§ 1 Scope of Application
- All deliveries, services and quotations that our suppliers provide to us are subject exclusively to these General Purchasing Terms & Conditions. They are an integral part of all contracts entered into with our suppliers in respect of deliveries and/or services, for which quotations have been provided. They also apply to future deliveries and services or quotations provided to us, even if the terms have not been separately re-agreed. Otherwise they only apply if the supplier is an entrepreneur (as per § 14 BGB [German Civil Code]), a legal entity or special agency subject to public law.
- The business terms of our suppliers or third parties do not apply, even if we do not expressly object to their application in specific cases. Even if we refer to correspondence, which contains or refers to the business terms of a supplier or a third party, this does not signify agreement with the application of those terms.
§ 2 Purchase Orders, Delivery Lead Times, Commissions, Amendments, Transfer of Risk
- Submitting purchase orders in writing means that we accept quotations addressed to us by the supplier. If the supplier does not provide a written acknowledgement within two weeks of receipt of our purchase order, our purchase order shall lapse. A contract to supply therefore does not materialise.
- If no relevant objection has been raised within two weeks following a particular call-off date, call-offs and delivery deadlines are then deemed to be binding.
- The supplier is obliged to notify us in writing without delay if any circumstances, in which the specifically agreed delivery deadline can’t be met, arise or are anticipated to arise.
- If the delivery deadline is contractually stipulated, the supplier is automatically in default once this deadline has expired and we are not required to send out a reminder. The supplier is responsible for any acts of negligence occurring during delivery. The supplier bears sole procurement risk, unless different arrangements have otherwise been made.
- In the event of delayed delivery, we are fully entitled to assert other statutory rights, including the right to withdraw from the contract and to claim for damages in lieu of performance in the event of non-performance within a reasonable grace period.
- In the event of delivery delays, we are furthermore entitled to demand payment of a contractual penalty in the amount of 0.5 up to a maximum of 5% of the relevant order value upon prior written warning to the supplier for each week or part thereof in which delivery is delayed. This contractual penalty shall be added to compensation to be paid by the supplier for any losses caused by the delay.
- The supplier is not entitled to make partial deliveries without our prior written approval.
- Risk is not transferred to us –even if shipping has been agreed—until we have taken receipt of the goods at the agreed destination.
- Only those drawings attached to or applying to the specific purchase order may be used to manufacture the commissioned components. All other drawings should be marked as void or destroyed.
§ 3 Costs of Packaging, Freight, Transportation, Customs Duties and Other Ancillary Shipping Costs
- The supplier shall at his own risk undertake free-domicile shipping to any address we specify.
- Costs for packaging, freight, transportation, customs duties and other costs and charges shall not be reimbursed separately but shall be included in agreed prices, except as otherwise agreed. The supplier shall assume sole responsibility for ensuring that shipping documents and declarations are issued with due care and attention, stating our purchase order number.
§ 4 Prices, Payment Terms, Invoicing Details
- The price(s) stated in our purchase order are binding.
- If in the case of a specific agreement the price does not include packaging and other ancillary shipping costs and reimbursement for packaging has not been specified, we are to be billed at verifiable cost price. The supplier must take back any packaging at his own expense if we request him to do so.
- Unless specifically agreed otherwise, we pay purchase prices strictly net within 60 calendar days of delivery and receipt of a proper invoice at our premises. For payment within 10 calendar days we are entitled to deduct a 3% cash discount and for payment within 30 calendar days to deduct a 2 % cash discount. Receipt of our remittance order by our bankers is sufficient to verify on-time payment of any amounts we owe.
- Where notified to the supplier, our purchase order numbers, item numbers, delivery quantities and delivery addresses must be stated on all order acknowledgements, shipping documents and invoices. If any or all of these details are missing and if invoice processing during the course of our normal business operations is therefore delayed, the payment deadlines stated in Paragraph 3 above shall be extended by the period of the delay.
- Should we be late in paying an invoice, we shall be liable to pay late payment interest in the amount of 5 percentage points above the valid base rate as per § 247 BGB (German Civil Code).
§ 5 Security of Ownership
- We reserve ownership rights and/or copyright to all purchase orders and commissions submitted by us and to all drawings, images, calculations, descriptions and other documents made available to the supplier. The supplier may not utilise this information in any way whatsoever for his own purposes or for those of third parties without our express written consent. The supplier must return our property in full upon our request, if it is no longer required during the proper course of business. Any copies made by the supplier must be destroyed, excepting those documents that are subject to a statutory duty of maintaining records or remain in his possession as part of standard data storage and protection procedures.
- Tools, jigs, materials (such as software, finished and semi-finished products) and models, which we make available to the supplier as the case may be or which have been produced for contract performance purposes or billed to us separately by the supplier, shall remain our property or shall pass into our ownership. They must be clearly marked as our property by the supplier, carefully stored, protected against damage and used solely for contract performance purposes. The costs of maintenance and repair shall be shared equally by the contracting parties – unless agreed otherwise. If such costs can be attributed to defects or faults for which the supplier is responsible, the supplier shall bear these costs. The supplier is obliged to return these items in a proper condition if they are no longer required to enable the supplier to meet his contractual obligations towards us.
