Edition January 2015
- Area of application
- These General Purchase Terms govern all business relationships with our Suppliers and Contractors (“Suppliers”).
- We will not accept contrary or different General Business Terms issued by the Supplier unless we have explicitly agreed to the application of such terms in writing. Neither silence nor the acceptance of a performance, nor payment for such a performance, shall be construed as acceptance.
- Our Purchase Terms shall also govern all future business relations with Suppliers even if not specifically referred to in each case.
- Contract conclusion
- Our enquiries shall remain non-binding unless we have issued a binding purchase order, either in the form of our own offer or in the form of acceptance of an offer issued by the Supplier.
- Purchase orders can be revoked by us until confirmed in writing by the Supplier.
- If the order confirmation deviates from our purchase order, a contract will only come into force if we have explicitly agreed to the order confirmation in writing. Without such a written consent, neither our payments nor our acceptance of goods and services can be construed as consent.
- The supply contract, together with any amendments, side agreements, declarations regarding its termination, other declarations and communications, must be in writing unless otherwise specified in these Terms. An e-mail with PDF-annex shall suffice to meet the written form requirement. However, delivery calls may also be issued by remote data transmission.
- Retrospective alterations, contract repudiation
- We may demand retrospective design and execution alterations to the supply good where this is reasonable for the Supplier. In the event of such alterations, the effects to delivery deadlines, as well as any cost shortfalls or overruns, must be be amicably and reasonably agreed. However, price increases and delivery deadline extensions will only be accepted, if the alteration is associated with actual and verified extra costs and delivery deadline extensions, and if the Supplier notified us in writing in this regard immediately following our demand for an alteration.
- In addition to the statutory rights of termination or repudiation, we are entitled to repudiate the contract in full or in part, until the goods are dispatched, if so required for the following reasons:
- Industrial dispute;
- Force majeur;
- Natural catastrophe;
- Initiation of insolvency proceedings in respect of the Supplier’s assets, or in respect of the assets of our Client for who the purchase order is intended;
- or if other significant reasons are present, which we could not have predicted and for which we are not responsible, which rule out use of the delivery in the manner intended by us (e.g. cancellation of the contract with our Client).
If we avail of this right of repudiation, the Supplier shall only be entitled (where appropriate, in a pro-rata manner) to the price agreed with the Supplier for the items produced or procured, as far as the Supplier surrenders these items to us. In respect of semi-finished items, we will pay a price appropriate to the value. However, we are only obliged to render matching payment versus delivery of the items in question.
- Supply scope / spare parts / software maintenance
- The Supplier must ensure that all the data and circumstances which are important for the performance of his contractual obligations, and our intended use of his supplies, are known to him in time. The Supplier vouches that his supplies encompass all goods and services required to ensure safe and economical use of the supply goods complying with regulations, he vouches that they are suitable for the intended use, and that they conform to state-of-the-art technology.
- If the goods supplied by the Supplier include software rights or other items, the use of which is only permitted on the basis of corresponding usage rights (licenses), the Supplier will transfer the corresponding usage rights to us without a surcharge. The Supplier is liable for the existence, transferability and enforceability of the usage rights.
- The Supplier has to ensure that he can continue supplying us with spare parts or substitutes in respect of the items supplied, at appropriate terms, for a period of 10 years following termination of the supply relationship.
- If the supply scope includes non-standardised software, the Supplier states his willingness, for a period of five years from delivery of the item supplied, to carry out amendments/improvements to the software as stipulated by us in return for appropriate reimbursement of costs. If the software originates from a Sub-Contractor, the Supplier will bind such Sub-Contractor by contract accordingly.
- Commissioned orders
If the Supplier executes commissioned orders for us, he must check the faultless condition of the material provided by us prior to processing, unless otherwise agreed in writing. In the event of any possible faults, the material may only be processed with our explicit written consent. Commissioned orders are subject to the Purchase Terms in full.
- Prices, payment terms
- The agreed prices are fixed prices.
- Unless otherwise agreed in writing, payment shall be conditional upon receipt of invoice and performance of contract, including delivery of the contractually required documentation.
- Once these payment conditions have been met, payment will be rendered less 3% discount for all invoices / payment requests received by the 15th of the current month up to the end of the month in question, and for all invoices/payment requests received between the 15th and the end of the current month up to the 15th of the following month.
If we do not avail of a discount, payment will be made (1) for all invoices / payment requests received before the 15th of the current month until the end of the following month, (2) for all invoices / payment requests received between the 15th and the end of the current month until the 15th of the following month.
