All our orders and framework orders are based solely on the purchasing terms below.
§ 1 Area of applications -exclusions
1. Our purchasing terms apply only to undertakings (§14 BGB) and/or merchants. They also apply to all future transactions with the supplier, regardless of whether such concern framework agreements or single orders.
2. Our purchasing terms apply exclusively, unless amended by the parties in an express agreement in writing. The supplier's conditions which contradict or deviate from our own purchasing terms likewise do not apply even if we execute the contract without reservation in the knowledge of the supplier's conditions which contradict or deviate from our own purchasing terms. Further additional conditions or contractual clauses intended to be deployed by the supplier are expressly rejected, unless we have agreed to such additional conditions in writing.
3. All agreements made between ourselves and the supplier for the purpose of executing this contract shall be recorded in writing in the contract or in a change order.
4. Unless regulated otherwise by these conditions of contract, the terms and definitions of the INCOTERMS 2000 or the INCOTERMS in their current version apply.
§ 2 Conclusion of contract – contractual documents and confidentiality
1. Our suppliers must submit offers in writing and free of charge for us. They are taken in only as applications for contract, exclusively at the terms in our order. Unless agreed to the contrary, the supplier is obliged to accept our order within five work days, otherwise we are no longer bound by our offer of contract.
2. We do not pay remuneration or recompense for visits, preparation of offers, projects, submission of offers etc.. The same applies if a legal transaction fails to materialise after an offer has been submitted to us.
3. If goods are produced to our specifications, their manufacture may not start until we have inspected and released samples.
4. Our orders and delivery call-ups require the written form. They satisfy the requirements of proper form if they refer to the supplier's offer or if a photocopy of the same is enclosed (if applicable, also in electronic form). Orders placed verbally or via the telephone must subsequently be confirmed in writing to be legally valid. The same applies to auxiliary agreements and changes to contract made verbally. Confirmations of orders, delivery notes, invoices and other written correspondence must always cite our order number or project number.
5. We reserve the ownership and copyright to diagrams, drawings, calculations and other documents that we provide. These do not become the property of the supplier. They may not be disclosed to third parties without our express approval in writing. They may be used solely for production on the basis of our order and shall be returned to us without prompting after the order has been completed. They shall be kept secret from third parties. Any copies made shall likewise be handed over. Electronic copies must be deleted and their deletion confirmed without prompting in writing.
6. Confirmations of order and invoices must be sent to us in duplicate by separate post. They may not be enclosed with the goods. The delivery note shall be attached to the outside of the packaging/goods in a prominent place, protected by plastic envelope. Apart from precisely designating the scope of delivery by article, type and quantity, all the aforesaid vouchers must state, in particular, our project number, commission number and our framework order number. Additional costs resulting from a failure to comply with the foregoing regulations are borne by the supplier.
§ 3 Prices – conditions of payment
1. The price quoted in the order is binding. Unless agreed to the contrary in writing, the price includes delivery "carriage paid", including packaging, transport insurance paid, freight and transport to the address or place of use stated by ourselves. We are entitled, although not obliged, to return the packaging.
2. Value-added tax at the prevailing rate is included in the stated price.
3. We do not pay the costs of insuring the goods unless we have expressly demanded their insurance. Otherwise the goods shall be insured by the supplier.
4. If payment in advance has been agreed with the supplier, it must furnish appropriate securities to us at our discretion. Agreements in this context require the written form.
5. If the supplier generally lowers its prices, it is agreed that the prices in our orders are reduced accordingly.
6. We are not able to process invoices unless these state the order number or framework order number, in accordance with the stipulations in our order. The supplier is therefore obliged to quote the order number stated in our order on all invoices conform to the stipulations given therein. The supplier is responsible for all consequences arising due to non-compliance with this obligation.
7. Unless agreed otherwise, payments are made by the 15th of the following month or in 30 days purely net at our discretion.
