General conditions of purchase (Germany)
1.1 Our conditions of purchase are only applicable for business users.
1.2 The following conditions of purchase are the subject of the contract agreed between us, as the buyer, and the supplier. Unless a contrary arrangement has been made in writing, these conditions form the exclusive basis for all agreements and offers. Contradictory contractual provisions and alternative terms from the supplier are explicitly not accepted and do not form part of the contract unless we have explicitly accepted them in writing.
1.3 Ancillary agreements are only effective if they have been confirmed in writing. The contract continues to be binding even if specific items in the provisions are invalid.
2. Consulting fees and quotations
We will not be charged a fee for quotations, visits, consultancy or development of plans.
Orders and agreements are only binding if they have been issued or confirmed in writing by our procurement department. We can correct typing errors, miscalculations and other obvious inaccuracies in orders and other statements at any time, even once the transaction has been concluded, without any obligation arising on our part.
Order confirmation must be made in writing and all order details repeated, especially the complete order number. In the absence of a written order confirmation, we will consider the order to have been accepted.
In the absence of a response on our part to an order confirmation that deviates from our order, under no circumstances can this be regarded as an approval.
4. Implementation and quality
Implementation and quality must be in accordance with the relevant specifications. If the overall production for an order depends on the evaluation of a proof sample, production must only take place once a written instruction from us has been issued. For mass-produced items and custom-made products, deliveries may be short or have a surplus of up to 10%.
The agreed prices are fixed prices for the scope of the order and for the period specified by us in the order. We must be allowed discounts up until delivery of the goods, including if the order confirmation deviates from the order.
If the order includes a unit price, this also applies for partial deliveries insofar as we have agreed to such an arrangement.
6. Delivery and performance deadlines
The delivery and performance deadlines agreed with us are generally defined in terms of calendar dates, as set out in Section 286 para. 2 no. 1 BGB [Bürgerliches Gesetzbuch: German Civil Code], whereby the crucial date is that on which the goods arrive rather than when they are dispatched. If the supplier fails to adhere to these deadlines, they are deemed to be in default without any reminder being issued, as set out in Section 286 para. 2 BGB. In this case, we are entitled to set a reasonable grace period for delivery. If the delivery is not made within this grace period, at our discretion, we are entitled
a) to demand subsequent delivery or performance plus compensation for the late delivery or performance, or
b) to demand compensation for the failure to fulfil the contractual obligations instead of the order fulfilment, or
c) to withdraw from the contract.
d) In the case of b) or c), irrespective of any possible claims for additional damages, we are entitled to demand 15 % of the purchase price as compensation. In this case, it is not necessary to provide evidence of the damage caused unless the supplier can demonstrate significantly lower damages.
The penalty for delay is not deemed to have been waived if we accept the late deliveries without reservation.
The supplier must issue immediate written notification of any identified delays to delivery or performance, including details of the predicted duration of the delay. Other statutory entitlements remain unaffected by this provision, especially those arising from Section 376 HGB [Handelsgesetzbuch: German Commercial Code]. The entitlements listed above under items a) to d) still apply if we do not receive the goods on time due to the goods being damaged or rendered unusable during transportation as a consequence of inadequate packaging. The supplier bears the risk for the consignment until delivery is made to our plant or to a different reception point designated by us. Partial deliveries may only be made if we give special approval for this.
7. Packaging, shipping, insurance
The agreed prices are stated free of shipping charges to our plant or to a different destination designated by us unless explicitly agreed otherwise in writing. The supplier is responsible for the cost of packaging and shipment until the consignment arrives with us unless explicitly agreed otherwise in writing.
a) Packaging: If we are covering the packaging costs and there has been no agreement for delivery to be free of packaging costs, the supplier must select the most affordable type of packaging for us. We reserve the right to reduce the invoice sum in the event of excessive packaging costs. At our discretion, we may send packaging material back to the supplier at their cost and risk and reduce the calculated packaging costs by 80% on the invoice. The same applies for so-called disposable packaging. In the event of any failure to comply with the packaging specifications, e.g. failing to use pallets, we are entitled to reduce any associated additional costs on the invoice. In accordance with the German Packaging Act [Verpackungsgesetz] from 1 January 2019, we only accept disposable or reusable packaging consisting of materials that do not pose a health risk and that can be recycled. Packaging materials that do not comply with these stipulations will be returned by us on a freight-collect basis.
