General Terms and Conditions of Purchase (GTCP)
§ 1 General, scope of application
(1) These General Terms and Conditions of Purchase (hereinafter also referred to as “GPC”) shall apply to all business relationships with our business partners and suppliers (“Seller”). The GPC shall only apply if the Seller is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
(2) The GPC apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GPC in the version valid at the time of the Buyer’s order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
(3) These GPC shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of the Seller shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if we accept the Seller’s deliveries without reservation in the knowledge of the Seller’s General Terms and Conditions.
(4) Individual agreements made with the Seller in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GPC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications by the Seller in relation to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax).
(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.
§ 2 Conclusion of contract
(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The Seller shall notify us of obvious errors (e.g. typing and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.
(2) The Seller is obliged to deliver our order as soon as possible. For capital goods this is expected to be a period of 1-2 months, for consumables a period of up to 2 weeks.
For both product segments, we expect to receive order confirmations before we receive the goods.
(3) Delayed acceptance shall be deemed a new offer and requires acceptance by us.
§ 3 Delivery period and delay in delivery
(1) The delivery time specified by us in the order is binding. The seller is obliged to inform us immediately in writing if he is unlikely to be able to meet agreed delivery times – for whatever reason.
(2) If the Seller fails to perform or fails to perform within the agreed delivery period or is in default, our rights – in particular to rescission and damages – shall be determined in accordance with the statutory provisions. The provisions in paragraph 3 remain unaffected.
(3) If the Seller is in default, we may – in addition to further statutory claims – demand lump-sum compensation for our damage caused by default in the amount of 1% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods delivered late. We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage at all or only significantly less damage has been incurred.
§ 4 Delivery, transfer of risk, default of acceptance
(1) The Seller shall bear the procurement risk for its services, unless otherwise agreed in individual cases (e.g. limitation to stock).
(2) Delivery within Germany shall be “free domicile” to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, delivery shall be made to our registered office in 95032 Hof. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to be performed at the creditor’s domicile).
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk.
(4) The statutory provisions shall apply to the occurrence of our default of acceptance. If the contract relates to a non-fungible item to be manufactured by the Seller (individual production), the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
§ 5 Prices and terms of payment
(1) The price stated in the order is binding. All prices are exclusive of statutory value added tax, unless this is shown separately.
(2) The agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller shall grant us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.
(3) We do not owe any interest on arrears. The statutory provisions shall apply to default of payment.
(4) We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent permitted by law. In particular, we shall be entitled to withhold due payments as long as we are still entitled to claims against the Seller arising from incomplete or defective services.
(5) The Seller shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims.
§ 6 Reservation of title
(1) The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. However, if in individual cases we accept an offer of the seller to transfer ownership conditional on payment of the purchase price, the seller’s retention of title shall expire at the latest upon payment of the purchase price for the delivered goods.
(2) We shall remain authorized to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the resulting claim. This excludes all other forms of retention of title, in particular the extended retention of title, the forwarded retention of title and the retention of title extended to further processing.
§ 7 Defective delivery
(1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the Seller, unless otherwise specified below.
(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality upon transfer of risk to us. In any case, those product descriptions which – in particular by designation or reference in our order – are the subject of the respective contract or have been included in the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, the seller or the manufacturer.
(3) We are not obliged to inspect the goods or make special inquiries about any defects upon conclusion of the contract. In partial deviation from § 442 para. 1 sentence 2 BGB, we are therefore entitled to
BGB, we are therefore entitled to claims for defects without restriction even if the defect remained unknown to us upon conclusion of the contract due to gross negligence.
(4) The statutory provisions (Sections 377, 381 HGB) shall apply to the commercial obligation to inspect and give notice of defects with the following proviso: Our obligation to inspect shall be limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, incorrect and short delivery) or which are recognizable during our quality control in the random sampling procedure. If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Notwithstanding our duty to inspect, our complaint (notification of defects) shall in any case be deemed to be immediate and timely if it is sent within 5 working days of discovery or, in the case of obvious defects, of delivery.
(5) Subsequent performance shall also include the removal of the defective goods and reinstallation, provided that the goods have been installed in another item or attached to another item in accordance with their nature and intended use. The Seller shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy defects shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.
(6) Notwithstanding our statutory rights and the provisions in para. 5, the following shall apply: If the Seller does not fulfill its obligation to provide subsequent performance – at our discretion by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery) – within a reasonable period set by us, we may remedy the defect ourselves and demand compensation from the Seller for the expenses required for this or a corresponding advance payment. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances immediately, if possible in advance.
(7) Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.
§ 8 Supplier recourse
(1) We shall be entitled to our statutory rights of recourse within a supply chain (supplier recourse pursuant to Sections 445a, 445b, 478 BGB) without restriction in addition to the claims for defects. In particular, we are entitled to demand exactly the type of subsequent performance (rectification or replacement delivery) from the Seller that we owe to our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) is not restricted by this.
(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 445a para. 1, 439 para. 2 and 3 BGB), we shall notify the Seller and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Seller shall have the burden of proof to the contrary.
(3) Our claims arising from supplier recourse shall also apply if the defective goods have been further processed by us or another entrepreneur, e.g. by installation in another product.
§ 9 Producer liability
(1) If the Seller is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause lies within its sphere of control and organization and it is liable itself in relation to third parties.
(2) Within the scope of his obligation to indemnify, the Seller shall reimburse expenses pursuant to Sections 683, 670 BGB arising from or in connection with claims asserted by third parties, including product recalls carried out by us. We shall inform the Seller of the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment. Further legal claims remain unaffected.
(3) The Seller shall take out and maintain product liability insurance with a lump sum cover of at least EUR 10 million per personal injury/property damage.
§ 10 Statute of limitations
(1) The reciprocal claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.
(2) Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims for defects shall be 3 years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall also apply accordingly to claims arising from defects of title, whereby the statutory limitation period for third-party claims in rem for restitution (§ 438 para. 1 no. 1 BGB) shall remain unaffected; claims arising from defects of title shall in no case become time-barred as long as the third party can still assert the right – in particular in the absence of a limitation period – against us.
(3) The limitation periods of the law on sales, including the above extension, shall apply – to the extent permitted by law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period shall apply, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
§ 11 Choice of law and place of jurisdiction
(1) These GTCP and the contractual relationship between us and the Seller shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in 95032 Hof. The same applies if the seller is an entrepreneur within the meaning of § 14 BGB. However, in all cases we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GPC or an overriding individual agreement or at the Seller’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.