Section 1 General - Scope of Application
These Terms and Conditions of Purchase apply exclusively to entrepreneurs (Section 14 of the German Civil Code (BGB)), legal entities under public law and public-law special funds (hereinafter referred to as "supplier").
These Terms and Conditions of Purchase apply to all our orders. They likewise govern purchase contracts, contracts for work and services, service contracts and similar contracts. The contractual performance owed by the supplier under the aforementioned contracts is hereinafter referred to as "performance". The Terms and Conditions of Purchase are applicable to all present and future transactions with the supplier, both in respect to any supply/framework contract and individual contracts and/or any orders within the framework of a contract with the supplier.
These Terms and Conditions of Purchase are valid without exception. Any terms and conditions of the supplier to the contrary or deviating from our Terms and Conditions of Purchase are hereby rejected, unless we explicitly agreed to them in writing.
Our Terms and Conditions of Purchase also apply if we unconditionally accept or pay for deliveries of goods and services of the supplier in full knowledge of the terms and conditions of the supplier which conflict or deviate from our Terms and Conditions of Purchase.
Any individual or verbal agreements made with the supplier in a specific matter (including collateral agreements, amendments and supplements) have precedence over these Terms and Conditions of Purchase in any case. The content of such agreements is subject to a written contract or our written confirmation.
All legally binding declarations and notifications to be made to us by the supplier after conclusion of the contract, for whatever legal reason, must be made in writing to become effective.
Any electronic correspondence by e-mail fulfils this written form requirement.
Section 2 Offers, Orders, Conclusion of Contract, Call for Delivery
Offers of the supplier must be made in writing and free of charge. If the offer is made on the basis of our inquiry, the supplier must observe our specifications. The supplier undertakes to explicitly notify us in writing of any deviations arising hereunder.
The supplier is obliged to accept the order within a period of 5 working days (or any other period specified in the order) after receipt by a written order confirmation. We are entitled to revoke the order as soon as this period expires.
Any delayed acceptance of the order is deemed to be a new offer and is subject to our acceptance. Unless explicitly agreed otherwise, cost estimates are binding and not to be reimbursed. Solely our written order is decisive for the type and scope of delivery. We only accept orders in writing bearing a legally valid signature or using a form. The supplier is obliged to notify us of obvious errors (e.g. spelling and calculation errors) and of any incomplete order, including the order documents, for the purpose of correction or completion prior to acceptance; otherwise the contract is not deemed to be concluded.
Delivery call-offs become binding insofar as the supplier does not object within 5 working days of receipt.
Section 3 Prices, Terms of Payment, Set-off, Retention, Assignment
All prices stated in the order are binding and, insofar as not explicitly agreed otherwise, are fixed prices delivered carriage-paid at place of destination (Incoterms 2010 C "DAP" Delivered At Place) including packaging and the statutory value-added tax, unless indicated specifically. They include, insofar as not explicitly agreed otherwise, all services and ancillary services of the supplier (e.g. assembly, installation, travel expenses etc.) as well as all ancillary costs (e.g. packaging, transport costs including any transport and liability insurance). This also applies if we exceptionally share in any transport costs or transport insurance or request a specific type of transport. Any packaging material must be taken back by the supplier at our request.
Verifiable invoices are to be sent to the agreed invoice address in accordance with the latest invoicing regulations and pursuant to the applicable tax legislation. Invoices must contain the order number stated in the order. Invoices must be accompanied by documents relating to the complete delivery of the goods. In the event of non-compliance with one of these requirements, we are entitled to a right of retention until proper fulfilment of such requirements.
In the absence of any agreement to the contrary, the payment period is 30 days from complete fulfilment of the order (including any agreed acceptance) and receipt of a properly issued invoice. If the supplier is responsible for the provision of test reports, quality documents or other documents, receipt of such documents is required for complete fulfilment of the order (see above). Unless otherwise agreed, the supplier grants a discount of 3% on the net amount of the invoice for payment within 14 days. Discounts may also be deducted if we are entitled to set-off or if we retain a reasonable amount due to any defects.
