General Terms and Conditions of Purchase (01.06.2012)
◾ 1 Scope of application
1. These Terms and Conditions of Purchase shall apply to all business transactions between us and the suppliers and contractual partners, even if they are not mentioned in subsequent contracts. They apply accordingly to work and services. Acceptance of the delivered goods shall be replaced by acceptance in the case of work and services and by receipt of the service in the case of services.
2. Our terms and conditions of purchase apply exclusively for use vis-à-vis:
3. Conflicting, additional or deviating terms and conditions of the supplier shall not become part of the contract unless we have expressly agreed to their validity in writing. These Terms and Conditions of Purchase shall also apply if we accept a delivery from the supplier without reservation in the knowledge of the supplier's conflicting or deviating terms and conditions.
4. Additional or deviating agreements to these Terms and Conditions of Purchase, which are made between us and the supplier and contractual partner for the execution of a contract, must be recorded in writing in the contract. This also applies to the waiver of this written form requirement.
5. Rights to which we are entitled under the statutory provisions beyond these Terms and Conditions of Purchase shall remain unaffected.
◾ 2 Conclusion of contract and contract amendments
1. Cost estimates and offers from our contractual partners are free of charge for us
2. An order shall only become binding if it has been placed by us in writing or, in the case of orders placed verbally, by telephone or using other means of distance communication, has been duly confirmed in writing. Transmission by fax or e-mail fulfils the written form requirement of this contract, provided that receipt can be proven. A fax protocol or e-mail confirmation of receipt shall suffice as proof of receipt. Machine-generated orders are also valid without a signature.
3. Silence on our part in response to offers, requests or other declarations by the supplier shall only be deemed to constitute consent if this has been expressly agreed in writing. Insofar as the order contains obvious errors, typing or calculation errors, it shall not be binding on us.
4. The supplier must inform us in writing before conclusion of the contract if the ordered goods are subject to export controls or other restrictions on marketability in accordance with the regulations applicable in the country of the delivery address. Otherwise, we shall be entitled to withdraw from the contract without prior notice and irrespective of any fault on the part of the supplier. Further claims on our part shall remain unaffected.
5. If the contractual partner does not object within ten calendar days of receipt of our order, his silence shall be deemed to be acceptance of the offer contained in our order. If we have concluded a framework agreement with the supplier for future deliveries, an order placed by us (framework call-off/delivery schedule) shall be binding if the supplier does not object to us within three working days of receipt. We are authorised to amend the order.
6. If it becomes apparent during the execution of a contract that deviations from the originally agreed specification are necessary or expedient, the supplier must inform us immediately and submit proposals for changes. We will inform the supplier whether and which changes he has to make compared to the original order. If the costs incurred by the supplier for the fulfilment of the contract change as a result of these changes, both we and the supplier shall be entitled to demand a corresponding adjustment of the agreed prices.
7. Order confirmations, dispatch notes, consignment notes, delivery notes, invoices and other correspondence from the supplier must in particular contain the VELOMAT article, order, item, material and supplier number as well as the order date.
8. If an order is (partially) cancelled by us, the contractual partner must stop work immediately.
◾ 3 Foreign trade law and export restrictions
1 We deliver our goods both domestically and abroad.
2. Our contractual partners must therefore inform us in their offer or at the latest in their order confirmation whether the delivery items are subject to export licences in the Federal Republic of Germany.
3. If an export licence is required, the following information must be made available to us when the service is provided:
4. Our contractual partner shall inform us immediately if a delivery is wholly or partly subject to export restrictions under German or any other law.
5. In the event that we are not granted a required export licence, we reserve the right to withdraw from the contract. In this case, all services rendered by us up to that point shall be returned or reimbursed. In this case, the contractual partner may not invoke either the loss of his rights or the loss of our services.
◾ 4 Packaging
1. The packaging of the goods shall be at the expense of the contractual partner.
2. Return and collection of the transport packaging shall be at the expense of the contractual partner.
3. The contractual partner is obliged to take back the packaging in accordance with the statutory provisions. The goods to be delivered must be packed in such a way that no transport damage can occur.
◾ 5 Prices
1. The agreed prices are binding for the respective order.
2. The agreed prices include all ancillary costs such as customs duties, taxes, levies, costs for import, packaging and transport to the shipping address or place of use specified by us as well as for the agreed form of payment, etc.
3. The agreed prices shall include everything else that the contractual partner has to provide in order to fulfil his obligation to perform, including the necessary certificates, drawings, valuations, calculations etc. in the language or languages requested and agreed by us.
4. Prices are generally DDP place of fulfilment in accordance with INCOTERMS as amended from time to time.
5. The statutory value added tax/import sales tax is included in the price.
6. Any additional services shall only be remunerated by us if we have commissioned these in writing to the contractual partner before the start of the work.
7. If an ‘ex works’ price is agreed in exceptional cases, we shall only bear the most favourable freight costs. The agreement on the place of fulfilment shall not be affected by the type of pricing.
8. Price increases after conclusion of the contract are ineffective. Formal letters concerning price increases shall not be recognised as a matter of principle; this shall apply to the same extent to price lists sent. Price increases must be recognised by us in writing. If the contractual partner reduces its prices up to the delivery date, the lowest price between the conclusion of the contract and the delivery date shall be deemed to have been agreed.
9. If the contractual partner has taken over the installation, assembly and/or commissioning, he shall bear all necessary ancillary costs such as travelling expenses, overnight stays, allowances, etc. as well as the costs for the provision, storage and maintenance of tools, devices and assembly equipment, etc. The contractual partner shall also bear the costs for the installation, assembly and/or commissioning.
