§ 1 Scope of application, form
(1) These General Terms and Conditions of Purchase ("GTCP") apply to all business relationships with our business partners and suppliers ("Seller"). The GTCP only apply if the Seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTCP apply in particular to contracts for the sale and/or delivery of movable goods ("Products"), regardless of whether the Seller manufactures the Products itself or purchases them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTCP 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 to similar future contracts, without us having to refer to them again in each individual case.
(3) These GTCP apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Seller shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This consent requirement applies in any case, for example even if the Seller refers to his terms and conditions in the context of the order confirmation and we do not expressly object to this.
(4) Individual agreements (e.g. framework supply contracts, quality assurance agreements) and information in our order take precedence over the GTCP. In case of doubt, commercial clauses are to be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
(5) Legally relevant declarations and notifications of the Seller with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) must be submitted in writing. Written form within the meaning of these GTCP includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.
(6) References to the validity of statutory provisions have only a clarifying meaning. Therefore, even without such clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded in these GTCP.
§ 2 Conclusion of contract
(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The Seller must inform us of obvious errors (e.g. spelling 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 not be deemed to have been concluded.
(2) The Seller is obliged to confirm our order in writing within a period of 4 (four) days or, in particular, to execute it without reservation by sending the Products (acceptance).
(3) A delayed acceptance is considered a new offer and requires acceptance by us.
(4) Cost estimates are binding for the Seller and shall not be remunerated by us, unless expressly agreed otherwise in writing.
§ 3 Delivery time and delay in delivery
(1) The delivery time specified by us in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it is 2 (two) weeks from the conclusion of the contract. The Seller is obliged to inform us immediately in writing if he is unlikely to be able to meet the agreed delivery times – for whatever reason.
(2) In the case of deliveries and services made from an EU country, the Seller is obliged to provide the VAT identification number. The Seller undertakes to provide declarations and information required under Regulation EC No. 1207/2001 at his own expense, to allow inspections by the customs authority and to provide the necessary official confirmations. The Seller is obliged to inform us in detail and in writing about any approval requirements for (re-)exports in accordance with German and European export control law and customs regulations of the country of origin of the goods. The Seller is obliged to provide at his own expense requested declarations and information, to allow inspections by the customs authority and to provide necessary official confirmations or other necessary documents necessary for the import customs clearance of goods.
(3) In the case of software Products, the delivery obligation is only fulfilled when the complete (system-technical and user) documentation has been handed over. In addition to the right to use software that is part of the Product scope of delivery, including its documentation, we have the right to use it to the extent permitted by law (§§ 69a ff. UrhG) with the agreed service features and to the extent necessary for a contractual use of the Product. We may also make a backup copy without express agreement. In the case of programs created especially for us, the program must also be delivered in source format. In this case, the Seller will transfer all rights of use, processing and exploitation to us to the extent legally possible indefinitely, irrevocably and exclusively.
(4) If the Seller does not provide his service or does not provide it within the agreed delivery time or if he is in default, our rights – in particular to withdrawal and damages – shall be determined in accordance with the statutory provisions. The provisions in paragraph 5 remain unaffected.
(5) If the Seller is in default, we may – in addition to further statutory claims – demand lump-sum compensation for our damage caused by delay in the amount of 1% of the net price per completed calendar week, but in total not more than 5% of the net price of the Products delivered late. We reserve the right to prove that higher damage has occurred. The Seller reserves the right to prove that no or only a significantly lower damage has occurred.
§ 4 Performance, delivery, transfer of risk, default of acceptance
(1) Without our prior written consent, the Seller is not entitled to have the service owed by him provided by third parties (e.g. subcontractors). The Seller bears the procurement risk for his services, unless otherwise agreed in individual cases (e.g. limitation to stock).
(2) Delivery takes place within Germany "free delivery" to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, delivery must be made to our registered office in Murr. The respective place of destination is also the place of performance for the delivery and any subsequent performance (obligation to deliver).
(3) The delivery must be accompanied by a delivery note stating the date (issue and dispatch), the content of the delivery (article number and quantity) and our order identification (date and number). If the delivery note is missing or incomplete, we are not responsible for any resulting delays in processing and payment. Separately from the delivery note, a corresponding shipping notice with the same content must be sent to us.
