The conditions stated below shall apply to all agreements made between the Supplier and us for the delivery of goods. They shall also apply to all future business relations even if such are not agreed once more expressly. Diverging conditions of the Supplier that we do not accept explicitly, are non-binding to us even if we do not oppose to such conditions expressly. These conditions shall even apply if we accept delivery without any reservation having knowledge of such contradicting conditions or such that are diverging from our conditions.
All agreements that are made are laid down in the contracts, in these conditions, and in the offers in writing. Separate agreements made between the parties to the contract in writing (including collateral agreements, supplements and amendments) shall have priority to these business conditions in any case.
II. Purchase order and acceptance
Only written purchase orders and agreements shall be binding. Oral collateral agreements or undertakings should be confirmed in writing.
The Supplier should confirm our purchase order(s) within five (5) working days in form of confirming the order in writing, or by opposing to it within the said period. Otherwise, the purchase order(s) shall be deemed as accepted.
III. Delivery dates and taking delivery
Agreed delivery dates are binding. Early deliveries or partial deliveries are admissible only upon agreement. The delivery date is deemed to have been met on the date the delivery arrives at the place of destination. As soon as the Supplier becomes aware of that he shall not be able to perform his delivery and/or service (hereinafter jointly referred to as delivery) - in full or in part - on time, he should inform us about this immediately by stating the reasons for and the expected duration of such delay. We shall then be entitled to withdraw from the agreement even before the agreed delivery deadline has expired, if it is foreseeable that the Supplier shall not be able to keep the deadline even if we consider the reasonable grace period, which we have set, or (without considering a grace period) if we do not need the goods any more after the delivery deadline has expired respectively. In case of delay in delivery, we shall be entitled to charge 0.5 % penalty for each completed week of such delay, however, maximum 5 % of the total price of the delivery. Further going rights shall remain unaffected from this. The Supplier is at liberty to prove a smaller damage than the one of such penalty. The Supplier is entitled to make excess or short deliveries or partial deliveries only after we have given our written consent to such.
IV. Verifying the production
We reserve the right to check the delivery during the production at the Supplier’s premises on quality, dimensional accuracy, and on the agreed condition.
The delivery should be made DDP (INCOTERMS 2010) to the address for delivery stated in the purchase order. Otherwise, the Supplier should bear any costs arising as result of any rearrangement and be responsible for the damage that we may incur due to the delay. If we should bear the freight costs, the Supplier should use the type of shipment that we have chosen or the type of transport most favourable to us. The Supplier shall take out a transport insurance policy with sufficient coverage at his own expense.
A consignment note and a delivery note should be included with every delivery. All the details stated in the purchase order like for instance the number and the date of the purchase order, our item number, the number of pieces or the quantity, and the description of the delivered items should be included on the delivery note. The Supplier is deemed to have fulfilled his obligation to deliver first when the proper delivery and shipment documents have arrived at the place of destination. Until then, we shall be entitled to store the delivery at the Supplier’s expense and risk.
The quantities and weights that we have established on arrival shall be decisive for all deliveries.
VI. Passing of risk
The risk shall pass to us when the delivery has been handed over at the place of destination properly or (insofar as taking delivery has been agreed or is provided by law) if we have taken the delivery. This shall even apply if we commission our own haulage firms.
VII. Packaging and shipment
You should pack the deliverables weatherproof and designed for transport, or such deliverables should be provided with special packaging according our instructions at request. The Supplier shall be liable for damages due to defective packaging material. The packaging material shall be returned not prepaid at the Supplier’s expense.
VIII. Prices, invoice, payment
The agreed prices are fixed prices net off commission including packaging and are free to the place of destination. We shall not accept any further ancillary costs. In case we place an order without stating a price or a guide price, we shall reserve the right to approve the price after we have received the confirmation.
You should address the invoice to the address printed on the purchase order. Our order details should appear on the invoice.
Payment shall be made by bank transfer or by cheque within fourteen (14) days with 3 % discount or within thirty (30) days net off commission after we have received an invoice in each case and after the goods have arrived as agreed in the agreement, after we have received a proper and verifiable invoice. We shall be in default in payment first by written reminder following the expiration of a set deadline.
In case a defect is present, we shall be entitled to retain the payment in proportion to its value until the defect has been remedied properly. We shall be entitled to full extent to the rights of offset and of retention. We shall be entitled to assign any claim under the agreement without requiring the Supplier’s consent. The Supplier shall not be entitled to assign anyclaim from the contractual relationship to a third party without our prior written consent.
IX. Liability for material defects
The Supplier warrants that the delivery item shall be free from defects of title or material defects on handing over to or on acceptance by us, and that it complies with the recognised state of the art, with the relevant laws, safety and accident prevention regulations, as well as with the normal and technical quality assurance standards (e.g. DIN, VDE, VDI, and the former BG guidelines) in the recipient country. In case such standards are designed differently, the German version shall have priority.