In the event of early deliveries being accepted, the due-date begins, at the earliest, on the agreed delivery date.
- The payment deadline shall be deemed to have been met if we instruct our bank to render payment before the final payment deadline or, in the event of payment by cheque, mail the cheque before the final payment deadline, provided that the Supplier receives the bank transfer or cheque, at the latest, five banking days following expiry of the deadline.
- The Supplier is not entitled to assign any claims against us, or to allow such claims to be collected by a third party. The provisions of § 354a of the German Commercial Code shall remain unaffected hereby.
- Delivery terms
- Unless otherwise specified, deliveries shall be made DAP (Incoterms in the current version) to the location specified by us, including packing and mothballing. Each consignment must be notified to us and to the recipient specified by us on the day of dispatch. Each delivery must be accompanied by a delivery note in duplicate. The delivery note must include our purchase order, article and supplier numbers. In the event of delivery ‘ex-works’ being agreed, we, and the recipient specified by us, must be notified in time of the dimensions and the weight of the consignment. We will cover the transport insurance to the extent that we are obliged to do so pursuant to the agreed delivery clause (Incoterms in the current version).
- The delivery items must be packed properly and in accordance with normal commercial usage. We are entitled to specify the type and manner of packing to the supplier. If we return reusable packaging to the Supplier carriage-paid, we shall be entitled to reimbursement of the value of the packaging.
- The Supplier is only entitled to execute partial deliveries if such deliveries were originally agreed or if we retrospectively agreed to such deliveries. If, in respect of a partial delivery, defects should be apparent which justify the assumption that the agreed future partial deliveries could also be defective, we may refuse acceptance of further partial deliveries and may wholly or partially repudiate the contract if the Supplier neglects to dispel this assumption, using objectively appropriate means, within an appropriate grace period set by us.
- The risk of accidental loss and accidental deterioration of the supply good shall be transferred to us when the object is handed over at the place of performance. If an acceptance procedure has been agreed, or is required, that procedure shall determine the transfer of risk. For the rest, too, the legal provisions of the law governing contracts for work and labour shall apply analogously during the official acceptance procedure.
- The Supplier is not entitled to commission third parties (e.g. sub-contractors) to provide the goods or services owed to us without our prior written consent. If the Supplier is in culpable breach of this provision, we shall be entitled to repudiate the contract. Our right to damage compensation shall remain unaffected hereby.
- If the Supplier has reserved title to the goods delivered, this reservation of title shall, in each case, only apply until the goods have been properly paid for, unless we have acquired title as a result of processing, conjoining or commingling. We will not recognise prolonged or extended reservations of title, or group and current account reservations.
- Delivery date, contractual penalty
- Agreed dates and deadlines are binding. Adherence to the delivery date or deadline shall be determined by receipt of the goods at the receipt or utilisation point specified by us or – if an official inspection procedure has been agreed or is required – by the date of the successful completion of the official inspection procedure.
- If delivery is made earlier than agreed, we reserve the right to return the goods at the Supplier’s expense, or to store the goods at the Supplier’s expense and risk until the agreed delivery date.
- The Supplier must immediately notify us in writing if it becomes apparent that his performance will be delayed, stating the reasons and the likely duration of the delay. The Supplier may only plead that a delay is due to reasons beyond his control if he has met his notification obligation.
- If the Supplier does not execute the performance owed, or if he is in arrears with a delivery, our statutory entitlements shall remain in force without abridgement. If the Supplier is only in partial arrears we shall, under all circumstances, be entitled to exercise our rights of repudiation, and our rights to compensation, in respect of the contract as a whole.
- If the Supplier culpably exceeds the agreed delivery date, he shall pay us a contractual penalty amounting to 0.15% of the gross total order, but not exceeding 5% of the gross total order, for each calendar day of the culpable excess of the agreed delivery date. Our legal entitlements in respect of such delay shall not be affected by the agreement pertaining to a contractual penalty, or the enforcement thereof. Any contractual penalties paid shall be offset against any damage compensation claims. The contractual penalty may be asserted until payment of the goods / services in respect of which delivery is delayed.
- Quality management, outgoing and incoming goods control
- The Supplier must constantly monitor the quality of his goods and services. The Supplier is obliged to observe our Quality Assurance Agreement for Suppliers, as amended. For this purpose, the Supplier will establish and maintain a Quality Assurance system in accordance with DIN ISO 9000 or another standard agreed with us. Modifications to the delivery object shall require our prior consent. In respect of all products supplied to us, the Supplier must document in writing the manner in which, when and through whom, the faultless production of the delivery was assured. These records must be retained for a minimum of 12 years, and must be submitted to us on request. An analogous obligation must be imposed on Sub-Contractors.
