Conditions of purchase
Section 1 General aspects
Any and all purchase orders will only be placed on the basis of our terms and conditions of purchase; we do not recognize terms and conditions of the Supplier which are contrary to or deviate from our terms and conditions of purchase unless we have explicitly agreed to their applicability in writing. Our terms and conditions of purchase also apply if we accept the delivery of the Supplier without reservations in the knowledge of terms and conditions of the Supplier that contradict or deviate from our terms and conditions of purchase.
Our terms and conditions of purchase apply to all future business transactions with the Supplier.
Section 2 Order confirmation
The Supplier must confirm acceptance of the purchase order and specify the price and delivery date within 5 calendar days.
The Supplier must inform us about obvious errors, for example spelling and calculation errors and incompleteness of the purchase order and the order documents so that they can be corrected or completed before acceptance.
Deviations from our orders are only deemed approved if they are confirmed by us in writing.
Section 3 Date of delivery
The date of delivery specified in the purchase order is binding (Section 376 HGB; Handelsgesetzbuch = German Commercial Code). It is always deemed without grace period.
The Supplier is obliged to inform us immediately in writing if any circumstances occur or become known to the Supplier which suggest that the agreed delivery date cannot be complied with.
In the event of default of delivery, we are entitled to the statutory claims. We are in particular entitled to demand damages instead of performance and withdrawal after fruitless expiry of a reasonable grace period. If we claim damages, the Supplier may prove that the Supplier is not responsible for the breach of duty.
The acceptance of a late delivery or service does not include a waiver of claims for compensation.
Without prejudice to our legal and above-stipulated rights, the Supplier must inform us immediately once delays become evident and specify the reasons and the estimated duration of non-compliance with the deadline.
Section 4 Delivery, transfer of risk, retention of title
The delivery will be effected at the risk of the Supplier and basically free of freight and packaging to the address specified in the purchase order. Any breakage and transport damages and damages due to improper packaging must be borne by the Supplier. This does not apply if the Supplier is not responsible for the damage.
We are only obliged to accept the quantity of goods firmly ordered by us. Excess and short deliveries are not allowed. Partial deliveries are not deemed as performance.
If delivery ex works or warehouse is stipulated in individual cases, the Contractor must perform such delivery in the most inexpensive way. Cash on delivery shipments are basically rejected.
The risk always passes upon acceptance of the goods by us. This applies also if we have accepted the shipping costs in individual cases or if the delivery is effected "ex works".
We expressly recognize the simple retention of title of the Supplier. Each extended form of retention of title, however, is not recognized by us.
Section 5 Notices of defect
We are obliged to inspect the goods for any deviations in quality or quantity within a reasonable period; a notice of defect is deemed made in due time within a period of five working days after receipt of the goods or after identification in case of hidden defects.
In case of larger quantities, the inspections of the goods by us are limited to random checks. Defects which are not identified during these examinations are deemed as hidden. Section 377 HGB is modified in this respect.
Section 6 Claims for damages, product liability
We are entitled to statutory claims for damages in full; in any case, we are entitled to claim remedial of damages or the delivery of a new object from the Supplier at our election. The right to damages, in particular damages instead of performance is expressly reserved.
We may remedy the defects ourselves at the expense of the Supplier if the Supplier is in default.
The limitation period is 36 months after the transfer of risk unless the mandatory provisions of Sections 478, 479 BGB [Bürgerliches Gesetzbuch = German Civil Code] interfere.
If the Supplier is responsible for a product damage, the Supplier shall exempt us from third-party claims for damages upon first request if their origin falls within the Supplier's domain and organisation and the Supplier is externally liable itself.
Within the framework of its liability for events of damage in the meaning of the above para, the Supplier is also obliged to reimburse any expenses according to Sections 683, 670 BGB or according to Sections 830, 840, 426 BGB which arise out of or in connection with a recall performed by us. As far as possible and reasonably, we will inform the Supplier about the content and scope of recall measures to be performed and give the Supplier the chance to give a statement. Other legal claims are not considered.
Section 7 Means of production, drawings etc.
Means of production like models, samples, tools, teachings, drawings, software etc. which were provided to the Supplier by us or manufactured by the Supplier according to our specifications may not be sold, pledged or otherwise forwarded to third parties or used on behalf of third parties in any manner without our consent. They must be treated confidential towards third parties. In this respect, the regulations regarding Section 8, para 1 apply in addition.
The means of production must be returned to us upon request. Any rights of retention in the means of production of whatever type are excluded.
In case of culpable contravention, the Supplier is liable towards us for all causal damage.
We may not be charged for tools, matrices etc. delivered to us until we have confirmed that they are correct. The date of approval of the relevant part is deemed as invoice date. If we have paid pro-rata manufacture costs for forms, tools etc., they may not be used for other orders and may not be amended or disposed of either without our written consent.
Section 8 Confidentiality, property rights
The Supplier is obliged to keep all knowledge about the production etc. of which the Supplier gains knowledge in connection with the implementation of the order or a visit at our premises and any and all drawings, purchase orders and business relations as business secret and will not disclose such information towards third parties in any way. Corresponding confidentiality obligations will be imposed on employees and staff members entrusted with the implementation of the order by the Supplier and they will be instructed on Sections 17, 18 UWG [Gesetz gegen den unlauteren Wettbewerb = German Law Against Unfair Competition]. If the Supplier involves subcontractors or other performing agents with our prior consent, the Supplier must impose the same confidentiality obligations on them which apply to the Supplier. The confidentiality obligation is also applicable after execution of the agreement; it expires if and to the extent to which the production knowledge contained in the documents and information provided has become part of the public domain.