b) Shipping: If we have agreed to pay the shipping costs, the supplier must select the cheapest shipping method for us and the most reasonable dispatch route. In the event of a failure to do this, we reserve the right to reduce any potential excess freight charges on the invoice. The quantity, weight and condition of all deliveries will only be recognised in accordance with our observations. If the shipping documents are missing, the consignment will be stored at the supplier's expense and risk until the correct papers are received. It is essential for our order number and product number to be specified on all shipping documents. Any delays due to a failure to provide the order details or to issue the required documentation for the consignment will be at the supplier's expense. Duplicate consignment notes must be submitted as evidence of any pre-paid freight charges etc. for distance deliveries.
Invoices must be sent in duplicate. They must not be enclosed with the goods. The invoice must be worded in precise agreement with the terms in our order and must include the order number, product number, order date and recipient. If these details are not included in the order, any resulting delays will not be at our expense.
At our discretion, we will make a full payment (with no discount) within 30 days of receiving the invoice or a payment discounted by 3% within 14 days of receiving the invoice, unless an alternative agreement has been made in writing. All payments are made with tacit reservation of any rights due to possible concealed defects that only become apparent when the goods are processed or used.
If the goods arrive after the invoice, the payment period starts on the date when all the goods have been received.
Payment may also be adjusted to offset any claims we are entitled to against the supplier or an affiliated company. We settle invoices 1x weekly, applying the agreed discount rate in each case.
10. Complaints and warranty
Complaints – including those relating to construction, manufacturing or material faults – are deemed to have been made in a timely manner as per Section 377 HGB, if obvious defects are indicated by the day following the delivery and if concealed defects are indicated within 3 weeks of their discovery.
Defects that cannot be identified simply by means of a visual inspection or identity check are regarded as concealed defects. In amendment to Section 438 BGB, warranty claims for concealed defects have a limitation period of 5 years.
The warranty provided complies with the statutory provisions unless otherwise agreed in writing. The limitation period for warranty claims begins from the moment the complete delivery is made or all services have been accepted or received. If the deliveries involve stand-alone devices, system units etc. that require no further modification on our part, the limitation period begins once the items are commissioned and put into live operation. Within the statutory warranty period, we may at our discretion assert statutory warranty claims due to faults, including the absence of promised features. In urgent cases or if the supplier fails to fulfil their warranty obligations immediately, we are entitled to replace or repair defective parts and to rectify any resulting damage at the supplier's expense. If replacement deliveries are made or if faults are rectified, the warranty period will restart for the replaced parts. Receipt of a complaint results in the limitation period restarting (Section 212 BGB).
By accepting or approving the drawings, documents and technical descriptions submitted by the supplier, we do not waive our right to make warranty claims.
The supplier is obliged to compensate for any damage incurred by us, either directly or indirectly (lost profit, damage to items other than the delivery item etc.), as a consequence of a faulty delivery due to an infringement of the official safety regulations or for any other reason attributable to the supplier. This obligation to pay compensation explicitly also includes consequential damages. If we are held liable for damages by a third party, the supplier will assume liability on our behalf to the same extent as if they were directly liable. If the third party involves a consumer, the provisions in Sections 478, 479 BGB are applicable. In terms of settling damages between us and the supplier, the principles in Section 254 BGB shall apply mutatis mutandis. The supplier must also cover damage or expenditure pursuant to Sections 683, 679 BGB arising e.g. from a product recall campaign instigated by us or from any serial damage incurred. We will inform the supplier about the nature and scope of any campaign of this kind. In the event of a product defect, the supplier shall indemnify us from any potential third-party claims. On request, the supplier will prove that they have appropriate insurance in place.
12. Models, samples, tools, drawings etc.
If the orders include the creation and acquisition of models, samples, tools, drawings and other documentation and information, irrespective of whether these have been charged separately or are included in the purchase price for the goods, it is agreed that these models, samples, tools, drawings and other documentation and information will become our property when the contract is agreed and no later than when production takes place. However, to allow our orders to be processed, these items will be ceded on loan to the supplier. The models, samples, tools, drawings and all other documentation and information must be treated as confidential, used only to handle our orders and must not be copied.