There is no interest payable after the due date. The statutory provisions apply in the event we are in default of payment, notwithstanding the foregoing, where applicable, requiring a written reminder from the supplier in any case.
We are entitled to the statutory rights of set-off and retention as well as to the objection of non-fulfilment of the contract. In particular, we are entitled to withhold due payments as long as we still hold claims against the supplier arising from incomplete or defective services. The supplier has a right to set-off or retention only on the grounds of counterclaims which have been legally established by a court of law or which are uncontested or acknowledged by us. The supplier is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
Any rights arising from the contractual relationship may only be assigned with our prior written consent.
Section 4 Period of Performance, Delay in Performance, Contractual Penalty
The delivery time stated in the order as well as other deadlines for rendering performance are binding. The timely performance depends on the proper receipt at our place of business in Haan or at the place of receipt specified in the order, in the event of agreed acceptance, on such acceptance as well as on the proper and timely fulfilment of any performance specified in Section 3.
The supplier herewith agrees to notify us in writing without undue delay if any reasons arise or become evident which are likely to make timely performance impossible for any reason whatsoever. To the extent possible, the supplier undertakes to specify the expected time of performance. Any claims we may have against the supplier for delay in performance remain unaffected herefrom.
If the supplier does not render his performance or does not do so within the agreed performance period or if he is in default, we are particularly entitled to withdraw from the contract and to claim for damages as provided by law. The provisions in the following paragraph remain unaffected herefrom. If we claim for any damages, the supplier has the right to prove that he is not responsible for the breach of duty.
In the event that the supplier is in default, we are entitled to claim for a contractual penalty of 2% of the net price per completed calendar week, up to a total of 10% of the net price of the delayed performance. We are entitled to claim for such contractual penalty apart from fulfilment of the contract as a minimum amount of damages payable by the supplier pursuant to the statutory provisions; the right to claim for further damages remains unaffected. In particular, we reserve the right to claim a lump sum of …………………. € as compensation for expenses incurred by us; the supplier reserves the right to provide evidence that a claim for reimbursement of expenses is non-existent or substantially lower.
In case we accept the delayed performance, we reserve the right to assert any contractual penalty until the time the contract justifiying the contractual penalty is completed.
The supplier assumes responsibility for the choice of his subsuppliers and is liable for their rendering of performance in the same manner as for his own performance. We are entitled to fully or partially preclude the deployment of subsuppliers in the order.
Section 5 Performance, Passing of Risk
Without our prior written consent, the supplier is not entitled to have any third parties render any of his performance hereunder. The supplier assumes the procurement risk for his performance, unless otherwise agreed on an individual basis. Delay on the part of the subsuppliers is the responsibility of the supplier.
Unless otherwise agreed in writing, any performance is to be rendered "carriage paid" to the place specified in the order. The Incoterms 2010 C "DAP" (Delivered at Place) apply to the delivery of goods. Insofar as the place of destination is not specified and nothing to the contrary has been agreed, deliveries must be made to our place of business in Haan. Such place of destination is also considered to be the place of fulfilment (obligation to provide ("Bringschuld")). To the extent that acceptance has been agreed, such acceptance is decisive as to the passing of risk. Moreover, the statutory provisions of the German law on contracts for work and services apply accordingly in any other respect.
Partial deliveries are generally not permitted unless we have explicitly agreed to them in writing, whereby electronic communication is accepted.
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 reference (date and number). If the delivery note is missing or incomplete, we are entitled to reject the delivery.
The risk of accidental loss and accidental deterioration of the goods is passed to us at the time of handover at the place of fulfilment as soon as the supplier has made any delivery to our premises (DAP Incoterms 2010C).
The same applies if a dispatch sale has been divergently agreed in individual cases (Section 447 of the German Civil Code (BGB)). Insofar as any acceptance has been agreed, such acceptance is decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services apply mutatis mutandis in case such an acceptance has been agreed. The statutory provisions apply where a delay in acceptance occurs. However, the supplier must also expressly offer his performance to us where a certain or determinable calendar period has been agreed for us to act or cooperate in any way.
