General Terms and Conditions of Purchase
§ 1 General Matters, Scope of Applicability
(1) These General Terms and Conditions of Purchase apply to all business relationships with our business partners and suppliers (hereinafter, “Sellers”), insofar as, pursuant to Section 310, para. 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the Seller is an entrepreneur (Unternehmer) (Section 14 BGB), a legal person under public law (juristische Person des öffentlichen Rechts), or a special fund under public law (öffentlich-rechtliches Sondervermögen).
(2) These General Terms and Conditions of Purchase apply in particular to contracts for the sale and/or delivery of moveable proper- ty (hereinafter, “Goods”), irrespective of whether the Seller manufactures the Goods itself or acquires same from suppliers (Sections 433, 651 BGB). The General Terms and Conditions of Purchase, in the version currently in effect, apply as a framework agreement that also covers future contracts entered into with the same Seller for the sale and/or delivery of moveable property, obviating the need for us to make reference to them in each individual instance.
(3) Our General Terms and Conditions of Purchase apply exclusively. General terms and conditions of the Seller that deviate from, stand in opposition to, or supplement our General Terms and Conditions of Purchase may be made part of the contract with the Seller only and insofar as we have given our express written consent to their applicability. This requirement of consent applies in every instance, including in particular where, despite our awareness of the Seller’s general terms and conditions, we accept deliveries from it without reservation.
(4) Legally relevant declarations and notices that the Seller is required to make or provide to us following conclusion of contract (e.g. setting of deadlines, payment default notices, declaration of rescission) must be given in writing in order to be effective.
(5) If reference is made to the applicability of statutory provisions, this has merely a clarifying significance. For this reason, even absent such clarification, statutory provisions are applicable unless modified or expressly precluded by these General Terms and Conditions of Purchase.
§ 2 Conclusion of Contract
(1) All of our orders are non-binding and subject to confirmation, unless they are expressly designated as binding or set forth a specific deadline for acceptance.
(2) We reserve our rights of ownership and copyrights in and to all drawings, images, calculations, brochures, catalogues, models, tools, and other documents and resources. The Seller may not, without our express consent, make such materials available to third parties, nor may it disclose same or use or copy same, either itself or through third parties and either as such or with respect to the contents thereof. If the Seller no longer requires such materials in the normal course of its business, or if negotiations do not lead to the conclusion of a contract, the Seller must, at our request, return all such materials to us and, if applicable, destroy all copies thereof.
(3) The foregoing provision applies mutatis mutandis to other items (e.g. software, finished products, semi-finished products), as well as to tools, templates, samples, and other objects, that we provide to the Seller for the purposes of manufacturing. To the extent they are not processed, such objects must be held in separate safekeeping at the expense of the Seller and insured to the customary extent against destruction and loss.
(4) Our order cannot be considered binding until it has been submitted or confirmed in writing. In the event the order, including order documentation, contains obvious errors (e.g. mathematical or spelling mistakes) or is incomplete, the Seller must make us aware of this fact prior to acceptance so that the order to be corrected or made complete; otherwise, the contract is deemed not concluded.
(5) The Seller is required to confirm our order in writing within five business days or carry it out without reservation by such deadline, in particular, through dispatch of the Goods (acceptance). Untimely acceptance constitutes a new offer by the Seller, which requires acceptance by us.
(6) The legal relationships between us and the Seller are governed exclusively by a written, executed purchase contract, which in- cludes these General Terms and Conditions of Purchase. The purchase contract sets forth in full all agreements between the parties with regard to the subject of the contract. The purchase of certain products and product types covers, on account of their nature and quality, also the provision of additional documentation (e.g. data sheets, safety data sheets, laboratory reports, and/or inspection certificates in the area of the chemicals industry). Oral commitments made by us prior to conclusion of this contract are not legally binding, and oral agreements between the parties are deemed to have been superseded by the written contract, unless it is expressly apparent from them that they are to continue to have binding effect.
(7) To the extent that we provide technical information or act in an advisory capacity, and such information or advice does not form part of the contractually agreed scope of services that we are obligated to render, same is provided at no charge and under exclusion of all liability.
(8) Individual arrangements made with the Seller in specific cases (including side agreements, additions, and amendments) always have priority over these General Terms and Conditions of Purchase. The content of such arrangements is subject to a written contract or our written confirmation.
(9) With the exception of general managers and/or Prokuristen (i.e. holders of a general commercial power of attorney), our emp- loyees are not authorised to enter into oral agreements that deviate from the purchase contract.
(10) The requirement of written form is satisfied with transmission by fax; electronic transmission, particularly by email, is not sufficient.
