General Purchasing Conditions.
1. General – Scope of application
1. These "General Terms and Conditions of Purchase" only apply to entrepreneurs as defined by Section 13 of the German Civil Code (BGB). They shall apply as amended at the time of concluding the respective purchase agreement. Modifications to these General Terms and Conditions of Purchase shall be made having due regard to the interests of the Buyer and shall be notified to him in text form. They shall be deemed to have been approved if the Purchase does not object within six weeks in writing or in text form. We shall notify the Buyer of this separately.
2. Our order shall only be made on the basis of these General Terms and Conditions of Purchase, which shall also apply for all future transactions with the vendor even if they are not expressly agreed again. We shall not recognise conflicting or differing General Terms and Conditions of Purchase of the vendor or of a third party even if we have not separately objected to their application in any individual case. Even if we refer back to a text containing the terms and conditions of the vendor or of a third party or mention it, this does not constitute consent to the application of those terms and conditions. Our General Terms and Conditions of Purchase shall apply even if we accept a delivery or service in awareness of conflicting or differing general terms and conditions of the vendor. If we refer to INCOTERMS in the order, these General Terms and Conditions of Purchase shall have priority over the INCOTERMS mentioned by us.
2. Orders – Confirmation of orders
1. Our order constitutes an offer as defined by Section 145 BGB.
2. Every order must be confirmed immediately upon receipt, but within no more than five working days, in writing. The confirmation shall constitute acceptance of the order. Orders not confirmed in due time shall not be binding.
3. Delivery time, partial deliveries, early delivery
1. The delivery time shall be designated by us in the order and shall be binding. The receipt of goods at the point of reception or use (destination) shall govern compliance with the delivery deadline.
2. Partial deliveries are not permitted and shall constitute unfulfilled services until they are complete. Even if partial deliveries are accepted, the vendor shall assume any additional costs incurred by us.
3. Early delivery (delivery prior to the agreed delivery date) is not permitted. We may refuse to accept an early delivery. If we receive an early delivery, we reserve the right to send the delivery back at the cost of the vendor. If we do not send back an early delivery received, the goods shall be stored by us until the delivery date at the cost and risk of the vendor. In the event of an early delivery, we reserve the right only to make payment on the due date agreed in accordance with section 9(1).
4. The vendor must inform us immediately in writing if circumstances occur or become apparent whereby the delivery time cannot be met.
5. We are entitled to lay down an appropriate contractual penalty at our reasonable discretion for every commenced week of delay in the delivery, which shall be reviewed by the competent court in the event of a dispute. The contractual penalty shall be offset against the damages caused by delay to be paid by the vendor. If we accept the delayed service, we may reserve the right to claim the contractual penalty until final payment.
4. Transport risk, freight and packaging
1. The shipment shall be made at the risk of the vendor. The risk of accidental loss and any deterioration of the goods shall only be transferred to us upon receipt by us or our vicarious agents at the destination, even when shipping at our request.
2. Unless agreed otherwise, the vendor shall bear the shipping expenses up to receipt by us at destination.
3. The vendor must insure the goods against transport damage at all times, even when stipulated otherwise in the INCOTERMS agreed.
5. Retention of title, availability of supplies and raw materials
1. Retentions of title by the vendor shall only apply when these relate to our payment obligation for the respective products for which the vendor retains title. Extended retentions of title are not permitted. In any case, we are entitled to use and process the products delivered in the ordinary course of business, and in particular to integrate them into our appliances and to sell the appliances.
2. The vendor may not stipulate a condition on the availability of supplies and raw materials.
6. Replacement of incoming goods inspections with a quality assurance agreement
1. The vendor must carry out quality assurance measures and quality controls with regard to the goods. Upon receipt, we shall only be required to subject the goods to minimum inspections for visible defects, in particular for transport damage. Otherwise, the obligation to inspect imposed by Section 377 of the German Commercial Code (HGB) is excluded. Our obligation to notify defects for defects discovered subsequently remains unaffected. In all cases, defects found may be notified to the vendor within 10 calendar days of finding the defect.
2. We shall charge a processing fee of €50 per defect notification/quality notification for the processing of defect notifications/quality notifications. The vendor is free to prove that we incurred much lower or no expenses.
3. Upon receipt of our defect notification by the vendor, the statutory limitation for warranty claims shall be suspended when the vendor rejects our claims or declares that the defect has been remedied or otherwise refuses to continue negotiations regarding our claims. In the event of a replacement and remedy of a defect, the warranty period for replaced and repaired parts shall start again unless the conduct of the vendor led us to believe that he did not consider himself obliged to take that measure but only provided a replacement or repaired the defect for the sake of good will or similar reasons.
7. Guarantee of durability, warranty and liability
1. The vendor guarantees that his delivery/service shall not have any defects for a period of three years from the transfer of risk. Our legal warranty rights for defects of quality or title shall expire within three years of the transfer of risk.
2. We may assert warranty rights even if we were aware of the defect upon conclusion of the contract or if these remained unknown due to gross negligence.
3. Our acceptance and approval of samples does not constitute a waiver of warranty claims.
4. Before we recognise or fulfil a claim for defects made by our customer (including reimbursement of expenses in accordance with Sections 478(3), 439(2) BGB), we shall inform the vendor and, giving a brief description of the facts, request comments. In the event that the comments are not provided within a reasonable period and if an amicable solution is not reached, the warranty claim we actually conceded shall be regarded as owed to our customer.
5. The vendor shall be obliged to supply the corresponding spare parts at the applicable spare part prices on our request for a period of 10 years from delivery of the goods.
6. The vendor shall only be entitled to offset if his claims have been established in law, are undisputed or are recognised by us. Furthermore, he shall only be authorised to exercise a right of retention if his counterclaims relates to the same contractual relationship.
