(Status: December 2013)
1. Area of application
1.1 The following terms and conditions are the basis for all contracts concluded with our suppliers. They are acknowledged by the suppliers upon acceptance of our order, however upon the first delivery to us at the latest and are valid for all future business with the supplier.
1.2 Deviating delivery conditions of the suppliers as well as modifications, amendments and oral ancillary agreements are only valid if we have agreed to them explicitly.
1.3 Our purchase conditions are valid for all natural and legal persons or partnerships having legal capacity who act by execution of commercial or self-employed activities (entrepreneurs) as well as for legal persons of the public law and public special funds.
2. Conclusion of Contract
2.1 Only written orders are binding. Orders or agreements made orally, by phone or by telegraph only become binding by our written confirmation.
2.2 Our orders have to be confirmed by the suppliers without delay by return of the legally binding signed order copy.
2.3 In case there is a permanent business relation and the supplier wishes to refuse the order, he has to declare that within two (2) weeks from the date of the order letter, otherwise the order is deemed accepted. In any case we reserve the right to withdraw orders within two (2) weeks from the date of the order letter unless confirmed in writing within this time period. An order ac-knowledgement the contents of which deviates from the order or a belated acceptance of the order represent a new offer and have to be accepted by us in writing. In any case our silence is not to be deemed an acceptance of an order acknowledgement with deviating contents.
3. Scope of Performance, Prices, Payment Terms, Assignment
3.1 The prices agreed upon are fixed prices, including costs for freight, packaging and – if applicable – insurance, customs duties and taxes as well as other fees unless otherwise agreed upon in writing. All costs which are not part of the goods’ value as such have to be indicated separately.
3.2 Instructions for the operation, handling, use and service in the frame of the utilization or other documents have to be added to the deliveries in German language and are – unless otherwise explicitly agreed upon – deemed to be included in the price.
3.3 In case the price is not stipulated upon the placing of an order or is not known to us, we have the right to cancel the order within two (2) weeks after the announcement of the price and to withdraw from the contract.
3.4 In case price increases are exceptionally admissible in accordance with the contractual agreements, these shall only become valid after we have approved this increase in writing.
3.5 Unless otherwise agreed upon in writing, we will pay within fourteen (14) days with a discount of three (3 %) percent or net within sixty (60) days. These terms start upon the respective receipt of the verifiable invoice, however at the earliest upon the day on which we receive the consignment. The date on which we place the bank transfer shall be decisive for the observance of the payment term.
3.6 In case of justified defaults as well as Force Majeure, in particular strike, lockout, war, raw material and energy shortage, interruptions of operation and traffic for which we are not responsible, as well as other restricting mandatory regulations the running of the time period referenced in clause 3.5 is suspended until the obstacle preventing the performance is eliminated.
3.7 The form of payment is at our discretion. In particular with regard to business with foreign countries we are free to choose the mode of payment.
3.8 The unreserved settlement of the invoiced amount by us does not constitute an acceptance of the supplier’s performance as pursuant to the agreement.
3.9 Claims of suppliers against us can only be assigned upon explicit written approval. In case the transaction is a commercial transaction for both parties, § 354 a HGB shall be applicable.
4. Delivery, Delay in Delivery, Passing of Risks
4.1 Delivery dates agreed upon have to be considered as binding. If need be, anticipated consignments can be returned carriage forward.
4.2 The delivery date is deemed to be observed if the consignment is available to us on the date agreed upon at the place of delivery agreed upon. In case delivery is not affected or only partially affected on the date agreed upon we have the right – subject to the legal conditions – to claim compensation for the damage incurred by us due to this delay. We are also entitled at our discretion – after an appropriate period of grace – to withdraw from the contract and/or to claim for damages instead of performance. The same applies to partial deliveries agreed upon with regard to the parts not yet delivered, in case the supplier does not affect delivery of an individual partial delivery on the date agreed upon. The aforementioned right of withdrawal shall be applicable irrespective of whether the supplier is responsible for the non-observance of the delivery time. Our acceptance of a late delivery does not constitute a renunciation of the assertion of damage caused by delay.
