General Terms and Conditions of Purchasing
I. Scope of Application
1. These General Terms and Conditions of Purchasing shall apply to all business relations with our suppliers if the supplier is a company, a legal entity under public law or a special fund under public law in the terms of § 310(1) of the Civil Code. They shall apply in particular to contracts for the purchase of movable goods, irrespective of whether these have been manufactured by the supplier or purchased by the supplier from third parties.
2. Solely our General Terms and Conditions of Purchasing shall apply, i.e. even if we make deliveries without reservation with knowledge of the supplier's terms and conditions or make direct or indirect reference to letters, etc. containing the supplier’s or third parties' general terms and conditions. We shall only recognise conflicting, variant or supplementary terms and conditions of business of the supplier if we expressly approve their validity.
3. Our General Terms and Conditions of Purchasing shall apply in their respective current version as a framework agreement also to future contracts for the purchase of goods with the same supplier without us having to refer to them again in each specific case.
4. Individual agreements made with the supplier in specific cases (including collateral arrangements, supplements and modifications) shall take precedence over these General Terms and Conditions of Purchasing.
II. Conclusion of Contract / Written form
1. An order declared by us shall be deemed to be a legally binding offer to conclude a contract. If the supplier does not declare acceptance of the offer within a period of two (2) weeks from receipt in text form (§ 126b of the Civil Code), we shall be entitled to revoke the offer at any time.
2. Legally relevant declarations made by the supplier to us after conclusion of the contract (e.g. setting of deadlines, payment reminders) must be in writing to be effective.
3. The transmission of an unsigned electronic document, an unsigned e-mail or a fax shall also be sufficient to comply with the written form in the terms of these General Terms and Conditions of Purchasing./p>
III. Rights to Documents / Samples
1. If the supplier provides us with documents - also in electronic form - such as drawings, illustrations, product descriptions or samples, etc., these shall remain the property of the supplier. We shall use documents/samples exclusively for contractual purposes.
2. Unless this is contrary to mandatory law, the supplier shall not make available to third parties or communicate, exploit, reproduce or modify documents/objects made available to it, either as such or according to their content, without our prior written approval, unless we agree to this in writing. Documents/samples are to be used by the supplier exclusively for the contractual purposes.
3. This obligation shall not apply to information which was already known to us or to the Supplier upon receipt in an authorised fashion without an obligation to maintain secrecy or which subsequently becomes known in an authorised fashion without an obligation to maintain secrecy or which - without a breach of contract by one of the parties - is or becomes generally known or for which the supplier has been granted permission in writing to use it for other purposes.
IV. Prices / Terms of Payment
1. The agreed prices shall be fixed prices and shall not include the respectively applicable value added tax but shall include packaging and freight costs.
2. Unless agreed otherwise, we shall be entitled to pay either two (2) weeks after delivery and receipt of the invoice with a two (2) percent cash discount or within thirty (30) days in the net amount after delivery and receipt of the invoice.
3. Any assignment of claims against us shall require our prior approval.
4. The supplier shall only have the right to set off claims insofar as the counterclaims used for this purpose:
(a) is either undisputed or has been declared by non-appealable judgement; or
(b) in the case of a procedural claim, is ready for decision at the time of the last hearing; or
(c) is in a reciprocal relationship (synallagmatic contract) to the main claim.
5. The supplier shall only have a right of retention to the extent that its counterclaim is based on the same contractual relationship.
6. Invoices must comply with the applicable legal requirements. They must also be submitted to the invoice address specified in the order, specifying the order number, ordered item, supplier number, part number, number of items and unit price as well as the quantity per delivery. In the event of failure to comply with these obligations, the invoice may not be processed and shall be deemed not to have been received.
7. Payment periods shall commence from delivery of the goods to the place of receipt, but not before receipt by us of a proper and verifiable invoice.
8. Payments shall be made subject to the accuracy of the invoices and the contractual conformity of the delivery.
V. Delivery / Delivery Date / Partial Deliveries
1. The place of performance for the delivery shall be the address specified by us.
2. As reasonable, we shall be entitled to request that the supplier make changes to the design and execution of the delivered item. The supplier must implement the changes within a reasonable period of time. Reasonable arrangements are to be made by mutual agreement regarding the effects, in particular with regard to additional and reduced costs, as well as delivery dates. If no agreement is reached within a reasonable period of time, we shall decide at our fair discretion.
3. Agreed delivery dates shall be binding. If the supplier realises that it cannot meet a delivery date, the supplier must inform us immediately in text form in order to enable us to make other arrangements.
4. If the supplier is in default with a delivery, we shall be entitled, after the expiry of a reasonable period set by us, to request, at our discretion, delivery and damage compensation for delayed delivery or, in lieu of performance, damage compensation for non-performance and to rescind the contract. The unconditional acceptance of a delayed delivery shall not constitute a waiver of the claims to which we are entitled as a result of the delay.
5. Partial deliveries shall require our written approval.
6. Any type of title retention, in particular an extended or expanded retention of title, shall be excluded unless we have expressly confirmed otherwise in our order with reference to these General Terms and Conditions of Purchasing.