◾ 6 Delivery and performance obligations
1. The supplier must observe our specifications for the dispatch of the goods. The delivery must be made in packaging appropriate to the type of goods. In particular, the goods must be packed in such a way that transport damage is avoided. Packaging materials are only to be used to the extent necessary for this purpose. Only environmentally friendly, recyclable packaging materials may be used.
2. The dispatch of goods from overseas must be notified immediately in writing. If VELOMAT has agreed to bear the freight costs, this shall only apply to the costs of the cheapest mode of dispatch, even if faster transport is required to meet the agreed delivery periods and deadlines.
3. Underdeliveries/overdeliveries are generally not permitted.
4. The reservation of timely self-delivery is expressly excluded.
5. Each delivery must be accompanied by a delivery note in which the delivery is to be precisely itemised according to type and quantity. Delivery notes, consignment notes, invoices and all correspondence must contain our order number and, if applicable, the name of the object.
6. Partial deliveries are generally not permitted unless we have expressly agreed to them in writing or they are reasonable for us.
◾ 7 Delivery and service deadlines, default and compensation for default
1. Agreed delivery and service dates and deadlines (hereinafter referred to as ‘dates’ and ‘deadlines’) are binding. The receipt of the delivery of goods or other service (hereinafter referred to as ‘service’) by us shall be decisive for compliance with the date or deadline.
2. Timely performance of the service shall only be deemed to have been rendered upon completion of the service/delivery item ready for acceptance or complete handover, including the handover of all documentation required by law or regulations or contractually agreed in the required language, e.g. approvals, test certificates, certificates of conformity, operating and maintenance instructions, storage and processing instructions, spare parts lists and user manuals.
3. The agreed delivery periods and dates are binding. The delivery periods shall run from the date of the order. The goods must be received at the delivery address specified by us within the delivery period or on the agreed delivery date.
4. The validity of § 376 para. 1 sentence 2 of the German Commercial Code (HGB) in the case of fixed trade purchases is excluded.
5. We are entitled to change the agreed dates to an extent that is reasonable for the contractual partner if the change is necessary to ensure the smooth running of our business.
6. If the supplier becomes aware that the delivery time cannot be met, he must inform us immediately in writing, stating the reasons and the expected duration of the delay, as well as any delivery options and delivery quality. He must take all necessary measures to ensure that the agreed delivery date can be met or that only a small delay occurs. The obligation to meet the agreed deadlines remains unaffected. In the event of the supplier's delay, we are entitled to demand a contractual penalty of 1% of the net order value for each week of delay, but no more than 5% of the net order value. Section 341 III BGB is excluded. The contractual penalty will be asserted at the latest with the final payment. Any further claims on our part remain unaffected. Our claim for delivery will only be excluded if the supplier pays compensation instead of delivery at our request. Acceptance of the delayed delivery does not constitute a waiver of contractual penalties and claims for damages.
7. In the event of a delay in performance, the contractual partner shall also bear the costs of any expedited transport of our goods to us and from us to our customers that is necessary as a result.
8. Force majeure, labour disputes, operational disruptions for which we are not responsible, unrest, official measures and other unavoidable events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. The contractual partners are obliged to provide the necessary information without delay within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith. We shall be released from the obligation to accept the ordered deliveries or services in whole or in part and shall be entitled to withdraw from the contract in this respect if these are no longer usable for us - taking into account economic aspects - due to the delay caused by the aforementioned circumstances.
◾ 8 Acceptance, rejection
1. We shall only accept deliveries if delivery notes and shipping documents are complete and in order.
2. Delivery notes must be completed in full, i.e. stating the order number, the order items with article numbers, where the delivery was made, whether partial, remaining or total delivery and when the delivery was made or the department that initiated the order. For all parcel shipments, a delivery note in a sealed envelope must be enclosed with the goods.
3. We shall be entitled to refuse acceptance of consignments if we do not have proper shipping documents on the day of receipt, in particular if our order designations or article numbers are not listed or are incomplete, without this causing us to be in default of receipt or acceptance. The costs resulting from the refusal of acceptance shall be borne by the contractual partner.
4. If deliveries are not made within the agreed time frame by day and hour, we cannot be deemed to be in breach of our obligation to accept delivery. For deliveries that are made earlier than agreed, there is no immediate acceptance obligation for the client. The contractual partner shall be liable for all damages, costs, demurrage etc. arising from non-compliance with these provisions.
5. With regard to quantities, weights, lengths and dimensions or other delivery and measurement units, the values determined by us during the incoming goods inspection shall be decisive, subject to proof to the contrary. If there are differences in the number, length, dimensions or weight of the delivered goods, the values determined by our incoming goods inspection or by third parties during the delivery to this incoming goods inspection in accordance with the instructions shall be decisive.
6. The signature on the contractual partner's delivery notes shall not constitute any statements about the quality of the goods delivered, nor shall the contractual partner's terms of delivery and payment be recognised.
7. In the event of excess deliveries outside the agreed quantity, we shall have the option of rejecting the excess delivery, storing it with third parties against reimbursement of costs by the contractual partner or reducing the price for the excess delivery portion. If we accept the excess delivery, the contractual partner shall grant us a value date for the excess quantity accepted by us, which shall then be negotiated.