4.3 Obvious delays in delivery shall be notified to us by the supplier without delay. In case a new delivery date is agreed upon – which has to be done in writing – our claims for damages due to late delivery remain unaffected.
4.4 Each consignment has to contain a delivery note. The delivery notes have to comprise:
- order number, our reference and the date of the order,
- reference of item,
- number of a possible partial delivery,
- other marking requested in the order,
- number and date of issue of the delivery note,
- quantity of items supplied.
4.5 Partial deliveries are only admissible upon our explicit approval.
4.6 The risk of an eventual loss or deterioration of the goods until the transfer at the place of delivery agreed upon remains with the supplier anyway.
4.7 We do not accept carriers’ insurance notes. Therefore we explicitly do not acknowledge any additional transport charges.
5. Quality Management, Environmental Protection
5.1 The supplier has to observe our requirements with regard to quality management and environ-mental protection.
5.2 The supplier is obliged to take back and take care of a proper pick-up and disposal of packaging material and electronic scrap. Upon request, a corresponding proof regarding a lawful disposal has to be presented.
5.3 In case the supplier does not adhere to this obligation, we are entitled to affect the pick-up and disposal at the supplier’s charge.
6. REACH-compliance and Information-responsibility/RoHS-EU-directive 2011/65/EC
6.1 The supplier ensures accordance to REACH-directive (directive EG-no. 1907/2006) regarding delivered goods incl packing-material. It will be especially ensured that the delivered goods and their packing-material do not contain any substances included in the candidates-list as per Art. 53, paragraph 1 of the directive more than 0,1 % mass-percent (SVHC-substances). The supplier is responsible to register all substances delivered by themselves for subcontractors, in case of register-obligation as per REACH. In case of no register-obligation of the supplier they have to oblige their subcontractors to maintain their obligations according to REACH. A registration by the supplier or his subcontractors is must be provided upon demand in written form.
6.2 The supplier ensures the registration in case of goods or their packing containing substances affected by REACH. The supplier is obligated to provide all information and documentation according to the directive (especially according to Art. 31 ff. of the REACH-directive) within the time-limit, respectively to transfer the information by his sub-contractor to us.
6.3 In case of customers, competitors or public authorities making demands on us that are based on violation of the REACH-directives that the supplier is to blame for we are allowed to claim compensation from the supplier caused by the missing REACH-compliance.
6.4 The listed obligations are also valid (exception: registration-obligations) in case of a supplier’s head-quarter in a non-EU-country. They especially must inform us in case of an SVHC-substance is included > 0,1 % or substances affected by REACH could be released during normal expectable use. RoHS-EU-directive 2011/65/EC
A ) The supplier has to fulfill the entire environmental specification according to German and European law, including EU-directive 2011/65/EC “Limitation of use of certain dangerous substances in electric and electrical devices” and the electrical law.
B) Electric and electrical devices of every category and used components must fulfill the substances-forbiddance according to EU-directive 2011/65/EC and the laws, orders, decisions and other assignments that serve its realization. For this reason the supplier must provide a written declaration of conformity. The device must feature a CE-mark and the symbol according to attachment IV of the EU-directive 2002/96/EG (WEEE).
C) The supplier ensures all products are in accordance to the requirements of the RoHS-directive as per the points A and B. The supplier has to replace all damages and efforts (including costs of prosecution) and all receivables of a third party that are caused by a violation against the RoHS-directive or other valid environmental directives.
7. Reservation of Title, Right of Retention, Set-Off
7.1 We acknowledge a possible reservation of title by the supplier regarding unprocessed goods stored with us. However, we do not acknowledge a reservation of title by the supplier after processing resp. combination or mixing with other goods. Also the assignment of our claims resulting from the resale of the goods delivered to the supplier is excluded.
7.2 The supplier does not have any rights of retention to the extent they are due to counterclaims resulting from any other legal transactions with us.