Section 6 Quality Assurance, Incoming Goods Inspection
The supplier undertakes to maintain a state-of-the-art quality management system ("QMS"). The supplier is obliged to carry out continuous in-process controls in accordance with his QMS. Wherever necessary, an inspection plan for a special pre-stage inspection is agreed with the supplier. We have the right to carry out a supplier audit on site at regular intervals subject to prior appointment.
The supplier carries out a final inspection of the products ensuring that only fault-free goods are delivered.
The statutory regulations (Sections 377, 381 of the German Commercial Code (HGB)) are applicable to the commercial duties of inspection and notification of defects subject to the following: Our duty to inspect is limited to defects which become clearly evident upon visual check during the incoming goods inspection, including examination of the delivery documents, as well as during our quality control by random sampling. Insofar as acceptance has been agreed, there is no obligatory inspection to be carried out. The obligation to give notice of any subsequent defects remains unaffected; in all cases, the notice of defects is considered to be immediate and in due time if it is received by the supplier within 5 days.
Section 7 Warranty, Liability for Defects, Statute of Limitations
The supplier is liable for legal and material defects (including wrong and short deliveries as well as improper assembly, defective assembly, operating or user manuals) as well as for other breaches of duty in accordance with the statutory provisions. The supplier warrants that the performance will meet the requirements agreed by contract, will have the features assured and will be free from defects at the time of transfer of risk. Any product specifications which - in particular by designation or reference in our order - are the subject matter of the respective contract or which have been included as part of the contract in the same manner as these Terms and Conditions of Purchase constitute an agreement on quality. In this regard, it makes no difference whether the product specifications are provided by us, by the supplier or by third parties.
With regard to subsequent performance, we are entitled to demand from the supplier, at our discretion, either the remedy of defects or the delivery of new goods. The right to claim damages, in particular to compensation for damages in lieu of performance, herewith remains expressly reserved. If the supplier meets his warranty obligations within the limitation period by replacement delivery or remedy of defects, the limitation period for the subsequent performance recommences at the time when the supplier has completely fulfilled our claims for subsequent performance.
The supplier is to bear any and all costs thereby incurred. If the supplier fails to comply with his obligation to subsequent performance within a reasonable period set by us, such subsequent performance fails, is refused, is impossible or unreasonable, we may reasonably reduce the purchase price or withdraw from the contract and/or claim damages or, in the case of contracts for work and services, remedy the defect ourselves and demand reimbursement from the supplier for the expenses incurred or demand a corresponding advance payment or terminate the contract. In the case of ongoing deliveries, we may withdraw from or terminate the contract in its entirety in any case if at least two deliveries have been carried out incorrectly in whole or in part. In any case of a justified complaint, we reserve the right to claim a lump sum of …………………. € as compensation for expenses incurred by us; the supplier reserves the right to provide evidence that a claim for reimbursement of expenses is non-existent or substantially lower.
Insofar as subsequent performance by the supplier has failed or is unreasonable for us (e.g. due to particular urgency, risks to operational safety or threat of disproportionate damage), no deadline need to be set; we undertake to inform the supplier of such circumstances immediately, if possible in advance.
The costs incurred by the supplier for purposes of inspection and subsequent performance (including any assembly and transport costs) must be borne by the supplier even if it is established that such defect did not actually exist. Our liability for damages in the event of an unjustified request to remedy defects remains hereby unaffected; in this respect, however, we will be liable only if we have acknowledged or grossly negligently failed to recognise that no defect existed.
The payment of the agreed price does not constitute an acknowledgement that a performance is free of defects.
Section 8 Statute of Limitations
The mutual claims of the contractual parties become time-barred 36 months as of the transfer of risk, unless mandatory legal provisions (Sections 478, 479 of the German Civil Code (BGB)) apply. Insofar as acceptance has been agreed, the limitation period commences upon acceptance.