8. We accrue rights of offsetting and retention as regulated by law.
9. If defects are established upon receipt of the goods or thereafter, we can postpone payment of the invoice sum until they have been rectified. We are furthermore entitled to offset our claims against those of the supplier.
§ 4 Delivery dates
1. The delivery date stated in the order is binding. The decisive factor for observance of the delivery date is the arrival of the goods at the place of receipt or use stated by us. The delivery deadline starts with the order date. We are not obliged to accept goods until the delivery date has expired.
2. The supplier is obliged to notify us without delay in writing if circumstances occur or if it realises that the specified delivery date or the assured qualities and properties cannot be met. It shall thereby state the reasons and the likely duration of the delay. In case of failure to do so or if the notice is submitted late, the supplier is liable for the losses incurred as a result, without prejudice to any further claims.
3. If the supplier cites a date in deviation to that agreed after conclusion of contract, we are entitled to withdraw from the contract without needing to state reasons. The same applies if the supplier fails to meet the promised date. The supplier cannot pursue any claims whatsoever against us due to withdrawal. Any claims accruing to us against the supplier remain unaffected by this.
4. In case of default of delivery, and after a period of grace set by us has expired fruitlessly, we are entitled at our discretion to demand subsequent delivery or recompense for losses instead of performance due to non.provision of a service or failure to provide the service owed, or to retract the order. In addition, we are at liberty to demand flat-rate default damages at 1% of the delivery value for each completed week, although not more than 10%. Further-going legal claims remain reserved. The supplier has the right to demonstrate to us that we have incurred no or considerably lower losses as a result of the default.
5. Acceptance of delayed deliveries or services does not entail a waiver of claims to damages.
§ 5 Packaging -marking
1. A detailed delivery note must accompany every delivery. This must be able to be checked and should state the complete order data. Individual delivery items must be packed in such a way that they cannot be accidentally mixed up.
2. The packaging must be such that the delivery item can withstand the weather, other external influences and damage from impacts. The supplier shall take back and dispose of packaging materials free of charge. The supplier may not charge packaging materials to us unless we have approved this in writing. If we then return such packaging material, the supplier shall credit us with the amount it has charged.
3. We reserve the right to prescribe regulations for the marking and packaging of goods.
§ 6 Transfer of risk -documents
1. Unless agreed otherwise in writing, deliveries are made carriage paid. The risk of any deterioration, including accidental destruction, therefore remains with the supplier until the goods have been delivered to the address stipulated by us. Goods are shipped at the risk of the supplier.
2. Part deliveries made by the supplier do not fulfil performance agreed by contract. They are not remunerated as part transactions. Our claims concerning provision of performance agreed by contract, in particular warranty provisions, remain unaffected.
3. Deliveries are always received under the reservation of checks of quantities, quality, correspondence and with regard to assured properties.
4. If we assist the supplier during the receipt of goods by providing personnel or equipment, we are entitled to invoice this to the supplier at our current prices or to subtract the corresponding amount from the supplier's invoice.
5. The supplier is obliged to accurately quote our order number on all dispatch papers and delivery notes. Delays in processing are unavoidable if it fails to do so, delays for which we assume no responsibility.
6. The documents required for our end records (product descriptions, technical designs, test certificates, lists of spare parts, drawings and operating and maintenance instructions) shall be provided by the supplier at our request in the required quantity and quality. The supplier can demand only minor remuneration if the submission of such documents is associated with a disproportionately great effort on its part.
7. The supplier is liable for the suitability of the packaging (cartons, crates etc.). If a difference is established between the weight invoiced at the weight received, the weight recorded by our calibrated scales or by public balances is binding.
8. In the case of a works supply contract (supply plus assembly), the supplier bears the risk until the works have been accepted by the end customer. If we are unable to fulfil our obligation of acceptance due to events for which we are not responsible, such as Acts of God, industrial disputes, operational breakdowns etc., any claims to damages accruing to the supplier are limited to the so-called negative interest.