7.3 The supplier is only entitled to set off with undisputed or legally binding claims.
8. Models, Drawings, Tools
8.1 We are the owner of any models, drawings and tools produced for us.
8.2 These items remain with the supplier by way of loan until completion of the order and have to be kept available for use at no charge as well as surrendered at any time upon request, at the latest however after fulfillment of the contract free of charge. The right of possession and use hereby agreed upon shall expire unconditionally in case insolvency proceedings regarding the supplier’s assets are applied for.
8.3 Any material made available by us remains our property. Its utilization is only admissible for our orders. In case of decrease in value or loss the supplier shall be liable anyway to provide compensation. The processing or transformation of the material is invariably done for us.
8.4 We reserve the title to the tools made available by us; the supplier is obliged to utilize the tools exclusively for the production of the goods ordered by us. The supplier is obliged to insure the original value of the tools belonging to us at his own expense against fire, water and theft. He shall be obliged to have performed possibly necessary maintenance and inspection works in time at his own expense. He shall notify us of any possible disturbances; in case he culpably omits this, any claims for damages remain unaffected.
9. Protection of Construction
9.1 Documents of any kind, as well as models, designs, drawings, tools etc. which are made available by us to the supplier shall be considered as confidential and remain our property. In particular, they must neither be used for other purposes nor copied nor made available to third parties. The supplier shall be liable for a faultless and safe storage of these documents. They shall be returned immediately upon request.
9.2 The delivery of items to third parties which are based on drawings, models etc. made available by us is not allowed, irrespective of whether the production has been effected with our tools or tools manufactured for our order or otherwise.
10. Warranties, Guarantees, Liability
10.1 The supplier shall assume within the legal time limits, starting with the passing of risk, the warranty that the goods delivered do not have any default which affect their value or their suitability, that the goods have the characteristics guaranteed or agreed upon, that they are suitable for the use provided for in the contract and that they correspond to the general technical rules as well as to legal and official regulations applicable to their distribution and their use.
10.2 In case of business transactions with foreign countries, the supplier guarantees that the conclusion and execution of the contract does not infringe any legal, official or other regulations and that all export, customs, fiscal and other duties regulations of the countries concerned are respected.
10.3 In case the goods do not correspond to the terms under clause agreed upon in clause 9.1 and 9.2, we are entitled to request at our discretion that either the supplier remedies the defects of the goods or delivers faultless replacement goods free of charge. In case the supplier does not comply with the request for remedy / replacement within an appropriate time limit fixed for him, we are entitled to perform the remedy ourselves or to have performed by third parties at the supplier’s expense. After fruitless expiry of the deadline we are entitled to withdraw from the contract, to reduce the purchase price resp. to claim the compensation of futile expenditures. In case the supplier has assumed a guarantee for the characteristics or durability of the goods, we are additionally entitled to assert claims resulting from this guarantee. All aforementioned claims are due to us notwithstanding any other legal claims.
10.4 In case of imminent incurrence of damage we are – notwithstanding our other claims – entitled to perform ourselves or have performed the remedy or procurement of replacement at the supplier’s charge after the default has been notified to the supplier. In this case a time limit for a remedy can be dispensed with.
10.5 We will inspect the goods received without delay with regard to possible defaults or deviations from the quality. Noticeable, obvious defaults shall be complained by us without delay, as a rule within up to five (5) working days after receipt of the consignment, hidden defects without delay, as a rule within three (3) working days after their discovery, unless in an individual case a longer time limit is appropriate.
10.6 Costs incurred by us due to a faulty delivery (e.g. inspection and handling costs) shall be compensated to us by the supplier as well as the costs for a justified return shipment and replacement deliveries and remedies.
11. Third Party Rights
11.1 The supplier shall be liable that patents, protective rights and other rights of third parties are not infringed by the delivery and contractual use of the ordered goods. This liability comprises also parts acquired by the supplier from third parties and moreover is not restricted to a fault of the supplier.
11.2 In case claims are asserted against us by third parties due to violations of protective rights, the supplier is obliged to hold us harmless from these claims upon first written request. This hold harmless obligation also comprises the assumption of all expenditures incurred by us in connection with the claims of third parties. The supplier shall hold us harmless from the assertion of claims by third parties based on the infringement of such rights upon first request.