8. The unloading possibilities of the delivery address must be observed before loading.
9. The storage of items required for the provision of services on the client's premises may only take place in allocated storage areas. The contractual partner shall bear full responsibility and risk for these items until the transfer of risk.
◾ 9 Documentation and safety data sheets
1. Contractually agreed documentation shall be handed over to us free of charge at the latest upon delivery/acceptance in triplicate in paper form and additionally on an electronic data carrier. The storage and read format must correspond to a standard software format customary in the trade or industry in Germany. It must be prepared in the required language and in accordance with the international SI system of units.
2. The contractual partner shall provide us with a complete machine directive and technical documentation with a complete list of spare parts and wearing parts, consisting at least of the documents specified in No. 3 of Annex V to the EC Machinery Directive, including risk analysis/risk assessment. The contractual partner must provide original operating instructions and maintenance instructions for specialised personnel in German or the agreed language at its own expense.
3. The contractual partner as producer or importer must provide a declaration or a declaration of conformity in accordance with Annex II to the EC Machinery Directive and observe the CE labelling obligation.
4. The contractual partner guarantees and documents that the delivery items comply with the relevant accident prevention and occupational health and safety regulations and the recognised occupational health and safety rules of both the country of the contractual partner and the Federal Republic of Germany and the intended country of use. In particular, the contractual partner shall be responsible for ensuring that the delivery items comply with the relevant EU directives and the national laws and regulations issued for this purpose in the respective valid version and that the conformity assessment procedures prescribed in the directives have been carried out. If claims are asserted against us by a third party due to non-compliance with such regulations, the contractual partner shall indemnify us against all costs incurred in this connection upon first written request. Our right to indemnification shall exist irrespective of any fault on the part of the contractual partner.
5. The contractual partner is obliged to send us a safety data sheet in accordance with the Hazardous Substances Ordinance prior to delivery if the materials ordered contain substances for which a safety data sheet must be prepared.
6. If the documentation is not free of errors or not provided in good time with the delivery of the goods or at the agreed time, we shall consider the overall service as not provided and may assert the statutory rights arising from non-fulfilment.
◾ 10 Transfer of risk and acquisition of ownership
1. The contractual partner shall bear the risk of any deterioration, including accidental loss, until acceptance of the goods by us or our authorised representative at the place to which the goods are to be delivered in accordance with the order, even in the case of dispatch.
2. The risk shall only pass to us upon acceptance or, if acceptance has been agreed, not before unconditional acceptance by us or our employees.
3. Delivery to a receiving centre other than the one designated by us shall not result in a transfer of risk for the contractual partner even if this centre accepts the delivery. The contractual partner shall bear our additional costs resulting from delivery to a receiving centre other than the one agreed.
4. Return shipments to the contractual partner shall always be at the contractual partner's risk. This shall apply even if an ex works delivery was exceptionally agreed in the originally agreed order or if the dispatch is carried out by us for our own account.
5. If the supplier is obliged to install or assemble the goods at VELOMAT's premises, the risk shall only pass to us when the goods are put into operation.
◾ 11 Hazardous substances
1. The supplier must observe the Hazardous Substances Ordinance (GefStoffV) when delivering the goods, in particular to package and label the goods concerned accordingly and to expressly refer to hazardous substances in the delivery note.
2. The supplier shall comply with the provisions of the Directives of the European Parliament and of the Council of 8 June 2011 No. 2011 /65/EU on the restriction of the use of certain hazardous substances in electrical and electronic equipment (Restriction of Hazardous Substances - RoHS) and No. 2002/96/EC on waste electrical and electronic equipment (Waste from Electric and Electronic Equipment - WEEE) and the requirements of the national implementations, in particular the Electrical and Electronic Equipment Act (ElektroG), to label the packaging of the goods accordingly and to confirm RoHS conformity in the delivery note with the reference ‘RoHS-compliant’.
3. In the event of a breach of the obligations under paragraphs 1 and 2 of this provision, we shall be entitled to refuse acceptance of the goods and to withdraw from the contract without prior notice and irrespective of any fault on the part of the supplier. Further claims on our part shall remain unaffected.
◾ 12 Quality assurance agreements, acceptance criteria, quality assurance system of the contractual partner
1. The quality assurance agreement and the acceptance criteria are contractually agreed at the start of a business relationship with our contractual partners. They are binding for our contractual partners. They then apply to the entire business relationship and are part of the contract even without being expressly mentioned in follow-up contracts. Clause 12 b applies accordingly to any changes.
2. We will inform our contractual partners of any changes to the quality assurance guidelines and the acceptance criteria. If our contractual partners do not object to the notified versions of the quality assurance agreements, delivery and packaging regulations and the acceptance criteria within 4 weeks, these will be deemed to have been approved by the contractual partner after the 4 weeks have elapsed. We will specifically draw our contractual partners' attention to this legal consequence when we send them the amended versions.
3. Quality assurance agreements between us and our contractual partners apply to the entire business relationship between us and our contractual partners.
4. The contractual partner must set up and maintain a documented quality assurance system that is suitable in terms of type and scope and corresponds to the latest state of the art. He must carry out a thorough functional and quality control before delivery, adequately record all measures taken to fulfil these obligations and archive them for at least 10 years.
5. The contractual partner hereby expressly agrees that we may carry out quality audits to assess the effectiveness of his quality assurance system at any time without prior notice. The contractual partner will, upon request, grant us access to certification and audit reports as well as to test procedures carried out, including all test records and documents relating to the delivery, and make them available if required. This applies to the same extent to environmental management audits.