Section 9 Liability, Product Liability, Indemnity, Liability Insurance Cover
Pursuant to the statutory provisions, the supplier assumes full liability towards us for all damages and costs incurred by us due to a culpable breach of duty or poor performance on the part of the supplier. The supplier fully indemnifies us against any claims of third parties resulting therefrom upon first request.
Under his obligation to indemnify, the supplier is obliged to reimburse any expenses in accordance with Sections 683 and 670 of the German Civil Code (BGB) arising out of or in connection with any third-party claims, including any recall activities carried out by us.
We agree to inform the supplier, as far as possible and reasonable, of the content and scope of any recalls as well as to give the supplier the opportunity to comment thereon. Any further legal claims remain unaffected.
During the term of the contract, including guarantees and periods of limitation for claims based on defects, the supplier undertakes to conclude and maintain a business liability insurance as well as a product liability insurance covering an amount of EUR 10 million per person/property damage and to provide us with evidence of such insurance upon request.
The insurance cover must be effective at the time of the order and remain in effect until one calendar year following the last performance rendered by the supplier. The supplier ensures that subsuppliers deployed by him hold the same insurance coverage.
Section 10 REACH Conformity and Duty of Information
The supplier undertakes to comply with the REACH Regulation (Regulation EC No. 1907/2006) for the services and goods delivered to us, including packaging. The supplier particularly assures that the services and goods delivered as well as their packaging do not contain any substances from the current candidate list pursuant to Art. 53 Para. 1 of the Regulation in a quantity exceeding 0.1% by mass (SVHC substances). The supplier is obliged to (pre-)register all substances supplied to us himself or by preliminary suppliers, insofar as he is subject to registration obligations under REACH. In case the supplier himself is not required to register pursuant to the REACH Regulation, he commits his preliminary suppliers to comply with their REACH obligations. Any registration made by the supplier or his preliminary suppliers with regard to the services and goods supplied must be provided to us in writing on our request.
The supplier warrants that, if any substances covered by REACH are contained in his services and goods or their packaging, these are registered in accordance with the REACH Regulation. He undertakes to provide us with all information and documentation required by the Regulation (including but not limited to Art. 31 et seq. of the REACH Regulation) within the periods stipulated in the REACH Regulation or to forward such information from his preliminary suppliers to us without undue delay.
Insofar as any customer, competitor or authority asserts a claim against us due to a breach of REACH provisions which is attributable to a performance rendered by the supplier, we are entitled to require the supplier to indemnify us from such claims or to compensate us for any damages caused by the non-existent REACH conformity.
The aforementioned obligations apply accordingly (except for the registration obligations) if the supplier is domiciled in a non-EU country. In particular, the supplier must notify us of any SVHC substance exceeding 0.1 % or any substances covered by REACH that may be released under normal and foreseeable conditions of use.
Section 11 Documentation, Retention Period, Industrial Property Rights, Rights of Use,
Indemnification, Statute of Limitations
We reserve all proprietary rights and copyrights to any and all illustrations, plans, sketches, drawings, calculations or other documents or other information subject to protection provided by us. It is prohibited to disclose such documents and/or information to third parties without our express written consent. The obligation of confidentiality pursuant to Section 16 is applicable hereunder.
The supplier is obliged to document all information and documents pertaining to the contract and its execution and fulfilment and to keep them for 15 years. This period begins upon placement of the order.
Insofar as we provide the supplier with the aforementioned documents for the purpose of rendering performance, the supplier obtains the non-exclusive right of use for internal usage, which may be revoked at any time and is limited to the duration of the contract. Such right of use does not include reproduction, distribution, processing or disclosure to the public, irrespective of the medium.
The supplier is not allowed to use such proprietary information for the processing of orders from other suppliers.
To the extent that new protectable deliverables result from such cooperation, the contractual parties will enter into a separate agreement regarding the registration and use of such deliverables, in which the development effort will be reasonably reflected on a proportionate basis. However, we acquire at least a non-exclusive right to use the subject matter protected by the intellectual property right that is unlimited in time, content and location and at no cost.