It is not permitted to provide any of the models, samples, tools, drawings or other documentation and information produced according to our specifications to a third party. The same applies for any models, samples, tools, drawings or other documentation and information we provide to the supplier. Items that are protected as ours under the statutory provisions of industrial property law must never be supplied to third parties. This still applies if no further orders are being issued. In particular, it is agreed between the supplier and ourselves that the supplier will cover the cost of storing and maintaining the samples, models, tools, drawings and all other documentation and information on our behalf in an appropriate manner, including adequate insurance against fire, water and theft; Section 690 BGB is not applicable. At our discretion, we may ask the supplier to hand over the models, samples, tools, drawings and all other documentation and information belonging to us and, in this event, the supplier has no right of retention. However, if in fact the models, samples, tools, drawings or other documentation and information belong to the supplier due to particular contractual agreements, we are entitled to purchase and dispose of these items by paying the relevant cost price – if applicable, taking into consideration any wear and tear or amortisation that has occurred. Tools and models must be stored in a different building from their associated plans. This is to ensure they can be replaced e.g. in the event of a fire.
13. Retention of title
All deliveries made to us must be free from any stipulations relating to retention of title. If the order confirmation or invoice nevertheless includes such reservations, these are ineffective even if we have not registered an objection. By accepting our order, the supplier is considered to have accepted that the goods to be supplied are our property. Any materials or other documentation and information we provide for the supplier's orders continue to be our property under all circumstances and must be labelled accordingly.
14. Patent infringement / property rights
The supplier guarantees that we are not infringing any existing third-party property rights by using the goods supplied. The supplier specifically undertakes to indemnify us against any third-party claims or associated damage incurred by us in this regard. In this case, we also reserve the right to demand at our discretion that
a) the contract be cancelled in return for full reimbursement of any payments made, or
b) those parts, which cannot be used due to a third party's existing property rights, be replaced by other parts, or
c) the property rights owner be compensated through payment of the requested licence fee by the supplier.
The supplier is obliged to regard our orders and the resulting work as a trade secret and to treat them confidentially. The supplier may only refer to the commercial relationship between us if we have given explicit written consent. This stipulation continues to apply after the end of the contractual relationship but is rescinded if the knowledge contained in the documents, drawings, calculations or other documentation and information has entered the public domain.
We may withdraw from the contract by issuing written notification and will not be liable for any kind of damages, if insolvency proceedings are applied for or announced in relation to the supplier's assets, or if the supplier suspends payments, or if their company goes voluntarily or is forced into liquidation. We are still entitled to exercise the aforementioned right even if the contract has been completely or partially fulfilled by one or both of the contracting parties as long as the supplier still has a warranty obligation or if the supplier's company is transferred to a third party.
17. Safety precautions / quality
The supplier undertakes to comply with all regulations, guidelines and directives issued by the legislator (including the EU), the regulatory authorities, professional associations and other relevant organisations regarding the implementation of accident prevention and environmental protection (e.g. RoHS, REACH). If it is necessary to label products with conformity marks (e.g. the CE symbol) to show that the goods conform to the regulations and standards (including EU standards), the supplier will apply such marks to the goods as prescribed without being asked to do so. The supplier will send any additional written conformity declarations without being asked to do so along with the invoice or other delivery documents. The supplier undertakes to provide their deliveries and services in accordance with generally accepted engineering standards, safety regulations and the agreed technical data.
Any assignment of claims against us is excluded (Section 399 BGB).
19. Place of performance, risk assumption and place of jurisdiction
At our discretion, the place of performance for delivery, services and payment is either the receiving location specified by us or our company headquarters. The supplier bears the risk up to the place of performance, or up to the receiving location specified by us and until the agreed acceptance has taken place there. The place of jurisdiction is our relevant company headquarters.
20. Applicable law
The sole applicable law for the contractual relationship is the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If these conditions of purchase are provided in a language other than German, the German version of the text is definitive in case of any doubt.
21. Severability clause
If specific provisions in these general conditions of purchase are ineffective or unworkable, or should a provision become ineffective or unworkable after the contract is concluded, this has no impact on the validity of the remaining provisions in these general conditions of purchase. The ineffective or unworkable provision should be replaced by an effective, enforceable provision that comes as close as possible to the economic objectives that the contracting parties intended to achieve with the ineffective or unworkable provision. The same principle applies in the event of any loopholes being discovered in these general conditions of purchase.