1. These General Purchasing Terms and Conditions apply to all business relationships with our business partners and suppliers (hereinafter, “Sellers”). They apply only if the Seller is an entrepreneur (Unternehmer) within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), a legal person under public law (juristische Person des öffentlichen Rechts), or a special fund under public law (öffentlich-rechtliches Sondervermögen)..
2. Our General Purchasing Terms and Conditions apply in particular to contracts for the sale and/or supply of moveable goods (hereinafter, also “goods”), irrespective of whether the Seller manufactures the Product itself or acquires same from subcontractors (Sections 433, 651 BGB). Our General Purchasing Terms and Conditions, in the version currently in effect, apply as a framework agreement that also covers future contracts entered into with the same Seller for the sale and supply of moveable goods, obviating the need for us to make reference to them in each individual instance.
3. Our General Purchasing Terms and Conditions apply exclusively. General terms and conditions of the Seller that deviate from, stand in opposition to, or supplement our General Purchasing Terms and Conditions may be made part of the contract with the Seller only and insofar as we have given our express written consent to their applicability. This requirement of consent applies in every instance, including in particular where, despite our awareness of the Seller’s general terms and conditions, we accept deliveries from it without reservation.
4. Individual arrangements made with the Seller in specific cases (including side agreements, additions, and amendments) always have priority over these General Purchasing Terms and Conditions. The content of such arrangements is subject to a written contract or our written confirmation.
5. Legally relevant declarations and notices that the Seller is required to make or provide to us following conclusion of contract (e.g. setting of deadlines, payment default notices, declaration of rescission) must be given in writing in order to be effective.
6. If reference is made to the applicability of statutory provisions, this has merely a clarifying significance. For this reason, even absent such clarification, statutory provisions are applicable unless modified or expressly precluded by these General Purchasing Terms and Conditions.
1. Our order cannot be considered valid until it has been given or confirmed in writing.
2. The Seller is required to confirm our order in writing within one business day (in these General Purchasing Terms and Conditions, a business day is considered to be Monday through Friday) or to execute it, in particular, through dispatch of the goods (acceptance). Failure to give timely acceptance constitutes a new offer and requires new acceptance by us.
1. The delivery time stipulated by us is binding. If the delivery time was not stipulated in the order, it is considered to be three business days following conclusion of contract, unless agreed to otherwise. The Seller is obligated to give us prompt written notice if, for whatever reason, it anticipates that it will be unable to comply with agreed delivery times.
2. If the Seller fails to perform, fails to perform by the agreed delivery time, or is in default, then our rights – in particular, to rescission and damages – are determined in accordance with statutory provisions. The provisions in para. 3 remain unaffected.
3. If the Seller is in default, we are entitled to demand, in addition to more extensive legal claims, pro-rated payment of our default damages in the amount of 1% of the net price per full calendar week, but not more than 10% of the net price of the goods that have not been delivered on time. We remain entitled to prove that we suffered greater damages. The Seller remains entitled to prove that we suffered no damages whatsoever or only materially insignificant damages.
1. Absent our prior written consent, the Seller is not entitled to have third parties undertake the contractual performance owed by it (e.g. by subcontractors). The Seller bears the procurement risk for its contractual performance, unless a one-off production is involved.
2. Delivery is to take place within Germany, freight prepaid, to the location stipulated in the order. If the location of delivery has not been stipulated and no other agreement has been reached, then delivery is to be made to our place of business at Zeppelinstr. 8, in 73105 Dürnau. For the purposes of debt collection, the respective place of delivery is also the place of performance.
3. The risk of loss and deterioration of the goods passes to us upon transfer at the place of performance. If an acceptance inspection has been agreed upon, this is controlling with respect to transfer of risk. The provisions of the law on goods delivered in exchange for payment (Werkvertragsrecht) also apply correspondingly to an acceptance inspection. It is equivalent to transfer or acceptance if we are in default in acceptance.
