1.
1.0 Scope of Application, Form
1.1
These General Conditions of Purchase (hereinafter: GPC) apply to all our business relationships with our business partners and suppliers (hereinafter: sellers). The GPCs shall only apply if the seller is an entrepreneur (Article 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
1.2
The GPCs shall apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter: goods), irrespective of whether the seller manufactures the goods himself or purchases them from suppliers (Articles 433, 650 BGB). Unless otherwise agreed, the GPCs 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.
1.3
These GPCs apply exclusively. Deviating, conflicting or supplementary general terms and conditions 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 the seller refers to its General Terms and Conditions of Business in the order confirmation and we do not expressly object to this.
1.4
Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order shall take precedence over the GPCs. In case of doubt, trade terms shall 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.
1.5
Legally relevant declarations and notifications by the seller in relation to the contract (e.g. setting of deadlines, reminders, cancellation) must be made in writing. In writing within the meaning of these GPCs 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.
1.6
References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these GPCs.
2.
Conclusion of Contract
2.1
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.
2.2
The seller is obliged to confirm our order in writing within a period of 10 days - without any extensions, restrictions or other changes - or, in particular, to fulfil it without reservation by dispatching the goods (hereinafter: acceptance).
Delayed acceptance shall be deemed a new offer and requires acceptance by us.
Delivery Time and Delayed Delivery
3.1
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 shall be 4 weeks from conclusion of the contract. The seller is obliged to inform us immediately in writing if he is likely to be unable to meet agreed delivery times - for whatever reason.
3.2
If the seller does not perform its service or does not perform it within the agreed delivery period or is in default, our rights - in particular to cancellation and compensation - shall be determined in accordance with the statutory provisions. The provisions in No. 3.3 remain unaffected.
3.3
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 5% of the net price of the goods delivered late in total. 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.
Performance, Delivery, Transfer of Risk, Default of Acceptance
4.1
Without our prior written consent, the seller is not authorised to have the service owed by it performed by third parties (e.g. subcontractors). The seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).
4.2
Delivery within Germany is "free domicile" to the location 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 73037 Göppingen. The respective place of destination is also the place of fulfilment for the delivery and any subsequent fulfilment (obligation to be discharged at creditor's domicile).
4.3
A delivery note stating the date (issue and dispatch), contents of the delivery (article number and quantity) and our order identification (date and number) must be enclosed with the delivery. If the delivery note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch note with the same content must be sent to us separately from the delivery note.
4.4
The risk of accidental loss and accidental deterioration of the goods shall pass to us upon handover at the place of fulfilment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
4.5
The statutory provisions shall apply to the occurrence of our default of acceptance. However, the seller must also expressly offer us its 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 compensation for his additional expenses in accordance with the statutory provisions (Article 304 BGB). If the contract relates to a non-fungible item to be manufactured by the seller (customised production), the seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
Prices and Payment Terms
5.1
The price stated in the order is binding. All prices include statutory value added tax if this is not shown separately.
5.2
Unless otherwise agreed in individual cases, the price shall include 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).
5.3
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 is deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we are not responsible for delays caused by the banks involved in the payment process.
5.4
We do not owe any maturity interest. The statutory provisions shall apply to default of payment.
5.5
We shall be 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 arising from incomplete or defective services.
5.6
The seller shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims.
Confidentiality and Retention of Title
6.1
We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents are to be used ex-clusively 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 confiden-tiality obligation shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known. Special confidentiality agreements and statutory provisions on the protection of secrets remain unaffected.
6.2
The above provision shall apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items that we provide to the seller for production. Such items shall - as long as they are not processed - be stored separately at the seller's expense and insured to an appropriate extent against destruction and loss.
6.3
Processing, mixing or combining (hereinafter: further processing) of items provided by the seller shall be carried out for us. The same applies if we further process the delivered goods, so that we are deemed to be the manufacturer and acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
6.4
The transfer of ownership of the goods to us must take place unconditionally and without regard to the payment of the price. However, if in individual cases we accept an offer from the seller for transfer of 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. We shall remain authorised to resell the goods in the ordinary course of business, even before payment of the purchase price, subject to advance assignment of the resulting claim (alternatively, the simple reservation of title extended to the resale shall apply). 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.
Defective Delivery
7.1
The statutory provisions and, exclusively in our favour, the following supplements and clarifications 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/installation or defective instructions) and in the event of other breaches of duty by the seller.
7.2
In accordance with the statutory provisions, the seller shall be liable in particular for ensuring that the goods have the agreed quality at the time of the 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 GPCs 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.
