Status: August 2014
Art. 1 Scope
- These Terms and Conditions of Purchase shall apply only to companies within the meaning of Art. 310 para. 1 of the German Civil Code (BGB).
- If both Parties use conflicting general terms and conditions, in particular, such terms and conditions with protective clauses, then the respective general terms and conditions shall only become an integral of the contract insofar as they are consistent with each other. Any conflicting clauses and supplementary provisions to the clauses of the other Party shall, however, not be included in the contract. Instead of such clauses or provisions, the statutory regulation shall then apply.
- These Terms and Conditions of Purchase shall also apply to any and all future transactions with the Contractor, as far as similar transactions are concerned.
- The Contractor is obliged to specify the Client's purchase order number in all shipping documents and delivery notes. If the Contractor fails to do so, then the Client shall not be responsible for any delays in processing.
Art. 2 Conclusion of the Contract / Order Confirmation / Execution / Termination
- Purchase orders shall only be binding if they are placed in writing by the Client. Any verbal agreements – including any subsequent amendments of and supplements to these Terms and Conditions of Purchase – shall be subject to the written confirmation of the Client to be effective.
- For the period of their validity, estimates of costs shall be a binding basis for purchase orders resulting therefrom.
They shall not be remunerated.
- The Contractor shall be obliged to confirm the purchase order within two weeks after receipt.
- The Contractor shall be obliged to specify any possible subcontractors. Only one subcontractor level shall be permissible. Contractual claims may not be assigned to any third parties.
- The Client shall reserve the right to terminate the contract in whole or in part. The Contractor shall be entitled to receive the remuneration for the performances which have been provided and checked until that date. Furthermore, the Client shall be entitled to withdraw from the contract if judicial insolvency proceedings have been instituted against the Contractor. The Client shall be informed about any institution of such proceedings.
Art. 3 Quality
- The Contractor shall establish and maintain a documented quality assurance system which will be suitable in type and scope and be in compliance with the state-of-the-art. The Contractor shall prepare records of its quality inspections and make them available to the Client upon request. The Contractor shall give its consent to quality audits for assessing the effectiveness of its quality assurance system by the Client or by an agent of the Client.
Art. 4 Documents Made Available / Confidentiality
- The Client shall reserve any property rights and copyrights pertaining to all documents made available to the Contractor in connection with the purchase order, such as computations / calculations, drawings, etc. The Contractor undertakes not to disclose or to make accessible any such documents to third parties, unless the Client gives its explicit and written approval to the Contractor to do so. Such documents shall be used exclusively for manufacturing purposes due to the Client's purchase order. The documents shall be returned to the Client without delay if the purchase order is not accepted by the Contractor. If the Client's purchase order is accepted, the documents shall be returned to the Client not later than upon completion of the purchase order, without being requested to do so.
- The obligation to maintain secrecy shall also apply after completion of this contract. The obligation shall expire if and as far as the manufacturing know-how incorporated in the images, drawings, computations, and other documents, which have been made available, has become generally known.
Art. 5 Considerations and Terms of Payment
- The price agreed due to the submission of the quotation and the acceptance of the quotation by the Client shall be binding. Any return of the packaging shall be subject to a special agreement.
- The legal value-added tax shall not be included in the price. Any payment of the consideration shall be subject to the receipt of an auditable invoice in accordance with the Client's specifications indicated in the purchase order.
In particular, the Contractor shall be obliged to specify the purchase order number indicated in the purchase order; the Contractor shall be liable for all consequences resulting from any nonobservance of this obligation, unless the Contractor does not provide evidence that the Contractor is not to be held responsible to that end.
- Unless otherwise agreed, the consideration shall be payable with 2 % cash discount within 14 days upon delivery and receipt of the invoice or net within 30 days after receipt of the invoice.
Art. 6 Right of Offset and Right of Retention
- The Client shall be entitled to the right of offset and the right of retention within the scope permitted by law.