4. Statutory provisions govern when we are deemed to be in default in acceptance. The Seller must, however, expressly offer to give us contractual performance even when a specific or specifiable calendar date has been agreed to for action or cooperation on our part (e.g. provision of materials). If we are in default in acceptance, the Seller may demand compensation for its added expenses in accordance with statutory provisions (Section 304 BGB). If the contract relates to individualised goods to be manufactured (one-off production), the Seller is entitled to more extensive rights only if we agreed to an obligation of cooperation and the failure of such cooperation is our responsibility.
1. The price stipulated in the order is binding. All prices include value-added tax, unless this is listed separately.
2. Unless a different arrangement was agreed upon in a particular case, the price includes all services and related efforts by the Seller, as well as all ancillary costs (e.g. proper packaging, transportation costs, including possible transportation and liability insurance). The Seller must take back all packaging materials when we so require.
3. The agreed price is payable not later than 30 calendar days following complete delivery and contractual performance (including any agreed acceptance inspection) and receipt by us of a proper invoice, unless agreed otherwise. If we make payment within 14 calendar days, the Seller must grant us a 3% discount for early payment based on the net amount of the invoice.
4. We are not liable for late interest. The Seller’s claim to payment of default interest remains unaffected. Statutory provisions govern when we are deemed to be in default. In any case, however, the Seller must give notice of default.
5. We are entitled to rights of set off and retention, as well as the defence of non-performance of the contract, to the extent provided by law. We are, in particular, entitled to retain payments due in cases where we have claims against the Seller for incomplete or defective performance of services.
6. The Seller has a right of set off or retention only for legally adjudicated or uncontested counterclaims.
1. We reserve our rights of ownership and copyrights in and to images, plans, drawings, calculations, performance instructions, product descriptions, and other documents. Such documents are to be used solely for contractual performance and returned to us after fulfilment of the contract. The documents may not be disclosed to third parties, including following expiry of the contract. The duty of confidentiality expires only after the knowledge contained in the transferred documents has become known to the general public.
2. The foregoing provision applies mutatis mutandis to materials (e.g. software, finished products, semi-finished products), as well as to tools, templates, models and other objects that we provide to the Seller for the purposes of manufacturing. To the extent they are not processed, such objects must be held in separate safekeeping at the expense of the Seller and insured to the customary extent against destruction and loss.
3. Transfer of the goods to us takes place unconditionally and without regard to payment of the price. In particular, all forms of expanded or extended retention of title are precluded, such that any retention of title that the Seller may have declared is applicable only to, and until payment of the goods delivered to us
1. Unless agreed otherwise, statutory provisions are applicable to our rights for material and legal defects in the goods (including incorrect or partial delivery, as well as improper assembly and defective instructions regarding assembly, operation or use) and to other breaches of duty by the Seller.
2. The Seller is liable under statutory provisions, in particular, for the goods having the agreed quality upon transfer of risk to us. In particular, such product descriptions that form part of the respective contract – in particular, through their being designated or referred to in our order – or are included in the contract in the same manner as these General Purchasing Terms and Conditions are considered to constitute agreement as to quality. In this regard, it makes no difference whether the product description was made by us, by the Seller or by the manufacturer.
3. In deviation from Section 442, para. 1, second sentence BGB, we are also entitled without limitation to claims for defects even where the fact that the defect remained unknown to us at the time of conclusion of contract was due to gross negligence.
4. With regard to the duty to inspect and object, the statutory provisions (Sections 377 and 381 of the German Commercial Code [Handelsgesetzbuch]) apply with the following stipulation: Our duty to inspect is limited to defects that are evident during external assessment as part of our incoming goods inspection, including bills of delivery, as well as during random-sample quality control (e.g. transport damages, incorrect or partial delivery). If an acceptance inspection has been agreed upon, there is no duty to investigate. Furthermore, the duty depends on the extent to which an investigation is feasible in the ordinary course of business given the circumstances of the individual case. Our duty to object to defects discovered at a later date remains unaffected. In any event, our objection (notice of defects) is considered to be prompt and timely if it was received by the Seller within five business days.