§ 7 Warranty -inspection of goods
1. We are obliged to inspect the goods for any non-conformities in quality or quantity within a reasonable period of time. Complaints are regarded as having been lodged on time if they are received by the supplier within 8 work days from complete receipt of the goods. We shall notify outwardly recognisable defects in supplies and services without delay in writing, as soon as these have been discovered in the course of regular operating procedures. In the case of defects in goods, work and deliveries which are not able to be recognised immediately or only upon use of the delivered goods, despite careful inspection, a complaint has been lodged on time if it is received by the supplier within 8 work days from discovery of the defect. If we re-route or forward the goods in normal business transactions and notify this to the supplier in good time, the duty of inspection and complaint is extended accordingly.
2. If it is unreasonable or inexpedient for us to inspect the goods for defects without delay due to rational operational procedures, a complaint of a defect is still regarded as having been lodged on time if it is notified without delay after the defect has been recognised, unless the defect was obvious upon delivery even without a more thorough inspection.
3. The supplier is liable for material defects within the framework of Items 4 and 5 below irrespective of culpability.
4. If the goods have a material defect at the time that risk is transferred, we can demand subsequent fulfilment or a reduction in price. Subsequent fulfilment is made by rectification of the defect or by a replacement delivery at our discretion. The supplier bears the costs incurred.
5. If the supplier fails in its attempt at subsequent fulfilment, if it unjustly refuses subsequent fulfilment or allows a period of grace to pass fruitlessly, we can rectify the defect ourselves or have it rectified and demand recompense for the expenses incurred. Moreover, we are at liberty to reduce the purchase price in accordance with legal provisions. We also accrue the aforesaid rights if defects of considerable significance occur once more after a defect has been subsequently rectified.
6. Legal rights of withdrawal, rights to claim damages, in particular recompense for losses instead of performance, remain reserved.
7. The supplier assures that it fully owns every object delivered under each order and that these are not encumbered by any kind of third party rights (such as liens, other creditor items arising from an assignment of claims or other credit securities, factorisation, hire purchase, conditional sales etc.). The supplier is liable for legal defects irrespective of culpability.
8. Unless regulated to the contrary in writing, the warranty period is 5 years for function and materials, 2 years for electrical and moving parts, 1 year for parts subject to wear and tear, plus 1 month in each case. The warranty period begins upon acceptance of the goods/services, although at the latest 9 months after delivery.
§ 8 Product liability – release -indemnity insurance coverage
1. The supplier is liable to us in accordance with legal provisions. We do not recognise any exclusions or limitations of liability beyond these. If the supplier is responsible for product damages, it is obliged to release us from third party claims to damages at first request, insofar as the cause lies in its sphere of control and organisation and it is itself liable in relation to third parties.
2. If call-back campaigns are necessitated by such product damages, the supplier is also obliged to refund the expenses incurred in this context. Insofar as feasible and reasonable, we shall inform the supplier of the nature and scope of the call-back action and give it the opportunity to make representations.
3. Other claims accruing to us remain unaffected.
4. The supplier is obliged to conclude product indemnity insurance to an adequate amount with a recognised insurance company and to maintain coverage for the duration of the business relationship, including warranty periods. The existence of such insurance cover must be demonstrated to us by presentation of appropriate written confirmation from the insurance company with the latest date. The supplier has no claim to payment of remuneration without presentation of such evidence. If we accrue further-going claims to damages, these remain unaffected.
§ 9 Protected rights
1. The supplier shall ensure that patents or other third party protected rights are not infringed by its delivery or its use by us as can be foreseen by the supplier. 2. If third parties take action against us due to an infringement of such protected rights, the supplier shall release us from these claims at first written request and shall recompense us for all the expenses incurred in the wake of the action (including costs of legal counsel).