- We have the right to inspect the production of delivery items at any time following prior notice. In this regard the Supplier will, in particular, grant us access to the test procedures carried out, including all test records and documentation relating to these products. The exercise of this right does not restrict the Supplier’s responsibility for faulty products.
- The Supplier is obliged to carry out quality control during production, and to implement and carry out an outgoing goods control system, and must accordingly comprehensively check all delivery items to assess their quality.
Therefore, we will only carry out an incoming goods control to check for externally apparent faults, and externally detectable deviations in respect of identity and quantity. We will immediately issue a notice in respect of such defects. We reserve the right to carry out a more extensive incoming goods check. Furthermore, we shall issue notice of defects as soon as they have been ascertained based on the conditions governing orderly business. To that extent, the Supplier waives the right to plead a belated notice of defect. In the event of defects being found, we shall be entitled to return the entire delivery.
- The Supplier warrants that, at the time risk is transferred to us, the delivery displays the agreed quality. The goods/services must conform to state-of-the-art technology, the relevant legal regulations and the regulations and directives issued by authorities, mutual indemnity associations and trade associations. If, in a specific case, it is necessary to deviate from these provisions, the Supplier must obtain our written consent to such deviation. Such consent shall not restrict the Supplier’s liability for defects. If the Supplier has reservations regarding the manner of execution required by us, he must immediately notify us of these reservations in writing.
- The Supplier undertakes, in respect of his goods and services, and in respect of sub-deliveries or ancillary services provided by third parties, to use environmentally-friendly products and processes where economically and technically feasible. The Supplier will ensure that the products and packaging materials supplied are harmless to the environment. The Supplier will bear liability for any damage arising from a culpable breach of the above obligation. The Supplier is obliged to hand over the respective data sheets pertaining to his delivery together with the delivery. The Supplier indemnifies us from any third-party recourse receivables in the event that the Supplier culpably fails to provide us with the safety data sheets or in the event of delays in supplying them. The same applies to any subsequent amendments.
- The Supplier shall be accountable for ensuring that the products, or parts thereof, to be supplied by him fully meet the requirements of Directive 202/95/EC (RoHS) as issued on 27.01.2003, and as subsequently amended, as well as the requirements of national legislation transposing the Directive into the national law of the Member States, and that they are suitable for manufacturing processes conforming to the RoHS. In the event of culpable breaches of the RoHS conformity requirements being found, the Supplier shall explicitly indemnify us from any external liability and responsibility to third parties regardless of what cause in law, and – in the event of a breach – shall bear any losses accruing to us herefrom.
- If the delivery item does not conform to the agreed quality, or if the goods are unsuitable for the contractually premised use, we may opt to have the defect remedied, or to demand delivery of a faultless item, or repudiate the contract as provided for in law, or abate the purchase price, or to demand damage compensation, or to demand reimbursement for unavailing expenditure. If the Supplier has assumed a guarantee for the quality or durability of the delivery item, we may also assert claims deriving from the guarantee. Notwithstanding § 442 Paragraph 1 Clause 2 of the German Commercial Code, we shall also be fully entitled to assert defect claims even if, as a result of gross negligence, we were unaware of the defect at the time of contract conclusion.
- If the Supplier does not meet his obligation to remedy the defect or make a replacement delivery within an appropriate grace period set by us, we may also remedy the defect ourselves and demand that the Supplier reimburse us for the expenditure thus incurred, and we may demand an appropriate advance payment. An analogous ruling shall apply if retrospective improvement by the Supplier is intolerable for us (e.g. due to particular urgency, endangerment of operating safety or the threat of disproportionate damage), as long as we have first informed the Supplier accordingly.
- The Supplier warrants that his delivery does not breach commercial proprietary rights (e.g. patents, utility models, trademarks, business names), copyright or other third-party rights. If claims are filed against us by a third-party on the basis of an alleged legal infringement, the Supplier is obliged to indemnify us from such claims upon our first demand to do so.
- The warranty period is subject to clause XII below.
- Product liability, recall, liability insurance
- If the Supplier bears responsibility for product damage, he is obliged to indemnify us from third-party claims, including the costs of the necessary legal defence, to the extent that the cause of the damage is located in his area of production and organisation. In instances of fault-based liability, however, this shall only apply if the Supplier is at fault. The onus of proof is on the Supplier to the extent that the cause of the damage is located in his area of responsibility.