5. The Seller bears the costs incurred with testing and repair, even if it turns out to be the case that there was in fact no defect. Our liability for damages due to an unjustified demand for elimination of defects remains unaffected. However, we are liable only if we recognised that no defect existed or if we were grossly negligent in failing to so recognise.
6. If the Seller fails to comply with its obligation to cure – at our discretion, by eliminating the defect (repair) or by delivery of defect-free goods (replacement delivery) – by a reasonable deadline set by us, then we may eliminate the defect ourselves and demand compensation from the Seller for the necessary expenses of this or for a corresponding advance payment. If repair by the Seller failed , or if it is unreasonable to accept it (e.g. due to special urgency, risk to operational safety, or threat of unreasonable damage), a deadline need not be set; the Seller is to be informed of same without delay, where possible, in advance.
7. In addition, in the event of material or legal defects, we are entitled under statutory provisions to reduce the purchase price or rescind the contract. Furthermore, we are entitled under statutory provisions to claim damages and expenses.
1. In addition to claims for defects, we are entitled without limitation to our statutory claims to recourse within a supplier chain (recourse to suppliers pursuant to Sections 478-479 BGB). In particular, we are entitled to demand from the Seller the exact type of cure (repair or replacement delivery) that we owe to our customer in a given instance. Our statutory right of choice (Section 439, para. 1 BGB) is not limited by the foregoing.
2. Prior to recognising or satisfying a claim for defects asserted by one of our customers (including compensation for expenses pursuant to Sections 478, para. 3, and 439, para. 2 BGB), we will so inform the Seller and, after briefly explaining the matter, request a written statement. If a statement is not given by a reasonable deadline, and if a mutual solution is not reached, then the claim for defects actually conceded by us is deemed owed to our customer; in this case, the Seller is obligated to prove the contrary.
3. Our claims under recourse to suppliers are also applicable when the goods were subject to further processing, e.g. through inclusion in another product, prior to their being sold by us or one of our customers to a consumer.
1. If the Seller is responsible for product injuries, it must indemnify us against claims by third parties to the extent that the cause is rooted in its area of control and organisation and it itself is liable to third parties.
2. In connection with its indemnification obligation, the Seller must, pursuant to Sections 683 and 670 BGB, reimburse expenses that result from or in relation to our making use of a third party, including for recall actions undertaken by us. To the extent possible and reasonable, we will inform the Seller as to the content and scope of recall measures and give it an opportunity to make a statement. More extensive statutory claims remain unaffected.
1. Unless a different arrangement is agreed upon in the following, the parties’ respective claims are prescribed in accordance with statutory provisions.
2. In deviation from Section 438, para. 1, no. 3 BGB, the general prescription period for claims for defects is three years, beginning with transfer of risk. If an acceptance inspection has been agreed upon, the prescription period begins to run upon acceptance. The three-year prescription period applies correspondingly to legal defects, whereby the statutory prescription period for a third party’s in rem claims to return (Section 438, para. 1, no. 1 BGB) remain unaffected; furthermore, claims for legal defects are in no event prescribed as long as the third party may continue to assert the right against us, particularly when not prescribed.
3. The prescription periods under the law of the sale of goods, including the aforementioned extension, apply to all contractual claims for defects to the extent provided by law. Insofar as we are also entitled to extra-contractual claims for damages due to a defect, the normal statutory prescription period (Sections 195 and 199 BGB) are applicable here, unless application of the prescription periods under the law of the sale of goods leads in an individual case to a longer prescription period.
1. The law of the Federal Republic of Germany applies to these General Purchasing Terms and Conditions and to all legal relationships between us and the Seller. The prerequisites for and effects of retention of title are subject to the law of the place where the goods are stored when, according to such law, the choice of German law is impermissible or ineffective.
2. If the Seller is a merchant within the meaning of the Commercial Code, a legal person under public law, or a special fund under public law, the sole place of jurisdiction – including internationally – for all disputes arising out of the contractual relationship is our place of business in 73271 Holzmaden. However, we are also entitled to initiate legal proceedings at the place of performance for the delivery obligation or at the place of business of the Seller/supplier.