Furthermore, the supplier grants us the non-exclusive, locally and timely unlimited, transferable right to use the goods including the associated documentation, to integrate them into other products and to distribute them worldwide, to use software and the associated documentation by installation and commissioning, testing and running the software and the goods or to have it used, to use and copy the software for the integration into other products, to distribute, sell, rent, lease the software or make it available for download or accessible to the public.
We are also entitled to sublicence the aforementioned right of use to our customers. All sublicences granted by us must provide adequate protection for the supplier's intellectual property in the software by enforcing the same contractual terms and conditions that we use to protect our own intellectual property.
The supplier warrants that the performance rendered is free from the rights of third parties in the Federal Republic of Germany or, as far as the supplier has been informed thereon, in the country of destination. The supplier agrees to indemnify us, upon our first written request, from any claims of third parties which are raised against us due to a culpable infringement of industrial property rights and to reimburse us for all reasonable expenses and costs incurred by us in connection with the defence of such claims, unless the supplier furnishes evidence that he is not responsible for the breach of duty.
We are not entitled to conclude any agreements with such third party, in particular to reach a settlement, without the supplier's consent. The contractual parties agree to notify each other immediately in writing in the event that claims are asserted against any of them for infringement of industrial property rights.
Whenever the contractual use of the performance rendered is impaired by industrial property rights of third parties, the supplier, notwithstanding any other contractual and statutory obligations, is obliged to either procure the right from the party entitled to dispose of such industrial property rights, after consultation with us and at his own expense, that the performance rendered can be used by us as agreed without restriction and at no additional cost or that the IPR protected parts of such performance can be modified in such a way that they fall outside the scope of protection but nevertheless comply with the contractual provisions.
The limitation period is 36 months from the passing of risk.
Section 12 Spare Parts
The supplier ensures and undertakes to ensure that it is possible for us or our customers to be supplied with the required replacement items or spare parts for the contractual products for a period of a further 10 years after the last series delivery at reasonable standard commercial conditions.
Section 13 Tools, Materials, Parts, Samples
If we provide tools, materials, parts and samples for the rendering of performance, these remain in our possession and ownership (German: "Besitzmittlungsverhältnis", constitutum possessorium). The supplier is obliged to use the tools exclusively for the production of the performance ordered by us. If the supplier purchases or manufactures such tools, materials, parts and samples on our behalf, we acquire ownership and possession upon payment of the agreed price, even if they remain in the supplier's possession (constitutum possesorium). The supplier is obliged to insure the tools, materials, parts and samples owned by us against fire, water damage and theft at his own expense at replacement value; we are entitled to request evidence at any time. The supplier hereby assigns to us all claims for compensation under this insurance and we hereby accept such assignment. The supplier is responsible for the proper servicing and inspection as well as all maintenance and repair work. The supplier discloses the maintenance or repair plan. We specify the maintenance intervals. In the absence of any other agreement between the contractual parties, the costs pertaining thereto are included in the product price agreed. We may request that the tools, materials, parts and samples be returned to us at any time, unless the supplier needs these items to fulfil his contractual obligations towards us.
Section 14 Retention of Title, Parts, Provision of Materials
Insofar as we provide parts or other material to the supplier, we reserve the right of ownership hereto. The supplier is obliged to separately store the retained goods free of charge, to indicate and to handle them as our property. In the event of culpable depreciation in value or loss of the retained goods, the supplier is to provide compensation.
Any use of the parts or materials provided is only permitted in connection with our orders. Any processing or modification by the supplier is carried out on our behalf. In case our retained goods are processed with other items not owned by us, we acquire co-ownership to the new item in an amount proportional to the value of our item (purchase price plus VAT) in relation to the other items processed at the time of processing. Insofar as the parts or materials provided by us are inseparably combined with other items not owned by us, we acquire co-ownership of the new item in an amount proportional to the value of the retained goods (purchase price plus value-added tax) in relation to the other combined items at the time of the combination. If the combining takes place in such a manner that the supplier's item is to be regarded as the main item, it is deemed agreed that the supplier assigns to us proportionate co-ownership. The supplier preserves the sole or joint ownership for us.