11.3 Clauses 10.1 and 10.2 are not applicable in as far as the supplier has produced the goods in accordance with designs, drawings, models or similar descriptions or specifications which he has received from us and could not recognize that the products developed by him would violate any protective rights.
11.4 The contractual parties commit to keep each other informed without delay after risks of infringement or alleged infringements of protective rights become known, in order to antagonize any liability claims.
12. Production of the Goods, Audit
12.1 The supplier guarantees that he will lay out the production process of the goods – amongst others through a careful selection and supervision of the staff – in such a way that the possibility of even an unintentional deviation of the actual quality from the quality contractually stipulated is excluded in the frame of his duty of diligence.
12.2 During regular operating hours in the production facilities of the supplier we are entitled to have performed by persons commissioned by us controls of the goods designated for us with regard to the observance of the contractual obligations in the frame of the manufacturing of goods.
12.3 The supplier agrees to the regular performance of supplier audits by experts commissioned by us. The subject of supplier audits comprises all circumstances relevant for the supplier relation. The costs incurred in this connection shall be borne by the supplier.
12.4 To the extent that the supplier receives indications in connection with the goods – irrespective of the grounds – that lead to doubts with regard to their marketability, he is obliged to bring about an immediate complete clarification and inform us forthwith. In case the supplier is not also the producer, he shall guarantee the transfer and observance of this obligation to his pre-suppliers down to the manufacturer.
13. Product Liability, Liability Insurance
13.1 In as far as the supplier is responsible for a product damage, the reason for which is within his domain and organizational area and for which he himself is liable in external relationships, he shall hold us harmless from claims for damages of third parties upon first request. Our other legal claims remain unaffected.
13.2 Under the same conditions the supplier shall also be liable for expenditures incurred by us due to provisional measures against an assertion of claims in the frame of product liability (e.g. by recall measures). Concerning contents and scope of recall measures to be performed we shall inform the supplier – as far as possible and acceptable – and shall give him the opportunity to submit a comment.
13.3 The supplier commits to take out an insurance with an appropriate coverage against the risks in connection with the product liability for the goods supplied by him and to prove this insurance to us in an adequate form upon request. A limitation of the insurance coverage is subject to our approval. In case we are due further claims for damages, these shall remain unaffected.
14. Supplier Recourse
14.1 In case we are obliged – in the frame of a supply chain at the end of which there is the consumer – to procure compensation to our customer as the consumer has returned an item newly produced by the supplier as a consequence of its faultiness or as he has reduced the purchase price, there is no need for the stipulation of a time limit for the rights due to us in accordance with clause 9 of these purchase conditions.
14.2 Clause 13.1 shall also be applicable to items for the production of which we have utilized components of the supplier as well as to cases in which we supply a consumer directly.
14.3 In the cases covered by clause 13.1 and 13.2 we are entitled to claim compensation for the expenditures incurred by us due to non-fulfillment of our customer’s orders (in particular transport costs, traveling expenses, labor and material costs) in case the default was already existing before the passing of the risk to us.
14.4 The claim under clause 13.3 is subject to a time limit of two (2) years after transfer of the item to us by the supplier. The time limit for claims under clause 9 and clause 13.3 shall expire at the earliest two (2) months after the date on which we have to fulfill the claims of our customer, however at the latest five (5) years after transfer of the item to us by the supplier.
15.1 The supplier commits to keep all pictures, drawings, calculations and other not generally obvious documents and information made available to him strictly confidential and not to use them for his own purposes or the purposes of third parties.
15.2 The confidentiality obligations remain valid also beyond the contract duration.
16. Final Provisions
16.1 For all litigations resulting from the contractual relationship the place of jurisdiction shall be our company`s domicile at Kalletal-Kalldorf, if the supplier is a businessman, a legal person under public law or a public special fund. We also have the right to sue the supplier at his corporate domicile.
16.2 The place of fulfillment is the place of delivery agreed upon unless otherwise stipulated in the order.
16.3 The applicable law shall be the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).