The Supplier is liable for ensuring that the delivery and utilization of the objects of delivery do not violate any property rights of third parties. The Supplier also guarantees that the provided materials are free of property rights of third parties, in particular regarding processes for the manufacture and utilization thereof. If the Supplier holds own property rights in the materials delivered, the Supplier will inform us about this in due time. The same applies to existing property rights of third parties. The Supplier undertakes to exempt us from all possible claims of damages of third parties upon first written request. The Supplier's exemption obligation relates to all expenses incurring to us out of or in connection with the claims raised by any third parties.
The limitation period is 36 months after transfer of risk.
Only we are entitled to know how, other findings etc. developed within the framework of the order and all rights therein. The Supplier may not use this know how or other findings for other clients without our prior written consent. The consent in this respect may not be arbitrarily refused. If the work results or parts thereof of individual orders are protectable, only we are entitled to these new industrial property rights.
Our purchase order may not be used for promotional or similar purposes.
Section 9 Invoices, payments
The stipulated prices are fix prices unless otherwise specified in the purchase order. They are free of freight, packaging and fees to the address of the recipient.
Any and all prices stated in the purchase order are exclusive of statutory value added tax even if not explicitly stated.
Invoices must be sent in triplicate to the address specified in our purchase order. They will be paid after 15 days with 3 %, 30 days with 2 % or net within 45 days. The date of receipt of delivery is relevant for the commencement of the term of payment. Our order number and other references must always be stated on invoices.
Each payment will be effected under reserve of our rights due to any defects. We may withhold payments completely or partially until the defects are remedied or other counterclaims under the same business relationship are performed or offset them against counterclaims. A payment does not mean recognition, performance and does not constitute a waiver of claims for defects either; this applies also regarding the receipt of delivery of the goods.
The place of performance for all payments is our company base.
Section 10 Obligations under the minimum wage law
(1) The Contractor undertakes towards us
a) to pay the minimum wage according to Section 20 [MiLoG; Mindestlohngesetz = German Minimum Wage Law] to all employees working in the territory of the Federal Republic of Germany in due time in the meaning of Section 2 MiLoG,
b) record the beginning, end and duration of the daily working time of its staff members until expiry of the 7th calendar date following the work performed and to keep this recordings for at least 2 years after the relevant date for the recordings according to Section 17 MiLoG;
c) submit a written registration in the German language with the competent authority of the customs administration before commencement of each service or works according to Section 16 MiLoG as employer based abroad.
The Supplier undertakes not to have the services owed by the Supplier rendered by a subcontractor without our consent. If the engagement of a subcontractor is intended, the Supplier must inform us about the company and the seat of the subcontractors and oblige the subcontractor to render the owed services itself and to comply with the obligations under para 1, sentence 1 of this regulation. In view of the regulated obligation, the Supplier must select the engaged subcontractors carefully and check their compliance with the obligations under the Minimum Wage Law on its part.
(2) If the Supplier culpably violates the obligations under para 1 of this agreement, the Supplier will be obliged to pay a contractual penalty for each event of violation in an amount determined by us at equitable discretion which can be examined by the competent local or regional court.
(3) If the Supplier culpably violates the obligations under para 1, we may terminate the contractual relationship with the Supplier without notice, without observing a notice period and without a prior warning being required.
(4) Upon first request of us, the Supplier will exempt us from all claims of third parties based on a violation of the Supplier's obligations under the Minimum Wage Law or on a violation of obligations under the Minimum Wage Law of subcontractors engaged by the Supplier. This exemption obligation applies to both liability under civil law and to fines imposed on us due to violations of the Supplier or subcontractors engaged by the Supplier and to costs of legal prosecution and defence in connection herewith if the asserted entitlements and claims are based on an alleged violation of the obligations of the Supplier or a subcontractor engaged by the Supplier under the Minimum Wage Law. The exemption obligation applies expressly also to claims of social insurance carriers or financial authorities.
(5) Upon request by us, the Supplier is obliged to present all payment and working time documents which we require in order to examine compliance with Section 20 MiLoG. The submission obligation can also be complied with by a confirmation of the Supplier's tax consultant conforming that the obligations under Section 20 MiLoG were complied with by his/her client, the Supplier, and by a confirmation of the staff member engaged for the relevant order that he/she has received a remuneration at least in the amount of the minimum wage under Section 20 MiLoG for his/her activity under this order.
Section 11 Offsetting, retention, applicable law, place of jurisdiction
Offsetting with counterclaims or the exercise of a right of retention is only allowed with respect to our claims if the counterclaim is recognized in writing or established in law.
We may offset all claims of whatever type with all claims of the Supplier even in case of different due dates of the claims.
Only the laws of the Federal Republic of Germany apply without its conflict of laws provisions of international private law. The United Nations Convention on the International Sale of Goods (CISG) of 11 April 1980 does not apply.
If the opening of an insolvency proceeding is requested against the assets of the Supplier, we may withdraw from the unfulfilled part of the agreement.
The place of jurisdiction for all litigations arising out of the purchase orders placed with us is the seat of our company. We are, however, at our election, also entitled to sue the Supplier where a place of jurisdiction is founded for the Supplier according to these general provisions.
Section 12 Storage of data
The Supplier is informed that we process personal and company-related data with the assistance of electronic data processing for handling the business relations.
Section 13 Severability clause
Should one of the above-stipulated clauses be completely or partially invalid, this does not affect the validity of the remainder of the terms and conditions of purchase. The parties agree that such an invalid clause will be replaced by a valid clause coming as close as possible to the meaning of the invalid clause.