Art. 7 Periods of Delivery
- The delivery times /periods of delivery specified in the purchase order shall be binding.
- If any delay in delivery is foreseeable, the Contractor shall be obliged to advise the Client on such a delay and to outline appropriate remedial measures.
- If the Contractor is in default, the Client shall be entitled to assert statutory claims and, in particular, to claim damages instead of performances and to withdraw from the contract, after fruitless expiration of a reasonable limit of time. If the Client claims damages, the Contractor shall have the right to provide evidence that the Contractor is not responsible for a breach of duty.
Art. 8 Passage of Risk
- The delivery shall be made according to Incoterms (latest version) as specified in the purchase order.
Art. 9 Retention of Title
- If parts are provided to the Contractor by the Client, the Client shall retain ownership of such parts. Any processing and reshaping shall be carried out by the Contractor for Client. If the goods of the Client, which are subject to retention of title, are processed with items not belonging to the Client, then the Contractor shall acquire co-ownership in the new object in proportion of the value of the object (purchase price plus value-added tax) to the other items processed at the time of processing.
- If the goods provided by the Client are connected or inseparably mixed with items not belonging to the Client, then the Client shall acquire co-ownership in the new object in proportion to the value of the goods subject to retention of title (purchase price plus value-added tax) to the other items, which have been connected or mixed, at the time when they were connected or mixed. If the goods are connected or mixed in such a way that the items of the Contractor are to be regarded as the main product, then it shall be deemed agreed that the Contractor transfers proportionate co-ownership to the Client; the Contractor shall preserve the sole ownership or coownership for the Client.
- The Client shall retain ownership in any tools; the Contractor shall be obliged to use the tools only for manufacturing the goods ordered by the Client. The Contractor shall be obliged to insure the tools belonging to the Client at replacement value at the Contractor's expense against any damage by fire, water, and theft. The Contractor shall be obliged to carry out in time, at the Contractor's expense, any possibly required maintenance and inspection works, as well as all repair and remedial maintenance works in connection with tools. The Contractor shall inform the Client without delay about any malfunctions; if the Contractor culpably fails to do so, then any claims for damages shall remain unaffected.
Art. 10 Warranty and Notification of Defects
- The Client shall be obliged to inspect the goods within an appropriate period of time with regard to any quality and quantity variances. Any notification of defects shall be submitted in time to the Contractor, within a period of 7 working days, calculated from the receipt of goods, or in the case of hidden defects within a period of 7 working days after detection.
- The Client shall be entitled to assert statutory claims for defects in full. The Client shall in any case at its discretion be entitled to request either remedy of defects or delivery of a new product at no extra costs from the Contractor. The right to claim damages, in particular, the right to claim damages instead of performances shall explicitly be reserved.
- Claims for defects – for whatever legal reason – shall be time-barred 36 months after delivery / acceptance has been made. Any longer periods of limitation shall remain unaffected thereby. Defects shall be remedied by the Contractor at no extra costs. If defects are not remedied in time, the Client shall be entitled to arrange the defect to be remedied at the expense of the Contractor.
- In case of any contracts for services, in particular, in case of any contracts for construction work, the Client shall reserve the right to request that a warranty bond is provided in the amount of 5% of the contract value for the warranty period agreed upon. Any request to provide a warranty bond on first demand shall be excluded.
Art. 11 Proprietary Rights
- Any delivery and its utilisation must not violate any proprietary rights of third parties in the Federal Republic of Germany. The Client shall inform the Contractor about any claims asserted by third parties. The Client shall not acknowledge any such claims on its own behalf. In this respect, the Client shall authorise the Contractor to resolve any dispute with third parties in judicial or extrajudicial proceedings.
- In the event of any culpable violation of proprietary rights of third parties, the Contractor shall fend off any thirdparty claims at its own expense, which have been asserted by third parties against the Client on account of a violation of proprietary rights due to any deliveries and performances made by the Contractor. The Contractor shall indemnify and hold harmless the Client against any and all claims arising from the utilisation of such proprietary rights, insofar as the Contractor is responsible to that end.