7.3
In the case of goods with digital elements or other digital content, the seller is responsible for providing and updating the digital content in any case to the extent that this results from a quality agreement in accordance with No. 7.2 or other product descriptions of the manufacturer or on his behalf, in particular on the internet, in advertising or on the goods label.
7.4
We are not obliged to inspect the goods or make special enquiries about any defects upon conclusion of the contract. Partially deviating from Article 442 para. 1 sentence 2 BGB, 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.
7.5
The statutory provisions (Articles 377, 381 of the German Commercial Code - HGB)shall apply to the commercial duty to inspect and give notice of defects, subject to the following proviso: Our duty to inspect is limited to defects which become apparent during our incoming goods inspection by external examination including the delivery documents (e.g. transport damage, incorrect and short delivery) or which are recognisable during our quality control by random sampling. If acceptance has been agreed, there is no obligation to inspect. Furthermore, 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. Notwithstanding our duty to inspect, our complaint (notification of defects) shall be deemed to have been made immediately and in good time if it is sent within 10 working days of discovery or, in the case of obvious defects, of delivery.
7.6
Subsequent fulfilment shall also include the removal of the defective goods and reinstallation, provided that the goods were installed in another item or attached to another item in accordance with their nature and intended use before the defect became apparent; our statutory claim to reimbursement of corresponding expenses (removal and installation costs) shall remain unaffected. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour 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 shall remain unaffected; however, we shall only be liable in this respect if we recognised or were grossly negligent in not recognising that there was no defect.
7.7
Notwithstanding our statutory rights and the provisions in No. 7.5, the following shall apply: If the seller fails to fulfil its obligation to provide subsequent performance - at our discretion by remedy-ing the defect (hereinafter: subsequent performance) or by delivery of a defect-free item (hereinafter: delivery of a replacement) - within a reasonable period set by us, we may remedy the defect ourselves and demand compensation from the seller for the necessary expenses or a corresponding advance payment. If subsequent fulfilment 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.
7.8
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. We are also entitled to compensation for damages and expenses in accordance with the statutory provisions.
Supplier Recourse
8.1
1We are entitled to our statutory claims for expenses and recourse within a supply chain (supplier recourse pursuant to Articles 478, 445a, 445b or Articles 445c, 327 ( 5), 327u 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 our customer in the individual case; in the case of goods with digital elements or other digital content, this also applies with regard to the provision of necessary updates. Our statutory right of choice (Article 439 para. 1 BGB) is not restricted by this.
8.2
Before we recognise or fulfil a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Articles 445a para. 1, 439 para. 2, 3, 6 sentence 2, 475 para. 4 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 has the burden of proof to the contrary.
8.3
Our claims arising from supplier recourse shall also apply if the defective goods have been combined with another product or further processed in any other way by us, our customer or a third party, e.g. by installation, attachment or installation.
Producer Liability
9.1
If the seller is responsible for product damage, he must indemnify us against third-party claims to the extent that the cause lies within his sphere of control and organisation and he himself is liable in relation to third parties.
9.2
As part of its obligation to indemnify, the seller must reimburse expenses pursuant to Articles 683, 670 BGB arising from or in connection with claims asserted by third parties, including recall actions carried out by us. We will inform the seller - as far as possible and reasonable - about the content and scope of recall measures and give him the opportunity to comment. Further legal claims remain unaffected.
9.3
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.
Limitation Period
10.1
The reciprocal claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.
10.2
Notwithstanding Article 438 para. 1 No. 3 BGB, the general limitation period for claims for defects is 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 for restitution in rem (Article 438 para. 1 No. 1 BGB) shall remain unaffected; furthermore, 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.
10.3
The limitation periods under sales law, including the above extension, apply - to the extent per-mitted 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 (Articles 195, 199 BGB) shall apply, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
Choice of Law and Place of Jurisdiction
11.1
These GPCs 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.
11.2
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 73037 Göppingen. The same applies if the seller is an entrepreneur within the meaning of Article 14 BGB. In all cases, however, we shall also be entitled to bring an action at the place of fulfil-ment of the delivery obligation in accordance with these GPCs or an overriding individual agreement or at the general place of jurisdiction of the seller. Overriding statutory provisions, in particular regarding exclusive responsibilities, remain unaffected.
Contract Language and Notifications and Other Declarations of Intent
12.1
The contractual language is German.
12.2
All notifications and declarations relating to a contract concluded by us with a seller as well as its execution or fulfilment must be made in writing and in German.