(4) The risk of accidental loss and accidental deterioration of the item shall pass to us upon handover at the place of performance. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, too, the statutory provisions of the law on contracts for work and services shall apply accordingly in the event of acceptance. The handover or acceptance is the same if we are in default of acceptance.
(5) The statutory provisions shall apply to the occurrence of our default of acceptance. However, the Seller must also expressly offer us his service if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may demand reimbursement of his additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract concerns an unjustifiable item to be produced by the Seller (custom-made), the Seller is only entitled to further rights if we undertake to cooperate and are responsible for the lack of cooperation.
§ 5 Prices and terms of payment
(1) The price stated in the order is binding. All prices are inclusive of statutory value added tax if this is not shown separately.
(2) Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
(3) The agreed price is due for payment within 30 calendar days of complete delivery and service (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller grants us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be made on time if our transfer order is received by our bank before the expiry of the payment period; we are not responsible for delays caused by the banks involved in the payment process.
(4) We do not owe any maturity interest. The statutory provisions shall apply to default of payment.
(5) We are entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent permitted by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims against the Seller from incomplete or defective services.
(6) The Seller has a right of set-off or retention only because of legally established or undisputed counterclaims.
§ 6 Confidentiality and retention of title
(1) We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, Product descriptions and other documents. Such documents are to be used exclusively for the contractual service and returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The confidentiality obligation only expires when and to the extent that the knowledge contained in the documents provided has become generally known. Special non-disclosure agreements and legal regulations for the protection of secrets remain unaffected.
(2) The above provision shall apply mutatis mutandis to substances and materials (e.g. finished and semi-finished Products) as well as to tools, templates, samples and other items that we provide to the Seller for manufacture. As long as they are not processed, such items must be kept separately at the expense of the Seller and insured to an appropriate extent against destruction and loss.
(3) Any processing, mixing or combination (further processing) of provided items by the Seller shall be carried out for us. The same applies to further processing of the delivered Products by us, so that we are considered the manufacturer and acquire ownership of the Product at the latest with further processing in accordance with the statutory provisions.
(4) The transfer of ownership of the Products to us must take place unconditionally and without regard to the payment of the price. However, if we accept in individual cases an offer by the Seller for transfer of ownership due to the purchase price payment, the Seller's retention of title expires at the latest with the purchase price payment for the delivered Products. In the ordinary course of business, we shall remain authorised to resell the Products in the ordinary course of business even before payment of the purchase price by assigning the resulting claim in advance (alternatively, the simple retention of title extended to resale shall apply). In any case, all other forms of retention of title are excluded, in particular the extended, the forwarded and the extended retention of title to further processing.
§ 7 Defective delivery
(1) Our rights in the event of material defects and defects of title of the Products (including incorrect and short delivery as well as improper assembly/installation or defective instructions) and other breaches of duty by the Seller shall be subject to the statutory provisions and, exclusively in our favor, the following additions and clarifications.
(2) In accordance with the statutory provisions, the Seller is liable in particular for ensuring that the Products have the agreed quality at the time of transfer of risk to us. In any case, those Product descriptions that are the subject of the respective contract – in particular by designation or reference in our order – or have been included in the contract in the same way as these GTCP shall be deemed to be an agreement on the quality. It makes no difference whether the Product description comes from us, the Seller or the manufacturer.
(3) In the case of Products with digital elements or other digital content, the Seller owes the provision and updating of the digital content in any case to the extent that this results from a quality agreement in accordance with paragraph 2 or other Product descriptions of the manufacturer or on his behalf, in particular on the Internet, in advertising or on the Product label.
(4) We are not obliged to inspect the Products or to make special inquiries about any defects at the time of conclusion of the contract. Partly deviating from § 442 para. 1, 2nd sentence BGB (German Civil Code), we are therefore entitled to claims for defects without restriction even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
(5) The statutory provisions (§§ 377, 381 HGB) apply to the commercial obligation to inspect and give notice of defects with the following proviso: Our obligation to inspect is limited to defects that become apparent during our incoming Product inspection under external inspection, including the delivery documents (e.g. transport damage, incorrect and short delivery) or are recognizable during our quality control in the random sampling procedure. Insofar as acceptance has been agreed, there is no obligation to inspect. In all other respects, it depends on the extent to which an investigation 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. Without prejudice to our obligation to inspect, our complaint (notification of defects) shall in any case be deemed to be immediate and timely if it is sent within 5 (five) working days from discovery or, in the case of obvious defects, from delivery.