◾ 13 Guarantees
1. The contractual partner guarantees and assures that all deliveries and services comply with the latest state of science and technology, the relevant legal provisions and the current regulations and guidelines of authorities, professional associations and trade associations (e.g. DIN, VDE, VDI, TÜV, GL, UL, CSA, CCC, ROHS, WEEE and Gost or equivalent international standards) and that only environmentally friendly materials are used that comply with the applicable disposal standards and the latest state of recycling technology.
2. The contractual partner further guarantees and assures that all deliveries and services comply with the current accident prevention regulations of the professional associations responsible for us that apply to the object of the order (Section 2 Paragraph 1 Sentence 1 VGBI) and the GAA Ordinance (Immission Control Act).
3. The contractual partner also guarantees compliance with the following standards:
(1) EC Machinery Directive 98/37/EC with Annex 1-6
(2) EC Low Voltage Directive 73/23/EEC
(3) EC Directive 89/336/EEC Electromagnetic Compatibility
(4) EC Directive 2004/22/EC for measuring instruments (MID)
(5) Electrical equipment of machines EN 60204/VDE 0113 Part 1
(6) Equipment and Product Safety Act GSG,GPSG
(7) ElektroG
4. The contractual partner further guarantees and ensures that the deliveries and services are free of third-party rights and that he has unrestricted authority to dispose of them.
5. The contractual partner also guarantees the use of appropriate materials, proper design and execution, flawless functioning, achievement of the agreed services under the agreed conditions.
6. If deviations from these regulations (§ 13 a – d) are necessary in individual cases, the contractual partner must obtain our written consent in advance. This consent does not limit his warranty obligation. If the contractual partner has concerns about the type of execution we want, he must notify us of this immediately in writing.
7. The supplier also guarantees that the metallic materials of the goods delivered are free of ionizing radiation. This is the case if the specific total activity of the metallic materials is significantly below the value of 0.1 Becquerel per gram (Bq/g) or if the metallic materials show no indications of ionizing radiation when checked with suitable measuring devices that, within the scope of the measurement accuracy, exceed the natural ambient radiation on the day of the measurements. The supplier indemnifies us against all claims by third parties that are asserted against us or our customers due to a breach of these guarantees.
◾ 14 Warranty
1. We will notify the contractual partner of any obvious defects in the delivery in writing as soon as they are discovered in the normal course of business. Our notification is deemed to be immediate if it is made within five working days of us receiving the delivery/service. We will notify you of any defects that are not obvious and discovered later within five working days of becoming aware of them.
2. If a delivery is made directly by the contractual partner to a third party, the inspection period begins at the time of transfer of risk to that third party. If the third party notifies us of a defect within the aforementioned five working days, the notice period is also met with regard to the contractual partner if this notice of the defect is passed on to the contractual partner immediately.
3. Defects in the delivery or service, including failure to achieve guaranteed data and the absence of assured properties, must be remedied by the contractual partner immediately and free of charge, including all additional costs, at our discretion by means of repair or replacement. The additional costs include in particular those costs incurred in troubleshooting, removing the defective part and installing the replacement part, as well as expert and transport costs.
4. In the case of consignments of goods that consist of a large number of identical goods, we only have to examine a reasonable proportion of the goods delivered for defects. If the inspection makes the goods unsaleable, a reasonable sample of the items delivered is sufficient. If individual samples of a consignment of goods are defective, we can, at our own discretion, request that the supplier separate the defective items or assert claims for defects for the entire consignment of goods. We are entitled to carry out the separation ourselves at the supplier's expense if the supplier does not begin the separation immediately. If, as a result of defects in the goods, an inspection of the goods that goes beyond the usual scope of the incoming goods inspection is necessary, the supplier must bear the costs of this inspection.
5. We will check immediately after receipt of the goods, as far as this is possible in the normal course of business, whether they correspond to the number of pieces and type ordered and whether there are any externally visible transport damages. A further inspection of incoming goods will not take place.
6. If we have to block the goods due to defects in the delivered goods, we can charge the supplier a flat-rate administration fee of EUR 250.00 unless the supplier can prove that no or less damage has been caused. Any further claims we may make remain unaffected.
7. Defective goods are returned at the cost and risk of the contractual partner. We are also entitled, after setting a deadline, to have these goods delivered to him freight collect. A replacement delivery must be made freight, customs and packaging free. Costs incurred by inspecting defective goods or services must be borne by the contractual partner.
8. Defects that only become apparent during processing or use of the goods also entitle us to demand reimbursement of the costs incurred in vain from the contractual partner.
9. If repair or replacement delivery is not possible or unsuccessful, or if it is delayed or refused beyond a reasonable deadline set by us in writing, we are entitled to the statutory rights of withdrawal or reduction. If the delivery is not made within the agreed deadlines, the supplier is not entitled to accept the goods. Claims for damages are expressly reserved. This also applies to claims for damages due to non-performance.
10. If the contractual partner culpably fails to meet its warranty obligations to repair or replace the goods within a reasonable deadline set by us, or if no deadline is required in the statutory exceptional cases, we can take the necessary measures ourselves or have them carried out by third parties at its own expense and risk - without prejudice to its warranty obligation.
11. In urgent cases, after consultation with the contractual partner, we can carry out the repair ourselves or have it carried out by a third party at its own expense and risk. If prior consultation with the contractual partner is not possible, we will initiate the necessary measures immediately and inform the contractual partner immediately.