§ 3 Prices and Payment Terms
(1) The price stipulated in the order is binding. All prices are net of applicable value-added tax.
(2) Prices agreed to in confirmed orders (order confirmations) are binding and are not subject to any price fluctuations whatsoever.
(3) Unless a different arrangement was agreed upon in a particular case, the price includes all services and related efforts by the Seller (e.g. assembly, installation), as well as all ancillary costs (e.g. proper packaging and transport costs, including possible trans- port and liability insurance). The Seller must take back all packaging materials when we so require.
(4) The agreed price is payable not later than 30 calendar days following complete delivery and contractual performance (including any agreed acceptance inspection) and receipt by us of a proper invoice. Our payment obligations are deemed satisfied in timely fa- shion by submission to our bank of our order for payment by bank transfer. The parties may on a case-by-case basis agree informally on an early-payment discount on the net amount of the invoice.
(5) All order confirmations, delivery documents, and invoices must set forth our order number, the article number, delivery amount, and delivery address. Should one or more of these indications be missing, resulting in a delay in processing by us in connection with our normal day-to-day business, the payment deadlines stipulated in paragraph (3) are extended by the period of the delay.
(6) We are not liable for late interest. The Seller’s claim to payment of default interest remains unaffected. Statutory provisions govern when we are deemed to be in default. In the event of default in payment, we owe default interest in the amount of five percentage points over the statutory base interest rate pursuant to Section 247 BGB. In any case, however, the Seller must give notice of default.
(7) We are entitled to rights of set off and retention, as well as to the defence of non-performance of the contract, to the extent provided by law. We are, in particular, entitled to retain payments due in cases where we have claims against the Seller for incomplete or defective performance of services.
(8) The Seller has a right of set off or retention only for legally adjudicated or uncontested counterclaims.
§ 4 Time of Delivery, Default in Delivery
(1) The delivery time stipulated by us in the order is binding. Early deliveries are not permitted. If the delivery time was not stipulated in the order, it is considered to be two weeks following conclusion of contract, unless agreed to otherwise. The Seller is obligated to give us prompt written notice if, for whatever reason, it anticipates that it will be unable to comply with agreed delivery times.
(2) The Seller is not entitled to make partial deliveries without our prior written consent.
(3) If the latest date on which delivery is to be made is determined on the basis of the contract, the Seller is deemed to be in default upon expiry of such date without our needing to send a corresponding notice of default. If the Seller fails to perform, fails to perform by the agreed delivery time, or is in default, then our rights – in particular, to rescission and damages – are determined in accordance with statutory provisions. The arrangements in paragraph (4) remain unaffected.
(4) If the Seller is in default, we are entitled to demand a contractual penalty in the amount of 1% of the net price per full calendar week, but not more than 5% of the net price of the Goods that have not been delivered on time. We are entitled to demand the contractual penalty over and above performance, with the former constituting damages owed by the Seller pursuant to statutory provisions; the assertion of greater damages remains unaffected. If we accept delayed delivery, we must assert the contractual penalty not later than upon final payment.
§ 5 Delivery, Transfer of Risk, Acceptance, Default in Acceptance
(1) Absent our prior written consent, the Seller is not entitled to have third parties undertake the contractual performance owed by it (e.g. by subcontractors). The Seller bears the procurement risk for its contractual performance, unless a one-off production is involved.
(2) Early deliveries are not permitted.
(3) Delivery is to take place within Germany, freight prepaid, to the location stipulated in the order. If the place of delivery has not been stipulated and no other agreement has been reached, then delivery is to be made to our place of business. For the purposes of debt collection, the respective place of delivery is also the place of performance.
(4) Delivery is to be accompanied by a delivery order specifying the date (consignment and shipping), contents of the delivery (article numbers and amounts), and our order identifier (date and number). If the delivery note is missing or incomplete, we are not responsible for resulting delays in processing or payment.
(5) Delivery of the Goods is deemed to have been made properly only if, depending on the nature and quality of the product or product type, the requisite additional documentation is attached (e.g. data sheets, safety data sheets, laboratory reports, and inspection certificates for chemical products).
(6) The risk of loss and deterioration of the Goods passes to us upon transfer at the place of performance. If an acceptance inspec- tion has been agreed upon, this is controlling with respect to transfer of risk. In addition, the statutory provisions of the law on goods delivered in exchange for payment (Werkvertragsrecht) apply analogously to an acceptance inspection. It is equivalent to transfer or acceptance if we are in default in acceptance.