(6) Subsequent performance also includes the removal of the defective Products and the re-installation, provided that the Products were installed in another item or attached to another item in accordance with their nature and intended use before the defect became apparent; our legal claim to reimbursement of corresponding expenses (dismantling and installation costs) remains unaffected. The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs as well as any dismantling and installation costs, shall be borne by the Seller even if it turns out that there was actually no defect. Our liability for damages in the event of unjustified requests to remedy defects remains unaffected; in this respect, however, we shall only be liable if we have recognized or grossly negligently failed to recognize that there was no defect.
(7) Without prejudice to our statutory rights and the provisions in subsection 5 above, the following applies: If the Seller fails to fulfil his obligation to remedy the defect – at our discretion by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement from the Seller for the necessary expenses or a corresponding advance payment. If the subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to special urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline must be set; we will inform the Seller of such circumstances immediately, if possible in advance.
(8) In all other respects, we are entitled to reduce the purchase price or withdraw from the contract in the event of a material defect or legal defect in accordance with the statutory provisions. In addition, we are entitled to compensation for damages and expenses in accordance with the statutory provisions.
§ 8 Supplier Recourse
(1) We are entitled to our legally determined claims for expenses and recourse within a supply chain (supplier recourse in accordance with §§ 478, 445a, 445b or §§ 445c, 327 para. 5, 327 lit. u) BGB) without restriction in addition to the claims for defects. In particular, we are entitled to demand exactly the type of supplementary performance (rectification or replacement delivery) from the Seller that we owe to our customer in individual cases; in the case of Products with digital elements or other digital content, this also applies with regard to the provision of necessary updates. Our statutory right to vote (§ 439 para. 1 BGB) is not restricted by this.
(2) Before we acknowledge or fulfil a claim for a defect asserted by our customer (including reimbursement of expenses in accordance with §§ 445a para. 1, 439 para 2, 3, 6 2nd sentence, 475 para. 4 BGB), we will notify the Seller and ask for a written statement with a brief explanation of the facts. 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 is responsible for proving the contrary.
(3) Our claims arising from supplier recourse shall also apply if defective Products have been combined with another Product or further processed in any other way by us, our customer or a third party, e.g. by various forms of installation.
§ 9 Product liability and recall
(1) If the Seller is responsible for Product damage, he must indemnify us against claims of third parties to the extent that the cause is set in his sphere of control and organization and he himself is liable in the external relationship. In cases of fault-based liability, however, this only applies if the Seller is at fault. If the cause of the damage is the responsibility of the Seller, he bears the burden of proof for the correctness of the delivered Product. In these cases, the Seller shall bear all costs and expenses, including the costs of any legal action or recall action, insofar as he is responsible for the defect of the Product delivered by him.
(2) Within the scope of his indemnification obligation, the Seller must reimburse expenses in accordance with §§ 683, 670 BGB , which result from or in connection with a claim against third parties, including recalls carried out by us. We will inform the Seller about 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 must take out and maintain Product liability insurance with a lump sum coverage of at least EUR 5,000,000 million per personal injury/property damage.
(4) The Seller will also provide Product recall insurance with a sum insured of EUR 5,000,000 million per year and will also provide the buyer with proof of the financial reimbursement of costs that will cover damage caused by the Product recall.
§ 10 Statute of limitations
(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise specified below.
(2) Notwithstanding § 438 para. 1, no. 3 BGB the general limitation period for claims for defects is 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period begins with acceptance. The 3-year limitation period shall also apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for claims in rem by third parties (§ 438 para. 1 no. 1 BGB) remains unaffected; In addition, claims arising from defects of title shall not become statute-barred in any case as long as the third party can still assert the right against us – in particular in the absence of a statute of limitations.
(3) The limitation periods of the sales law, including the above extension, apply – to the statutory extent – 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 (§§ 195, 199 BGB) shall apply if the application of the limitation periods of the Sales Law does not lead 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 exclusively by the substantive 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 and regulations on conflict of laws.
(2) The exclusive international and local place of jurisdiction for all disputes arising from or on the occasion of the contractual relationship is Stuttgart. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTCP or a priority individual agreement or at the general place of jurisdiction of the Seller. Mandatory statutory provisions, in particular on exclusive responsibilities, remain unaffected.