- In the frame of his indemnification obligation, the Supplier must reimburse us for expenditure incurred as a result of, or in connection with, third-party demands, including any recall action implemented by ourselves. We will – where possible and reasonable – notify the Supplier of the content and scope of recall measures, and provide him with an opportunity to make a statement. Further statutory entitlements shall remain unaffected.
- For the duration of the supply relationship, the Supplier is obliged to take out appropriate insurance to cover the risks deriving from the product liability provisions above. Verification must be provided at our request.
- Limitation of actions
- Unless otherwise specified below, the Contract Parties’ reciprocal claims will become statute-barred in accordance with law.
- § 438 Paragraph 1 No. 3 of the German Civil Code notwithstanding, the limitation of actions relating to defect claims is generally 36 months from delivery. If an official inspection procedure has been agreed, the limitation period shall start upon completion of that procedure.
- The limitation period governing the law of purchases, including the above extensions, shall apply to all contractual defect claims to the extent provided for by law. If we are also entitled to extra-contractual damage compensation claims due to a defect, the usual limitation of actions (§§ 195, 199 of the German Civil Code) shall apply; the special limitation actions governed by the law of purchases shall, however, apply if – in a specific case – their application would result in a longer limitation period.
- The provision under (3) above also applies to all contractual or extra-contractual claims deriving from defects of title. Such claims will also, under no circumstances, become subject to a limitation of actions as long as the third-party can still assert a right against us, especially based on the absence of a limitation of actions. The statutory limitation on actions for real third-party surrender claims (§ 438 Paragraph 1 No. 1 of the German Civil Code) remains unaffected.
- Business secrets
The Supplier is obliged to treat our purchase orders and the associated commercial and technical details as business secrets, to issue corresponding instructions to his staff, and to monitor his staff accordingly.
- Provision of supplies
- Material supplies provided by us shall remain our property, and must – free of charge – be separately stored, designated and administered. Such supplies may only be used for our orders. In the event of deterioration or loss, the Supplier must provide compensation and must, at his expense, take out appropriate insurance to cover such a contingency. This also applies to the calculated provision of order-related material.
- The material will be processed or altered on our behalf. We will acquire direct title to the new or altered item. If this is not possible for legal reasons, we will, at the time the order is awarded, agree with the Supplier that title to the new or altered item shall pass to us at the time of its creation. The Supplier will, free of charge, store the new or altered item on our behalf with the due care required of a prudent businessman.
- We shall retain title to drawings, models, forms, samples, profiles, specification sheets, artwork, gauges, data carriers, other documentation or tools relinquished by us or produced at our expense. Such items may not be passed to third parties or used for any purpose other than order execution. They must be protected from unauthorised access or use.
- This applies analogously to reproductions. Such reproductions may only be made following our prior consent. We shall acquire title to the reproductions upon completion of their production.
- Without prejudice to further rights, we may at any time demand the surrender of the drawings and other items mentioned in the first paragraph, including reproductions thereof. The Supplier does not have any right of retention, regardless of reason. The complete return of such items must be vouched for in writing.
- Limitation of liability
We assume liability for willful intent and gross negligence. We shall only bear liability for ordinary negligence if this involves a breach of significant contract duties which derive from the nature of the contract and where the breach of such duties endangers the achievement of the contract purpose. Even in such cases, damage compensation shall be limited to the predictable damage. For the rest, in the case of ordinary negligence, any damage compensation claims on the part of the Supplier, for whatever reason, are ruled out. The above limitation of liability does not apply in the event of injury to life, limb or health.
- General provisions
- The place of performance for goods and services is the destination location specified by us.
- The contract relationship shall be governed by German law, with the exception of the law governing conflict of laws, and with the exception of UN Convention on Contracts Governing the International Sale of Goods (CISG).
- The legal venue is Magdeburg, without prejudice to a different exclusive legal venue. We are, however, entitled to file suit against the Supplier at another competent court.
- The Supplier consents to us storing and using such of the Supplier’s data as we require in the context of the business relationship.
- The ineffectiveness of one provision, or parts thereof, in these General Purchase Terms shall leave the effectiveness of the remaining Purchase Terms and/or other agreements concluded between the parties unaffected. If, in the event of ineffectiveness, there is no provision in the law subject to the disposition of the parties, the parties undertake to replace the ineffective provision with an effective provision which most closely approximates to the commercial purpose of the ineffective provision.
- Applicable Version
The German version of these General Purchase Terms is definitive and final.