(7) Statutory provisions govern when we are deemed to be in default in acceptance. The Seller must, however, expressly offer to give us contractual performance when a specific or specifiable calendar date has been agreed upon for action or cooperation on our part (e.g. provision of materials). If we are in default in acceptance, the Seller may demand compensation for its added efforts and expenses in accordance with statutory provisions (Section 304 BGB). If the contract relates to individualised goods to be manufac- tured by it (one-off production), the Seller is entitled to more extensive rights only if we agreed to an obligation of cooperation and are responsible for the failure of such cooperation.
§ 6 Defective Delivery
(1) Unless stipulated otherwise below, statutory provisions are applicable to our rights for material and legal defects in the Goods (including incorrect or incomplete delivery, as well as improper assembly and defective instructions regarding assembly, operation, or use) and to other breaches of duty by the Seller.
(2) The Seller is liable under statutory provisions, in particular, for the Goods having the agreed nature and quality upon transfer of risk to us. In particular, such product descriptions as form part of the respective contract – in particular, through their being designated or referred to in our order – or are included in the contract in the same manner as these General Terms and Conditions of Purchase are considered to constitute agreement as to nature and quality. In this regard, it makes no difference whether the product description originated from us, the Seller, or the manufacturer.
(3) In deviation from Section 442, para. 1, second sentence BGB, we are also entitled without limitation to claims for defects even where the fact that the defect remained unknown to us at the time of conclusion of contract was due to gross negligence.
(4) With regard to the duty to investigate and object, the provisions of Sections 377 and 381 of the German Commercial Code (Handelsgesetzbuch) apply with the following proviso: Our duty to investigate is limited to defects that come to light during external assessment as part of our incoming goods inspection, including review of delivery documentation, as well as during random-sample quality control (e.g. transport damages, incorrect or incomplete delivery). If an acceptance inspection has been agreed upon, there is no duty to investigate. Furthermore, the duty depends on the extent to which an investigation is feasible in the ordinary course of business given the circumstances of the particular case. Our duty to object to defects discovered at a later date remains unaf- fected. In any event, our objection (notice of defects) is considered to be prompt and timely if it was received by the Seller within 12 business days.
(5) We do not waive our warranty claims by way of acceptance or through approval of samples or specimens.
(6) The Seller bears the costs incurred with testing and repair, even if it turns out to be the case that there was in fact no defect. Our liability for damages due to an unjustified demand for elimination of defects remains unaffected. However, we are liable only if we recognised that no defect existed or if we were grossly negligent in failing to so recognise.
(7) If the Seller fails to comply with its obligation to cure – at our discretion, by eliminating the defect (repair) or by delivering defect- free goods (replacement delivery) – by a reasonable deadline set by us, then we may eliminate the defect ourselves and demand compensation from the Seller for the necessary expenses of this or require a corresponding advance payment. If the Seller’s cure fails, or if it is unreasonable for us to accept it (e.g. due to special urgency, risk to operational safety, or threat of unreasonable damage), a deadline need not be set; the Seller is to be informed of same without delay, where possible, in advance.
(8) In addition, in the event of material or legal defects, we are entitled under statutory provisions to reduce the purchase price or rescind the contract. Furthermore, we are entitled under statutory provisions to claim damages and expenses.
§ 7 Recourse to Suppliers
(1) In addition to claims for defects, we are entitled without limitation to our statutory claims to recourse within a supplier chain (recourse to suppliers pursuant to Sections 478-479 BGB). In particular, we are entitled to demand from the Seller the exact type of cure (repair or replacement delivery) that we owe to our customer in a given instance. Our statutory right of choice (Section 439, para. 1 BGB) is not limited by the foregoing.
(2) Prior to recognising or satisfying a claim for defects asserted by one of our customers (including compensation for expenses pursuant to Sections 478, para. 3, and 439, para. 2 BGB), we will so inform the Seller and, after briefly explaining the matter, request a written statement. If a statement is not given by a reasonable deadline, and if a mutual solution is not reached, then the claim for defects actually conceded by us is deemed owed to our customer; in this case, the Seller is obligated to prove the contrary.
(3) Our claims under recourse to suppliers apply also to situations where the Goods were subject to further processing, e.g. through inclusion in another product, prior to their being sold by us or one of our customers to a consumer.
§ 8 Product Liability
(1) If the Seller is responsible for product injuries, it must indemnify us against claims by third parties to the extent that the cause is rooted in its area of control and organisation and it itself is liable to third parties.
(2) In connection with its indemnification obligation, the Seller must, pursuant to Sections 683 and 670 BGB, reimburse expenses that result from or are related to our making use of a third party, including for recall actions undertaken by us. To the extent possible and reasonable, we will inform the Seller as to the content and scope of recall measures and give it an opportunity to make a state- ment. More extensive statutory claims remain unaffected.
