recall.
(2) The supplier is bound to maintain product liability insurance at his own cost, with a minimum cover of EUR 10 million, which, unless something different has been agreed in individual cases, does not need to cover the risk of recall or similar damage. The supplier shall provide us on demand with a copy of the liability policy at any time.
§ 8 Property rights
(1) The supplier vouches that, in connection with his delivery, no third-party trademark rights in countries of the European Union, North America or other countries in which he manufactures the products, or has the products manufactured, are infringed.
(2) Should a claim be made by a third party on these grounds the supplier is bound to exempt us from these claims upon receiving our first written request; we are not entitled to come to any kind of agreement with the third party without the consent of the supplier, and especially not to come to an amicable settlement. The supplier’s obligation to exempt us relates to all expenses that necessarily arise from a third-party claim. The period of limitation is ten years, calculated from conclusion of contract.
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§ 9 Spare parts
(1) The supplier is bound to maintain spare parts for products supplied to us for a period of at least five years after delivery.
(2) Should the supplier intend to cease production of spare parts for products supplied to us he shall notify us of this without delay as soon as the decision to suspend production has been reached. This decision must – subject to Clause 1 – be taken at least six months before ceasing production.
§ 10 Retention of title
(1) Where we provide parts to the supplier we retain title to these. Manufacture or alteration by the suppliers is undertaken for us. If our goods that are subject to retention of title are manufactured along with other items that do not belong to us we shall acquire joint ownership of the new item in proportion to the value of our item (purchase price plus VAT) to the other items to be processed at the time of manufacture.
(2) If the item provided by us is inseparably mixed up with items not belonging to us we shall acquire joint ownership of the new item in proportion to the value of our item (purchase price plus VAT) to the other mixed up items at the time of amalgamation. If amalgamation is carried out in such a way that the supplier’s item is to be considered as the main item it is to be regarded as agreed that the supplier confers proportional joint ownership on us; the supplier retains sole or joint ownership for us.
(3) If our security rights in terms of Clause (1) and/or Clause (2) exceeds the purchase price of all our still unpaid reserved goods by more than 10% we are bound upon request by the supplier to approval of the safety rights at our discretion..
§11 Surrender
The supplier is not entitled to surrender his claims from the contractual relationship to third parties. This does not apply where monetary claims are involved.
§ 12 Place of performance, place of jurisdiction, applicable law
(1) The place of performance for both parties is Laatzen or Berlin.
(2) The sole place of jurisdiction for all legal disputes arising from, or in connection with, the contractual relationship is, as far as it is legally admissible, Berlin.
(3) The contracts concluded between ourselves and the supplier are exclusively subject, where permissible, to the law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. The application of the UN purchasing law is expressly excluded.
§ 13 Requirement to be in written form
Changes or additions to, or a revocation of, the contractual relationship is to be in written form to have legal validity. This applies also to any withdrawal from the requirement to be in written form. Additional oral agreements are not affected.
As of 03/2011 |