We shall check the goods on obvious defects, identity, shortages, as well as on transport damages on arrival. There is no further going duty to examine the goods. We shall notify the Supplier of any defects immediately after we have identified them. The notification of obvious defects shall be deemed as made on time if we post it within five (5) working days following the arrival of the goods and if it arrives with the Supplier afterwards. The notification of hidden defects shall be deemed as made on time if we post it within five (5) working days following their identification and if it arrives with the Supplier afterwards. As far as this is concerned, the Supplier shall waive to object to a belated notification of a defect. An excess delivery does not need to be notified.
In case of defects, we may at our option request additional delivery of the defective goods instead of rectification. In urgent cases, we shall be entitled to remove the defects by ourselves or have such defects removed by a third party on agreement with the Supplier and at the Supplier’s expense. The same shall apply if the Supplier has not met his obligations for subsequent performance after we have set a reasonable period for such performance, unless he is not responsible for such nonperformance.
The Supplier shall bear all expenses for the purpose of rectification or for replacement deliveries at the respective place of use of the goods. We shall communicate the place use to the Supplier on request.
We shall be entitled to withdraw from the agreement if there is a considerable defect, and if the Supplier fails to provide the subsequent performance or if he fails to provide it in due time. There is no deadline for declaring such withdrawal. In case of a framework order, we may cancel the entire (not yet delivered) order in the event of defects occurring repeatedly.
The statutory period of limitation for claims based on defects is at least thirty-six (36) months from delivery or (if agreed) from taking delivery.
If delivered items are repaired or replaced after a defect has been notified, the period of limitation shall start new for such parts, unless it is about an insignificant expense on subsequent performance or a performance at the Supplier’s expense.
In the event that a claim is put on us by a customer or by any other third party for product liability, the Supplier shall be obliged, to hold us harmless of any such claim at first written request, if and to the extent that the damage has been caused or partly caused by a fault of the product delivered by the Supplier. However, in cases of fault-based liability this shall only apply if the Supplier cannot prove that he is not responsible for the damage. If the Supplier is responsible for the cause of the damage, the proof of causality of the fault for the damage shall be sufficient. As for the rest, the burden of proof shall be on the Supplier.
In any case, the Supplier shall take over the costs and expenses that are equal to his share in the cause/fault including the costs of possible prosecution or of a recall. This shall even apply to apparent or threatening serial faults.
The Supplier is committed to cover his liability risk by insurance and to prove to us the reasonable cover at request.
The Supplier shall be responsible for damages that result from a failure to comply with these provisions. As for the rest, he shall even be liable for any negligent conduct of his employees or agents. The Supplier shall be responsible within the framework of any damages to reimburse us even for the reasonable costs of bringing an action including the lawyer’s charges that we may incur.
XI. Provided materials, disclosed information, and manufacturing equipment
The Supplier should check all information disclosed and materials provided to him for performing the service on completeness, correctness, and suitability for the intended purpose. The Supplier undertakes to keep confidential to third parties any details about our purchase orders, like for instance the number of pieces, technical designs, conditions etc. as well as business and trade secrets, which he has received from us on the occasion of the business relationship.
Provided materials and manufacturing equipment shall remain our property. Manufacturing equipment that has been produced on our behalf and that we have paid shall become our property upon complete payment. The transfer of ownership is replaced in such a way that the Supplier shall look after those items for us with the diligence of a prudent businessman free of charge. The Supplier shall keep those items that are our property separately from other items that are not our property, and he shall insure them sufficiently against fire, water, and theft by means of housebreaking at his expense.
Our property should be identified on the items and in the account books. The Supplier should return all provided materials, embodied information and manufacturing equipment at request upon termination of the business relationship at his expense. The Supplier shall neither use such materials or information for his own purposes nor disclose them to any third party. The Supplier shall neither use himself nor offer or deliver to any third party products, which have been manufactured according to documents that we have prepared (like drawings, models and such the like) or according to our confidential information or with our manufacturing equipment.
XII. Third-party industrial property rights
The Supplier guarantees that no third-party industrial property rights, like for instance patent rights or utility models, other rights or business or trade secrets, shall be violated by using our delivery, which includes the country where they are used too. As far as this is concerned, he should hold us harmless of any possible third-party claims at first written request. However, in cases of fault-based liability this shall only apply if the Supplier cannot prove that he is not responsible for the damage. There is no obligation as to guarantee if the Supplier manufactures parts exclusively according to our drawings or other specifications, and if he does not or cannot know that third-party industrial property rights are violated by this.
The place of destination that we have stated shall be the place of performance for all deliveries.
The court competent for our company’s head office shall be the place of jurisdiction. However, we shall be entitled to bring a case before the court competent for the Supplier’s place of business.
The contractual relationship is governed by the law of the Federal Republic of Germany by excluding all international and supranational law of contract systems, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).