(3) The Seller must obtain and maintain product liability insurance having a blanket coverage amount of at least EUR 5 million for each event of personal injury or property damage, whereby such insurance need not cover recall risk or criminal or other damages, unless agreed otherwise in a particular case. The Seller agrees to send us a copy of the insurance policy at any time upon request.
§ 9 Assignment
The Seller is not entitled to assign to third parties its claims under the contract. The foregoing does not apply to the extent that monetary claims are involved.
§ 10 Intellectual Property Rights
(1) The Seller warrants that its performance will not infringe upon any third-party intellectual property rights in countries of the European Union, North America, Asia, or other countries in which it manufactures products or has same manufactured.
(2) The Seller is obligated to indemnify us against claims asserted against us by third parties due infringement of industrial property rights set forth in paragraph (1) and to reimburse us for all necessary expenses incurred in connection with such claims. We are entitled to this claim irrespective of fault on the part of the Seller.
§ 11 Replacement Parts
(1) The Seller is obligated to maintain spare parts for the products delivered to us for a period of at least two years following delivery.
(2) If the Seller intends to discontinue producing spare parts for products delivered to us, it must inform us of this fact promptly following the decision to discontinue production. Subject to the provisions of paragraph (1), such decision must be made at least six months prior to discontinuation of production.
§ 12 Confidentiality
(1) For a period of five years following conclusion of contract, the Seller is obligated to maintain in confidence the terms of the order and all information and documentation provided for this purpose (other than publicly available information) and to use same only for carrying out the order. Following its having taken care of requests or processed orders, it must promptly return the foregoing to us upon request.
(2) Absent our prior written consent, the Seller may not make reference to the business relationship in its advertising materials, brochures, etc. and may not display or even depict items manufactured for us.
(3) The Seller must obligate its sub-suppliers in a manner corresponding to this Section 12.
§ 13 Retention of Title
(1) On our behalf, the Seller is to carry out the processing, mixing, or combining of provided objects. If following processing, mixing, or combining with third-party items, such third party continues to have a right of ownership, then we acquire co-ownership of the new item in the relation of the value of our provided item to that of the other items.
(2) Transfer of the Goods to us takes place unconditionally and without regard to payment of the price. In particular, all forms of expanded or extended retention of title are precluded, such that any retention of title that the Seller may have effectively declared is applicable only to, and until payment of, the Goods delivered to us.
§ 14 Prescription
(1) Unless stipulated otherwise below, the parties’ respective claims are prescribed in accordance with statutory provisions.
(2) In deviation from Section 438, para. 1, no. 3 BGB, the general prescription period for claims for defects is three years, beginning with transfer of risk. If an acceptance inspection has been agreed upon, the prescription period begins to run upon acceptance. The three-year prescription period applies analogously to legal defects, whereby the statutory prescription period for a third party’s in rem claims for return (Section 438, para. 1, no. 1 BGB) remains unaffected; furthermore, claims for legal defects are in no event prescribed as long as the third party may continue to assert the right against us, particularly when the latter is not prescribed.
(3) The prescription periods under the law of the sale of goods, including the aforementioned extension, apply to all contractual claims for defects to the extent provided by law. Insofar as we are also entitled to extra-contractual claims for damages due to a de- fect, the normal statutory prescription period (Sections 195 and 199 BGB) are applicable here, unless application of the prescription periods under the law of the sale of goods leads in an individual case to a longer prescription period.
(4) The prescription period for warranty claims stops running upon receipt by the Seller of our written notice of defects. With regard to replacement delivery and elimination of defects, the warranty period for replaced and repaired parts begins to run anew, unless we had to assume, based on the Seller’s conduct, that it did not feel obligated to take such action but rather undertook replacement delivery or elimination of defects as courtesy or for other reasons.
§ 15 Choice of Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany applies to these General Terms and Conditions of Purchase and to all legal rela- tionships between us and the Seller, under exclusion of international and supranational legal systems (governing contracts), in particular, the UN Convention on Contracts for the International Sale of Goods. The prerequisites for and effects of retention of title are subject to the law of the place where the goods are stored, provided that under such law, the choice of German law is impermissible or ineffective.
(2) If the Seller is a merchant within the meaning of the Commercial Code, a legal person under public law, or a special fund under public law, the sole place of jurisdiction – including internationally – for all disputes arising directly or indirectly out of the contractual relationship is our place of business where the respective company ist located. However, if the ordering party is a branch, from which location transactions are entered into directly, the sole place of jurisdiction in the place where our branch is located. However, we are also entitled to initiate legal proceedings at the place of performance for the delivery obligation.
Version: May 2011