- Ownership of the goods must be transferred to us unconditionally and irrespective of payment of the purchase price. However if in specific cases we accept an offer of ownership transfer made by the seller/supplier that depends on payment of the purchase price, retention of title by the supplier lapses no later than payment of the purchase price for the goods delivered. We remain entitled in the proper course of business operations to resell the goods even before payment of the purchase price, under advance assignment of the resulting amounts receivable. Therefore this excludes all other forms of title retention, in particular augmented, assigned and extended-to-processing retention of title.
§ 6 Warranty Claims
- We are fully entitled to assert our statutory claims. This notwithstanding, the warranty period is however 36 months, alternatively 24 months.
- We check all deliveries for any quality and quantity discrepancies. We deem such notice of defects as having been submitted on time, if we notify the supplier within 10 working days of receipt of goods at our premises. Concealed material defects are in any event reported on time if the supplier is notified within 5 working days after discovery of the defect(s).
- The supplier consents at this juncture to agree other issues with us in the form of a quality assurance agreement to be concluded at a later stage.
- By accepting or approving samples or prototypes submitted by the supplier, we are not waiving warranty claims.
- Upon receipt of our written notice of defects by the supplier, the statute of warranty claim limitations is suspended until the supplier rejects our claims, declares the problem to have been solved or declines to continue discussions relating to our claims. Where replacement goods are delivered or defects are rectified, the warranty period for replaced and mended parts commences anew, unless the conduct of the supplier has caused us to assume that he did not feel obliged to take action, but nevertheless replaced the part(s) in question or rectified the defect as a gesture of goodwill.
§ 7 Supplier Recourse
- We are fully entitled to make use of our statutory right of recourse within a supply chain (Supplier Recourse, §§ 478, 479 BGB [German Civil Code]) in addition to claiming for defects. In particular we are entitled to demand that type of subsequent performance from our supplier that we are obliged to provide in specific cases to our customers. This does not restrict our statutory right of choice (§ 439 Par. 1 BGB [German Civil Code]).
- Before we accept or meet any claim for defects –including reimbursement of expenses-- made by one of our customers, we shall notify the supplier, providing a brief description of the circumstances of the case and request a written response. If this written response is not provided within a reasonable period and if no amicable solution results, our customer shall be deemed to be entitled to the warranty rights actually afforded by us. In such cases the supplier has a duty to provide evidence to the contrary.
- Our supplier recourse claims also apply if the goods have been processed by us or by one of our customers prior to sale to a consumer, e.g. by being incorporated into another product.
§ 8 Product Liability
- The supplier is liable for all claims made by third parties in respect of personal injury or damage to property that can be attributed to a defective product that he has delivered and is therefore obliged to indemnify us from any resultant liability. If we are obliged to recall products from our customers on account of a defect in a product delivered by the supplier, the supplier shall bear all costs associated with that product recall.
- The supplier is obliged to take out at least € 2.5 million in product liability insurance cover at his own expense, which is not required to cover recall risk, criminal prosecution or similar losses –unless agreed otherwise in specific cases. The supplier shall send us a copy of the liability insurance policy any time we request him to do so.
§ 9 Intellectual Property Rights
- In accordance with Par. 2 below, the supplier undertakes to ensure that the intellectual property rights of third parties in member states of the European Union or in other countries, in which he manufactures the products or has them manufactured, are not infringed by any product supplied by him.
- The supplier is obliged to indemnify us against any claims made against us by third parties in relation to the infringement of industrial property rights mentioned in Par. 1 above and to reimburse any expenditure incurred in connection with such claims. Such claims are not valid if the supplier can prove that he is not responsible for the infringement of intellectual property rights or can disprove that he should have been aware of such an infringement at the time of delivery if exercising commercial prudence.
- Our other statutory rights in relation to defect of title to the products delivered to us remain unaffected.
§ 10 Confidentiality
- The supplier is obliged to keep the terms of the purchase order as well as all information and documents (with the exception of publically accessible information) provided to enable the supplier to fulfil the order confidential for a period of 3 years after contract conclusion and to use this information solely for the purposes of fulfilling the order. Such information must be returned to us immediately upon request, once any enquiries have been responded to or purchase orders have been processed.
- The supplier may not refer to our business relationship in advertising materials, brochures or electronic media and showcase products manufactured for us without our prior written consent.
- The supplier undertakes to oblige his subcontractors to maintain this same level of confidentiality.
§ 11 Assignment
- The supplier is not entitled to assign any receivables derived from the contractual relationship to third parties. § 354a HGB (German Commercial Code) remains unaffected.
§ 12 Place of Performance, Place of Jurisdiction, Applicable Law
- The place of performance and exclusive place of jurisdiction for any disputes arising from this contractual relationship is Krefeld, Federal Republic of Germany.
- The contracts concluded between us and the supplier are subject to the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and any laws referring to the CISG, which conflict with German law. The prerequisites for and the effects of retention of title shall be governed by the law in force at the place where the goods are stored if, under that law, the choice of German law would be inadmissible or invalid.
§ 13 General Terms
- All agreements pertaining to our business relationship with the supplier must be in writing. This also applies to subsidiary agreements, amendments to existing agreements and to the reversal of the in-writing requirement.
- Should any of the above-mentioned terms --or parts thereof—be or become void, this does not affect the validity of the remaining terms and of the existing contract between the two parties. The contracting parties are obliged to replace the void term --or part thereof—with a term that comes closest to serving the intended commercial purpose of both parties.