2. The foregoing provisions do not apply insofar as the supplier has produced the delivered goods in accordance with documents, samples, models or similar specifications prepared by us, and does not know and is unaware that these infringe protected rights. Even in such cases, however, the supplier is obliged to deploy its technical experience and knowledge of the industry to review the question of infringements of protected rights and to notify any misgivings it may have to us.
3. We are entitled to agree a contractual fine with the supplier for failure to provide a service or for failure to act.
§ 10 Agreement on quality assurance
If the supplier offers its services as a certified producer at the date that the contract is concluded, it is obliged to conclude an agreement of quality assurance with us. The quality standard agreed in this way has priority over these purchasing terms.
1. The supplier's deliveries must conform to the recognised state-of-the-art, safety regulations, environmental regulations and the agreed technical data. Changes to the delivery item require our prior permission in writing.
2. The supplier may not deliver any goods which were produced longer than 3 months before the date of delivery. The supplier extends a warranty of 36 months from handover of any goods without a date of manufacture.
3. The periods of limitation by time regulated by law first start to run upon expiry of the agreed warranty period.
§ 11 Reservation of title – furnishment by the buyer – tools -secrecy
1. If we furnish parts to the supplier, we reserve the title to these. They are processed by the supplier on our behalf. If our reserved goods are processed with other objects not belonging to us, we acquire co-ownership to the new item in the ratio of the value of our item to the other processed objects at the time of processing.
2. If the item furnished by us is inseparably mixed with other objects not belonging to us, we acquire co.ownership to the new item in the ratio of the value of the reserved item to the other mixed objects at the time of mixing. If the goods are mixed in such a manner that the supplier's item is to be regarded as the main object, it is agreed that the supplier transfers proportionate co-ownership to us. The supplier shall safeguard the sole ownership or co-ownership on our behalf.
3. We reserve the title to all tools. The supplier is obliged to deploy tools solely to manufacture the goods ordered by us. The supplier is obliged to insure the tools belonging to us to their as-new value, at its own expense, against fire and water damage and against theft. It is obliged to undertake any maintenance and inspection work required in good time at its own expense. It must notify us immediately of any problems. If it culpably fails to do so, claims to damages remain unaffected. On request, the supplier shall demonstrate the existence of the aforesaid insurance coverage to us.
4. The supplier is obliged to treat all diagrams, drawings, calculations and other documents and information contained therein in strict confidence. All diagrams, drawings, calculations and other documents furnished by us remain our property. At the same time we expressly reserve the copyrights to such. They may not be disclosed to third parties unless we have given our express approval. The obligation of confidentiality continues to apply even after the contract has ended. It expires if and insofar as the manufacturing knowledge contained in the diagrams, drawings, calculations and other documents furnished has become generally known.
5. The goods to be delivered are assigned unconditionally and irrespective of payment of the appropriate remuneration. All forms of an extended or augmented reservation of title are excluded in every case, so that any effective reservation of title declared by the supplier applies only until the goods delivered to us have been paid for.
§ 12 Concluding provisions
1. This written form regulated in these terms is also satisfied by fax and/or e-Mail notices.
2. Should individual provisions in the contract, including these purchasing terms, be or become unworkable in part or in full, this shall not affect the validity of the remaining provisions. The parties are obliged to replace the regulation in question with a legally workable provision that comes closest to the intended outcome.
3. If the supplier is a merchant in the sense of the German Commercial Code, a legal entity under public law or a public law special trust, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the court responsible for the district in which our registered office is located. However, we are also entitled to take action against the supplier at its place of business or branch office.
4. Unless regulated otherwise in the confirmation of order, our registered office in Werl is also the place of fulfilment for our obligations of payment.
5. The supplier's rights under this contract may not be transferred.
6. German law shall prevail to the exclusion of UN commercial law.
7. In case of doubt, the INCOTERMS 2000 or the current version of the INCOTERMS are decisive for the interpretation of commercial clauses.