12. We can remedy minor defects ourselves without prior agreement, without this affecting the contractual partner's warranty obligation. We can then charge the contractual partner with the necessary expenses. The same applies if there is a risk of unusually high damage.
13. In the cases of section k, we are also entitled to demand reimbursement from the contractual partner for the expenses that we had to bear in relation to our customer because the customer has a claim against us for reimbursement of the costs of subsequent performance, in particular transport, travel, labor and material costs.
14. The contractual partner hereby assigns to us - on account of performance - all claims to which he is entitled against his sub-supplier from the delivery of defective goods. We accept this assignment.
15. In the event of repeated delivery of defective goods, we are entitled to withdraw from the contract after a written warning and another defective delivery, even for parts of the order that have not yet been fulfilled.
16. If data sheets or technical specifications contain obvious errors or insufficient information, the contractual partner is obliged to inform us of this in writing immediately before production begins. Our approval of technical documents and/or calculations of the contractual partner does not affect their liability for defects.
17. The warranty period is 36 months, calculated from the transfer of risk; however, for buildings, work on buildings and items that are used for buildings in accordance with their usual use and cause them to be defective, it is six years. In the event of repair or subsequent delivery, the limitation period begins again.
18. The supplier is obliged to supply us with the necessary spare parts and accessories as well as tools for a further period of ten years after the expiry of the limitation period. Otherwise, Section 438 of the German Civil Code remains unaffected.
◾ 15 Liability
1. The contractual partner is liable to us for any damages that we incur due to the faultiness of the delivery or service or due to a breach of contractual due diligence, care, information or other contractual secondary obligations or due to non-compliance with contractually agreed deadlines (delay), without the need for any further evidence other than that of the objective breach of duty, the causal connection to the damage that occurred and the amount of the damage.
2. Insofar as the liability of the contractual partner depends on the fact that he is responsible for the breach of contract under the statutory provisions, he can release himself from his liability by proving that he is not at fault. The contractual partner is responsible for the fault of the contractual partner's vicarious agents and sub-suppliers in the same way as his own fault. The contractual partner cannot release himself from his liability by proving that the vicarious agents or sub-suppliers were properly selected or monitored.
3. To the extent that the contractual partner is liable under these provisions, he shall indemnify us against all claims by third parties.
4. The contractual partner's liability includes all damages, in particular lost profits and consequential damages incurred by us as a result of delivery bottlenecks and production disruptions.
◾ 16 Manufacturer liability and recall
1. If the contractual partner is responsible for product damage, a violation of official safety regulations or a defect, he is obliged to indemnify us against third-party claims for damages arising from domestic and foreign product liability upon first request, provided that the cause lies within his sphere of control and organization and he is himself liable in external relations.
2. If the cause of the damage lies within the contractual partner's sphere of responsibility, he bears the burden of proof.
3. If we take back products manufactured and/or sold by us as a result of defects in the contractual object delivered by the contractual partner, if the purchase price was reduced for this reason or if we were otherwise held liable for this reason, we reserve the right to recourse against the contractual partner. In this case, our rights to defects do not require the setting of a deadline that would otherwise be required.
4. If the claimant relies on a product liability law against us that does not require the person causing the damage to be at fault (this applies in particular to the product liability laws of the EU member states), the contractual partner is liable to us even if he is not at fault, provided that the cause is within his sphere of control and organization. Sections 5 ProdHG and 426 BGB apply accordingly in this case.
5. As part of his liability for damages within the meaning of the above paragraphs, the contractual partner is also obliged to reimburse any expenses in accordance with Sections 683, 670 BGB or Sections 830, 840, 426 BGB that arise from or in connection with a recall campaign carried out by us. We will inform the contractual partner about the content and scope of the recall measures to be carried out - as far as possible and reasonable - and give him the opportunity to comment. Other statutory claims remain unaffected.
6. To the extent that the contractual partner is liable to pay compensation to us, he must also bear the costs of any legal action or recall.
◾ 17 Liability insurance cover
1. The contracting party undertakes to maintain product liability insurance with a coverage amount of at least
◾ €10 million per personal injury case
◾ €10 million per property damage case
◾ €5 million per financial loss case
and to provide us with evidence of this. If the insured coverage amount for each type of damage and case is below the required coverage amounts, the contracting party is obliged to point this out before accepting the order or in the event of subsequent changes.
2. If we are entitled to further claims for damages, these remain unaffected.
◾ 18 Production tests
1. We reserve the right to check the quality of the material used by the contracting party, the measurement accuracy of the manufactured parts and compliance with other regulations in the contracting party's factory or in the factory of its suppliers during production and before delivery.
2. We are entitled to reserve the right to carry out a final inspection of the completed delivery and service item at the contractual partner's factory by ourselves or by a third party commissioned by us.
◾ 19 Shipping and transport insurance
1. SLVS insurance is prohibited. We only bear insurance costs if we have requested insurance in writing.
2. The information in our orders and delivery requests applies. The contractual partner bears our additional costs resulting from delivery to a receiving point other than the agreed one.
3. If weighing is necessary, the weight determined by us on the official weighing device is decisive.
4. During transport, the statutory provisions must be observed, in particular the provisions of the law on the transport of dangerous goods and the applicable dangerous goods regulations including the respective appendices and appendices.
◾ 20 Origin of goods and tax-related evidence
1. The contractual partner is obliged to submit supplier declarations for all items purchased from us regularly without being asked to do so, at least once a year at the turn of the year, for goods delivered with/or without preferential origin.