- If a utilisation of a delivery on the part of the Client is impaired due to any existing proprietary rights of third parties, then the Contractor shall either acquire the respective licence or change or replace the parts of the delivery concerned in such a way that the utilisation of the delivery no longer violates any proprietary rights of third parties and that they are at the same time in compliance with contractual agreements.
Art. 12 Product Liability / Liability Insurance Coverage
- As far as the Contractor is responsible for any product damage, the Contractor shall be obliged to indemnify and hold harmless the Client against any claims for damages of third parties on first demand, to the extent that the cause lies in the Contractor's spheres of control and organisation and the Contractor itself is liable in relation to third parties.
- Within this framework, the Contractor shall also be obliged to reimburse any expenses incurred as a result of or in connection with a recall action which has been carried out by the Client. The Client shall inform the Contractor about the content and scope of the recall actions to be carried out – as far as possible and reasonable – and give the Contractor the opportunity to comment. Any other statutory claims shall remain unaffected thereby.
- The Contractor undertakes to maintain a product liability insurance with an appropriate insured sum per personal injury / damage to property – on a lump-sum basis. If the Client is entitled to any further claims for damages, they shall remain unaffected. The Contractor shall forward a copy of the valid insurance policy, upon request.
Art. 13 Code of Conduct
- In dealing with its employees the Client expects that basic employment rights and the respectively applicable national law will be observed by Contractor.
- The Contractor undertakes to ensure that any kind of child labour is prohibited in its company and that the Contractor refrains from any child labour.
- The Contractor undertakes to ensure that any kind of forced labour is prohibited in its companies and plants.
- The Client expects that the respectively applicable national law relating to health protection and occupational health and safety are observed by the Contractor. In addition, the Client expects that an appropriate occupational health and safety management will be established and used by the Contractor.
- The Contractor shall observe the respectively applicable national environmental laws, regulations, and standards. In addition, the Client expects that an appropriate environmental management system will be established and used by the Contractor.
- No corruption shall be tolerated. The Contractor shall be responsible for the observance of the conventions of the United Nations (UN) and of the Organisation for Economic Cooperation and Development (OECD) for fighting corruption, as well as of the relevant anti-corruption laws.
- The Contractor is expected to behave fairly in terms of competition and to observe the applicable anti trust laws. Contractors shall neither be involved in any verbal agreements with competitors, which conflict with anti-trust laws, nor abuse their possibly existing dominant position in the market.
- The Contractors shall encourage their sub-contractors and suppliers to observe the standards described with regard to human rights, labour conditions, prevention of corruption, and environmental protection within the framework of performance of their contractual obligations.
Art. 14 Place of Performance, Place of Jurisdiction, and Applicable Law
- All agreements, which are concluded between the Parties for the purpose of executing a purchase order, have been set forth accordingly in the contract and these contractual terms. Any verbal additional agreements do not exist. Any supplements to or amendments of this contract, including this written form clause – shall be subject to the written form.
- Place of performance is Duisburg, unless otherwise provided in the purchase order.
- Exclusive place of jurisdiction for all disputes arising from this contract is the competent court at the registered office of the Client. The Client shall, however, also be entitled to bring an action against the Contractor at the place of jurisdiction of the registered office of the Contractor.
- The law of the Federal Republic of Germany shall apply, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
- Should one or more provisions of these contractual terms or contractual clauses be or become ineffective as a whole or partially or should there be gaps in the contract, then the effectiveness of the remaining provisions and clauses shall not be affected thereby. The Parties undertake to substitute the clause being ineffective by another clause which will come as close as possible to the economic purpose of the regulation being ineffective or the missing regulation, which will be effective.
Art. 15 REACH Clause
- The Contractor must meet all requirements and measures resulting from the REACH Regulation for all substances, preparations, and products delivered to the Client / listed in the Regulation.