VI. Shipping / Packaging
1. Goods are to be packed so as to avoid transport damage. Packaging materials are to be used only to the extent necessary. It is incumbent on the supplier to take back packaging in accordance with the provisions of law.
2. The supplier shall be liable for the consequences of an incorrect waybill declaration. The dispatch note must be sent to us by the supplier immediately on departure of each individual consignment.
3. The supplier shall take out transport insurance at its own cost to cover its interests. Furthermore, the supplier shall take out liability insurance customary in the industry at its own cost to cover damage caused by it, its staff or third parties commissioned by the supplier as a result of the delivery of the goods. Both insurance policies must be documented to us on request. Further damage compensation claims to which we may be entitled over and above the amount covered by the insurance policies shall not be prejudiced hereby.
VII. Warranty
1. Material defects
1.1 The supplier warrants that the goods to be delivered shall correspond to the state of the art and comply with all relevant provisions of law and regulations and directives of authorities, trade associations and professional associations and - if forming part of the subject of contract - the specifications in the drawings. If deviations are necessary in specific cases, the supplier must obtain our written approval beforehand. Such approval shall not release the supplier from its contractual duties.
The supplier's liability shall also extend to goods supplied and/or manufactured by its suppliers/subcontractors.
1.2 The supplier hereby agrees to use environmentally friendly products and procedures for its deliveries and supplies or ancillary services of third parties as financially and technically feasible.
1.3 As feasible in the ordinary course of business, we shall inspect the goods on receipt in terms of their identity, completeness and for any externally visible damage, in particular transport damage, and shall protest any such damage without delay.
1.4. If delivered goods are defective, the supplier shall remedy the defect without delay at its own cost, including all ancillary costs, including any costs incurred for removal and installation, by remedying the defect or by delivering a defect-free item (subsequent performance). In addition, we shall be entitled to the further statutory rights in the event of material defects.
1.5 If the supplier fails to meet its duty to remedy the defect within a reasonable period set by us, we shall be entitled to remedy the defect ourselves or have it remedied by third parties at the supplier's cost and risk without prejudice to its other liability for defects.
1.6. In urgent cases in which we cannot wait for subsequent performance by the supplier in order to avert acute dangers or avoid serious damage, we shall be entitled, without prejudice to our statutory rights with respect to defects, to carry out the measures necessary for subsequent performance ourselves or to have them carried out by third parties at the cost and risk of the supplier.
1.7 If the supplier has assumed a guarantee for the quality or durability of a delivered item, we shall be entitled to assert the claims arising from the guarantee in addition to the defect rights to which we are entitled.
2. Defects in title
2.1 The supplier warrants that delivered goods or the use of delivered goods shall not infringe any property rights of third parties, in particular patents, utility models, trademarks, copyrights and competition rights, business and trade secrets.
If the use of the delivered goods leads to an infringement of industrial property rights of third parties, the Supplier shall, at its discretion, either procure for us or our customers the right to further use or modify the delivered goods in a manner reasonable for us or our customers so that the infringement of property rights ceases to exist without the originally agreed quality, performance or performance guarantees being impaired. In addition, the supplier shall indemnify us and our customer, as permissible, against all claims of third parties and bear their legal costs. Claims arising from defects in title shall not expire as long as the third party can assert the right against us.
2.2. Unless agreed otherwise, the limitation period for claims for defects shall be 24 (twenty-four) months after acceptance of the deliveries by us or handover by us to the third party designated by us, unless the law provides for a longer limitation period. For wholly or partially new deliveries or replacement deliveries or deliveries of subsequent improvements, the limitation period shall start anew from the time of the new delivery or repair, provided the defect is the same or the consequence of a defective subsequent improvement.
VIII. Product Liability
1. Insofar as the supplier is responsible for damage in accordance with the Product Liability Act, the supplier shall be obliged to indemnify us against any damage compensation claims by third parties on first written demand. This shall also apply if there is joint and several liability between us and the supplier in accordance with the Product Liability Act vis-à-vis the injured third party. In addition, we shall be entitled to reimbursement of all costs and expenses incurred by us in this connection, in particular due to recall actions initiated by the supplier. We shall inform the supplier to a reasonable extent about the type and scope of recall actions.
2. The above paragraph shall apply accordingly insofar as product defects are attributable to deliveries by suppliers or subcontractors of the supplier.
IX. Miscellaneous
1. Cologne shall be the exclusive - also international - place of jurisdiction for all disputes arising from or in connection with the business relation between us and the supplier. However, we shall also be entitled to sue the supplier at its registered office or at the place of performance. Compulsory provisions of law concerning exclusive places of jurisdiction shall not be prejudiced hereby.
2. The contractual relation shall be subject to the law of the Federal Republic of Germany with the exception of conflict of law rules. The applicability of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) is hereby expressly excluded.
3. Should any provisions of these General Terms and Conditions of Purchasing be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. If provisions have not become an integral component of the contract or are invalid, they shall be replaced by valid ones which most closely approximate that desired by the parties in financial terms.
4. We would like to point out that we store personal data exclusively in compliance with the provisions of law and process them in connection with business transactions. The supplier hereby agrees to this.
Version: February 2021