2. For items ordered for the first time, a supplier declaration must be submitted at the latest with the order confirmation, provided that customs preferences allow the document to be issued.
3. The contractual partner will provide all the necessary information and properly signed proof of origin requested by us without delay. The same applies to sales tax-related evidence for foreign and intra-community deliveries.
4. We are only exempt from the obligation to deduct tax in accordance with Section 48 b Paragraph 1 of the Income Tax Act if the contractual partner provides us with a valid exemption certificate in his name from the tax office responsible for him. Submitting a copy of the exemption certificate is sufficient.
◾ 21 Rights of use for software
1. We acquire an irrevocable, exclusive right of use for software developed for us or parts thereof, unlimited in time and space, covering every known type of use, including the right to rework, reproduce, modify, expand and grant simple rights of use to third parties, unless a restriction arises from the following paragraphs.
2. The contractual partner undertakes to hand over the manufacturer's documentation, in particular the source code, in a form that is readable and usable by us, without being asked to do so, if the application software has been developed specifically for us.
3. If contracts or changes to existing contracts include software and/or consulting services, the contractual partner must immediately agree on a specification sheet with us in which the deliveries and/or services to be provided by the contractual partner are specified in detail.
4. Software is provided to us on commercially available data carriers in machine-readable code together with user documentation. The source code and manufacturer documentation must be handed over to us at the latest upon acceptance and must correspond to the program status at the end of the test phase and acceptance. Measures carried out on the software as part of the warranty must be included by the contractual partner in the source code and the manufacturer documentation without delay; a copy of the updated status must be made available to us immediately without request.
5. If software is included in the scope of delivery without having been developed specifically for us, we acquire a non-exclusive right of use upon acceptance, covering every known type of use, which also includes the granting of simple rights of use to third parties.
◾ 22 Licenses for deliveries and services
1. If rights of use are required for the delivery/service beyond the provisions in section 21, we will receive these upon transfer of risk. We are entitled to use the delivery/service without any temporal or spatial restrictions and in any known type of use, including the right to rework, reproduce, modify, expand and grant simple rights of use to third parties.
◾ 23 Property rights, laws, regulations, official requirements
1. The contractual partner guarantees that no third-party rights are violated by or in connection with his delivery/service.
2. Such rights of third parties include in particular patents, protection certificates, trademarks, utility models, designs, copyrights, industrial property rights, statutory regulations, official, public law or professional association requirements.
3. We are not obliged to investigate whether third-party property rights exist in the contractual partner's delivery/service.
4. If a third party makes a claim against us for this reason, the contractual partner is obliged to indemnify us against these claims upon first written request; this also includes the timely defense of impending claims such as necessary legal defense or legal action. We are not entitled to make any agreements with the third party without the consent of our contractual partner, in particular to conclude a settlement.
5. The contractual partner's obligation to indemnify refers to all expenses that we necessarily incur from or in connection with the claim by a third party.
6. We are entitled to obtain approval from the owner of the property right to deliver, commission or use the delivered items at the contractual partner's expense.
7. The limitation period for the aforementioned claims begins at the earliest two months after the time at which we have satisfied the claims against us for infringement of property rights. This suspension of expiry ends at the latest five years after the time at which our contractual partner has handed over the delivery/service to us.
◾ 24 Requirements for invoices from our contractual partners
1. For each delivery, a single copy of a separate invoice must be submitted to our accounting department separately from the shipment of goods or, if otherwise agreed, to the ordering department.
2. The invoice must match our order descriptions and contain our order and item numbers. Invoices that do not meet our requirements, in particular if order numbers are missing and if the euro requirements are not observed, will be returned to the contractual partner immediately. In this case, the discount period does not begin until the correct invoice is received.
3. The VAT identification number or the tax number assigned to the contractual partner by their responsible tax office must be stated.
4. Invoices must be issued in euros. Invoices in foreign currencies require our prior approval.
5. Invoices must be submitted to us separately with all associated documents, evidence and in a verifiable form after delivery or service has been provided. If they are not submitted in this correct form, they will only be deemed to have been received by us from the time of correction.
◾ 25 Terms of payment and payment
1. We pay invoices either within 14 days with a 3% discount or within 30 days without deduction.
2. The payment periods applicable to us only begin after receipt of the invoice, but not before receipt of the delivery items or provision of the complete service and acceptance of these, if documentation or similar documents are part of the scope of services, not before their contractual handover to us, and the corresponding, proper and verifiable invoice and (if shipped) the proper shipping documents. The time at which these conditions are met is the time at which our respective payment period begins to run (hereinafter: "start of period").
3. If our contractual partner provides the services owed by him before the agreed date, the payment period begins to run at the earliest on the contractually agreed date.
4. Payments are made at our discretion by cash, check, bill of exchange, bank transfer, 3-month acceptance or offsetting with
5. Payment is made on time if the check is sent by post on the due date or the bank transfer is ordered on the due date.
6. When justifying late payment, receipt of an invoice or other payment statement cannot be replaced by receipt of the purchased item. The default interest rate is 3% percentage points above the base interest rate.
7. Our payments are made subject to invoice verification. They do not constitute acceptance of the invoice.
8. Payments are only made to the contractual partner.
9. If advance payments are agreed, we are only obliged to pay if the contractual partner provides us with a personal guarantee from a major German bank in the amount of the advance payment.