Ownership of the performance rendered to us by the supplier passes to us upon complete payment. However, we are entitled to further process or resell the performance rendered as agreed even prior to full payment. Any prolonged or extended retention of title is subject to our express written consent.
Insofar as the security interests to which we are entitled pursuant to Section 14 exceed the purchase price of all our retained goods not yet paid by more than 10%, we are obliged to release such security interests at our discretion upon request of the supplier.
Section 15 Confidentiality, Contractual Penalty
During the term and after termination of the contractual relationship, the supplier agrees to treat and keep confidential all information, including but not limited to documents, records, samples, drawings, calculations, business plans, personal data, problems and solutions as well as other specific know-how (hereinafter collectively referred to as "information"), as well as quantities, technical specifications, conditions, or even the fact that a business relationship has been established, and in particular not to pass them on to third parties or to use them without authorisation for his own business purposes, irrespective of whether the supplier has received the information from us consciously or accidentally. This also applies to all information in the electronic data interchange EDI within the framework of the current contractual relationship. The supplier is also obliged to impose this obligation on his employees and subsuppliers.
This confidentiality obligation is not applicable to information which
1. has already been known to the other contractual party prior to the conclusion of the contractual relationship
2. has been lawfully acquired by third parties
3. is or will become generally known or state of the art
4. has been disclosed by us in writing.
Upon termination of the contractual relationship, the supplier must return all confidential documents and information without being requested to do so or destroy them at our request and provide us with proof thereof. Software and presentation versions provided for personal use must be uninstalled by the supplier immediately and without being requested to do so. This confidentiality obligation remains binding even after completion of the contract. It expires if and to the extent that the production know-how contained in any information and other documents provided for the execution of the contract has become generally known.
In the event of a culpable breach of this confidentiality obligation, the supplier undertakes to pay a reasonable contractual penalty, the amount of which is to be determined by us at our reasonable discretion and which is subject to full judicial review in the event of a dispute. We are entitled to claim an adequate contractual penalty for each case of culpable breach of confidentiality.
The supplier adheres to the rules of data protection, in particular if granted access to our premises or to hardware and software. The supplier ensures that his vicarious agents also comply with these provisions, and particularly commits them to data secrecy before commencing their activities.
Section 16 Export Licences
The supplier is responsible for assuring that the contractual products are suitable for export to the countries agreed upon or known to be suitable for the intended use provided that they are processed or used in an appropriate manner. Nonetheless, in the event of any impediments to delivery arising due to regulatory decisions and/or national regulations, including but not limited to export control requirements as well as embargoes or other sanctions imposed on the supplier's contractual products, the supplier is obliged to assist us in obtaining the necessary export licences as reasonably and quickly as possible. Where the impediment to delivery lasts longer than 6 months, we are entitled to a special right of withdrawal with regard to the performance concerned.
Section 17 Place of Jurisdiction, Applicable Law, Place of Fulfilment
Insofar as the supplier is a merchant, a legal entity under public law or a public-law special fund, our place of business is the sole place of jurisdiction for all disputes arising from the contractual relationship, including any issues arising internationally. However, we are entitled to institute legal proceedings against the supplier at the court of his place of residence.
The laws of the Federal Republic of Germany apply exclusively; the validity of the UN Convention on Contracts for the International Sale of Goods is hereby excluded. Unless otherwise specified in the order, our place of business is the place of fulfilment for delivery and payment.
Section 18 Severability Clause
Should individual provisions of the contract concluded with the supplier including the conditions herein agreed be or become invalid in whole or in part, the validity of the remaining provisions hereto remains unaffected. The same applies in the event of a regulatory gap. Any invalid or unenforceable provision, in whole or in part, must be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.