7. For breaches of duty of any kind, the vendor shall be held liable in accordance with statutory provisions. This shall apply in particular for breaches of confidentiality in accordance with section 12. We shall not recognise a limitation of the vendor's liability.
8. The vendor shall be liable for all claims asserted by third parties due to personal injury or damage to property attributable to a defective product supplied by him, and shall be obliged to indemnify and hold us harmless from any resulting liability. If we are obliged to carry out a product recall from third parties due to a defect in a product supplied by the vendor, the vendor shall bear all costs associated with the recall.
8. Limitation of liability
Claims for damages and reimbursement of expenses, regardless of the legal grounds, are limited in accordance with the following provisions: For wilful intent, and loss of life, bodily injury or damage to the health of a person, we shall be held liable in accordance with statutory provisions. Otherwise, we shall only be held liable for gross negligence or the breach of an essential contractual obligation, whereby liability is limited to the typically foreseeable damages.
9. Prices and payment terms
1. The agreed prices are fixed and exclude supplementary charges of any kind. Costs of packaging, transport and insurance up to the destination and for customs formalities and duties are included in these prices.
2. All prices are exclusive of statutory value added tax.
3. The pricing structure shall not affect the agreement on the place of performance (section 15(2)).
4. If no prices are stated in the order, the vendor's current list prices with the standard commercial discounts or the discounts usually granted to us shall apply.
10. Invoice, payment and right to withhold performance
1. Payment shall be made with a 5% discount 14 days following receipt of the invoice and delivery, with a 3% discount 30 days following receipt of the invoice and delivery, and net 60 days following receipt of the invoice and delivery. The receipt of our transfer or at our bank shall suffice to prove timely receipt of the payments owed by us.
2. The invoice must state the order number. Should this be missing and processing be delayed within the scope of our normal course of business, the payment terms shall be extended by the period of delay in accordance with section 10(1).
3. In the event of defective delivery, we shall be entitled to refuse counter-performance until proper fulfilment. If the counter-performance has already been made, the counter-performance of the vendor's other deliveries shall be refused to an adequate amount until the vendor has properly fulfilled his duties.
4. In the event of delayed payment, we shall be liable for interest on arrears of five percentage points above the base rate. We shall not be liable for any default interest.
11. Force majeure
1. In cases of force majeure (natural catastrophes, war, terrorism, labour dispute at our company or third party companies, and others) or unavoidable events which make it very difficult or impossible to accept the goods or services, we shall be entitled to postpone acceptance of the goods or services by the duration of the impediment plus an appropriate lead time. If it has become permanently impossible to accept, we shall be entitled to withdraw from the contract with regard to the as yet unfulfilled part. If the impediment lasts longer than 3 months, the vendor shall be entitled, following a reasonable grace period, to withdraw from the contract with regard to the as yet unfulfilled part.
2. Delayed delivery from suppliers of the vendor shall in no event constitute force majeure and shall not extend the delivery time for the vendor.
12. Supplier declaration, intellectual property rights
1. Information on the origin of the goods in accordance with Regulation (EEC) No 1908/73 (OJ L 197 of 17.07.73, p. 1-6) must be provided on the vendor's commercial documents.
2. The vendor guarantees that the products supplied by it in the European Union do not breach any third party intellectual property rights. The vendor must indemnify and hold us harmless from all claims made by third parties against us on the grounds of the infringement of intellectual property rights, and reimburse us for all necessary expenses in connection with this assertion. Any further legal claims on the grounds of defects of title remain unaffected.
1. The parties to the contract must treat the content of the contractual relationship and the circumstances concerning the conclusion of the contract as confidential. The vendor may only refer to any business links with us in advertising material if we have provided our consent in writing for that specific case.
2. We reserve ownership rights, industrial property rights and copyrights on all order documents, such as drawings, models, devices, samples and others. They may not be copied or made accessible to third parties without our prior written consent if this is not required for the execution of the order. The same shall apply for any objects manufactured subsequently. Once the order has been executed, the order documents and all copies thereof made for the purposes of executing the order shall be returned. If the order documents must be made accessible to third parties for the execution of the order, the vendor shall bind the latter to the same obligations which it has towards us.
3. The vendor undertakes to maintain the secrecy of all commercial or technical details which become known to him through the business relationship and following the execution of the order as business secrets for as long as these are not in the public domain or enter the public domain without the vendor's involvement. The vendor must impose a corresponding obligation upon its suppliers.
14. Integrity clause
The contractor is prohibited from offering the employees of the client material or non-material advantages thus leading them to give preference to the contractor with regard to this contract (influencing). This also applies for attempts to exert influence. In particular, the contractor undertakes to take all the necessary precautions in his company in order to prevent the exertion of influence from his company/group of companies. In the event of a breach, the client shall have a right to termination with immediate effect or immediate withdrawal with regard to all current contracts.
15. Final provisions
1. For the legal relationships between the vendor and us, the laws of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11.04.1980.
2. The place of performance is the destination stated in the order.
3. The Regional Court I of Munich shall have sole competence for all disputes resulting from and in connection with this contract, unless another jurisdiction is mandatorily specified by law. The place of jurisdiction for claims against the vendor may also, at our option, be the company seat of the vendor. This place of jurisdiction shall also apply for counter-claims, sett-off claims and third-party notices.
4. Should a provision of these General Terms and Conditions of Purchase or a provision in other agreements be or become ineffective, this shall not affect the effectiveness of all other provisions or agreements. The ineffective provision or agreement must be replaced by an effective one which most closely approximates the intended financial objective of the ineffective provisions.
State: 03 December 2013
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