10. Payment is made subject to proper contract fulfillment and the price and calculation accuracy of the invoice.
11. If we discover errors in the invoice or in the invoice documents within two years of the final payment, the contracting partner is obliged to reimburse us for the amounts overpaid after notification. The contracting partner is not entitled to invoke any loss of enrichment. We will offset any errors in the same invoice that are in the contracting partner's favor against our claim for reimbursement. The time limit does not apply to our claims arising from unlawful acts.
12. If the contract becomes invalid, terminated or reversed for whatever reason, payments made by us will be subject to interest at 3 percentage points above the base interest rate, without prejudice to further claims. Foreign contracting partners must repay the euro payment amount made by us plus the interest mentioned in euros, regardless of any changes in the exchange rate that may have occurred in the meantime.
13. In the event of faulty delivery or service, we are entitled to withhold our payments to an appropriate extent until proper fulfillment. The contractual partner can only offset our claims with undisputed or legally established claims. Otherwise, offsetting against our claims is excluded.
◾ 26 Subcontractors, cooperation, passing on orders
1. The contractual partner must always fulfill the order himself.
2. Passing on the order or parts of the order, even if the contractual partner delivers in his own name, is only permitted with our prior written consent.
3. Persons who carry out work within our factory premises in fulfillment of the contract must sign our third-party company guidelines. We will hand these over when work begins and they must be returned to us immediately signed.
◾ 27 Carrying out work in our factory, occupational safety
1. Persons who carry out work within our factory premises in fulfillment of the contract must observe the provisions of the respective company regulations, the statutory accident prevention regulations and the regulations of the professional association. The existing regulations for entering and leaving our factories must be observed.
2. We accept no liability for accidents that occur within our area of control, unless they were caused by intentional or grossly negligent breach of duty by our legal representatives or vicarious agents.
3. Persons who carry out work within our factory premises in fulfillment of the contract are obliged to sign our third-party company guidelines. These are provided when the order is placed.
◾ 28 Provision of parts and materials, storage
1. Goods or parts provided by us (hereinafter "provided parts") remain our property. They must be marked as our property immediately after they are provided and stored separately.
2. The provided parts may only be used in accordance with the contractual arrangements between us and our contractual partners. Any other use is not permitted.
3. The contractual partner assumes the risk of accidental loss, loss, deterioration or damage to our property for these provided parts. Any operational waste or excess consumption is also at the expense of the contractual partner.
4. If the provided parts are sent directly to the contractual partner by a third party, the contractual partner must carry out the incoming goods inspection and quality control. Any complaints must be reported to the third party and to us immediately.
5. Processing and transformation of the parts provided by us are carried out for us, with the result that we acquire ownership of the manufactured item.
6. If the parts provided by us are inseparably mixed with other items that do not belong to us, we acquire joint ownership of the new item in proportion to the value of the items provided (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the contractual partner's items are to be regarded as the main item, it is agreed that the contractual partner transfers joint ownership to us in proportion. The contractual partner keeps the sole ownership or joint ownership for us.
7. The contractual partner is obliged to insure the parts provided at their new value at their own expense against fire, water, theft and other normal business risks. The contractual partner hereby assigns to us all claims for compensation from this insurance. We hereby accept this assignment.
8. Any impending seizure, theft or damage to the parts provided must be reported to us in writing and by telephone immediately after becoming aware of them.
9. We are entitled to inspect the warehouse and stocks at any time or to have them inspected by an agent.
10. Withdrawals and stocks of the goods provided must be reported to us in detail on an ongoing basis, at the latest by the end of the respective month. The contractual partner is obliged to carry out a physical inventory of the parts provided at the end of each calendar year and to inform us of the stocks. We can also request such a physical inventory during the year. Surplus stocks must be returned to us free of charge after the contract has been fulfilled.
11. If the security rights to which we are entitled in accordance with paragraph e and/or paragraph f exceed the purchase price of all of our unpaid reserved goods by more than 10%, we are obliged to release the security rights at our discretion at the request of the contractual partner.
◾ 29 Models, tools, molds, devices, drawings and documents
1. We retain ownership of tools, models, drawings, devices, samples, work documents, software, measuring equipment, test specifications and similar documents or production equipment (hereinafter referred to as "tools") that we make available to the contractual partner.
2. If tools, devices or measuring equipment are manufactured by the contractual partner in whole or in part on our account, the manufacture is carried out on our behalf with the result that we acquire sole ownership of the manufactured item. The handover is replaced by the contractual partner being entitled to possession and storage of the items on loan and free of charge for the duration of the respective order. This also applies if we only pay for the manufacture in part or if amortization of the manufacturing costs via delivery quotas has been agreed. We also have the sole, exclusive right to use these tools.
3. The contracting partner is obliged to use tools manufactured at our expense or provided by us exclusively for the manufacture of the goods ordered by us.
4. Changes to the tools may only be made with our prior written consent. This also applies to any destruction and/or disposal.
5. The contracting partner is obliged to insure these tools at their new value at their own expense against fire, water and theft damage and other normal operational risks. At the same time, the contracting partner hereby assigns to us all claims for compensation from this insurance; we hereby accept the assignment.
6. The contracting partner is obliged to carry out any necessary maintenance and inspection work on these tools as well as all maintenance and repair work in a timely manner at their own expense. They must notify us of any malfunctions immediately; if they negligently fail to do so, claims for damages remain unaffected.
7. The contracting partner is obliged to keep all images, drawings, calculations and other documents and information received or created on our behalf strictly confidential. They may only be disclosed to third parties with our prior written consent. The confidentiality obligation also applies after the completion of this contract; it expires if and to the extent that the manufacturing knowledge contained in the images, drawings, calculations and other documents provided has become generally known.
8. If the contractual partner violates the provisions of this clause 28, he must pay a contractual penalty of 10% of the order value, but at least € 5,000. Claims for damages remain unaffected.
9. All tools belonging to us must be returned to us in a usable condition immediately at the contractual partner's expense and risk upon termination of the contract. The contractual partner has no right of retention over these tools.
◾ 30 Assignment of claims and retention of title
1. The contractual partner is not entitled to assign claims against us or have them collected by third parties without our prior consent. We will grant consent to the assignment in accordance with the principles of good faith. In the event that the contractual partner has granted its supplier an extended retention of title in the ordinary course of business, our consent is deemed to have been granted.
2. If the contractual partner has effectively reserved ownership of the delivered goods, ownership of the delivery item passes to us upon payment of this item.
3. The extensions of the extended retention of title and the so-called current account and group retention of title do not apply.
4. Retention of title in favor of the contractual partner and third parties is excluded.
◾ 31 Confidentiality and data protection
1. All business and trade secrets as well as all business or technical documents and information from us (including characteristics that can be found in objects, documents or software handed over, and other knowledge or experience) must be kept secret by the contractual partner from third parties and adequately protected from access by third parties as long as and to the extent that they are not demonstrably publicly known.
2. This information may only be made available in the contractual partner's own company to those persons who must necessarily be called upon to use it for the purpose of delivery to us and who are also permanently obliged to maintain confidentiality beyond their employment relationship.
3. They remain our exclusive property.
4. Such information may not be reproduced or used commercially without our prior written consent - except for deliveries to us.
5. At our request, all information originating from us (including copies or recordings made if applicable) and items loaned out must be returned to us immediately and in full or verifiably destroyed. We reserve all rights to such information (including copyrights and the right to register industrial property rights such as patents, utility models, etc.). Insofar as these have been made available to us by third parties, this legal reservation also applies to the benefit of these third parties.
6. Products that are manufactured according to documents designed by us, such as drawings, models and the like, or according to our confidential information or with our tools or tools that have been built afterward, may not be used by the contractual partner themselves, nor offered or delivered to third parties. This also applies mutatis mutandis to our print orders.
7. This obligation applies to all processes and activities of the contractual partner and its customers. It remains in effect even after an offer has been submitted or an order has been fulfilled. The contractual partner will impose this obligation on its vicarious agents or employees for an unlimited period of time. The obligation expires when the information or production knowledge has become generally known.
8. Personal data must be treated by the contractual partner in accordance with the provisions of the BDSG, in the currently valid version.
9. Sub-suppliers, subcontractors or other persons engaged by the contractual partner to fulfill its obligations must be obliged accordingly.
10. We are entitled to store the data relating to the contractual partner electronically and to process and use this data for our operational purposes in accordance with the statutory provisions.
◾ 32 Advertising ban
1. The contractual partner must treat the pre-contractual negotiations, the final conclusion of the contract and all related commercial or technical details as confidential.
2. Mentioning them to third parties is only permitted with our express written consent. This also applies to advertising statements that refer in any way to the existing business relationship with us.
3. Any statutory notification obligations are excluded from this confidentiality agreement.
◾ 33 Right of withdrawal
1. We are entitled to withdraw from the contract if the contractual partner applies for insolvency proceedings to be opened over his assets, insolvency proceedings are opened or rejected due to insufficient assets, or an out-of-court settlement procedure is applied for or the contractual partner stops making payments, even temporarily.
2. We are also entitled to withdraw from the contract if the use of the ordered goods is impossible, is made considerably more difficult economically or results in a significant reduction in our requirements due to industrial disputes, strikes, lockouts, operational disruptions, accidents, unrest, warlike events, official interventions, similar events or force majeure, as well as other cases for which we are not responsible. Before exercising the right of withdrawal, we can request a postponement of the delivery time for up to 12 months.
◾ 34 Place of performance, place of jurisdiction, choice of law
1. Unless otherwise agreed in writing, our company headquarters in 01917 Kamenz is the exclusive place of performance for both parties. If another place of receipt/use is specified in our order, this is the place of performance for the service.
2. The place of performance for payments is our company headquarters in 01917 Kamenz.
3. The courts responsible for our company headquarters in 01917 Kamenz are agreed with the contractual partner as the place of jurisdiction. This also applies to document, bill of exchange and check processes. This agreement also applies in the event that our contractual partner does not have a general place of jurisdiction in the Federal Republic of Germany. We are entitled to take legal action against our contractual partner at any other legal place of jurisdiction.
4. German law applies exclusively. The Hague Convention of June 15, 1955 on the International Sale of Goods and the United Nations Convention of April 11, 1980 on Contracts for the International Sale of Goods are expressly excluded.
5. The contract language is German.
◾ 35 Severability Clause
1. Should a provision of these purchasing conditions and the other agreements made be or become invalid in whole or in part, this shall not affect the validity of the remaining purchasing conditions. The contracting parties are obliged to replace the invalid provision with a provision that is as economically equivalent as possible. The same applies to any gaps.
2. Should a provision of these purchasing conditions or of the contract be invalid due to mandatory foreign law, the contracting party shall, upon request, agree with us on those supplements to the contract and make those declarations to third parties or authorities through which the validity of the regulation in question and, if this is not possible, its economic content is also guaranteed under foreign law.
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