GENERAL TERMS AND CONDITIONS OF PURCHASE
1. General
Orders placed by the Customer (hereinafter referred to as AG) are governed exclusively by the present General Terms and Conditions of Purchase. The confirmation or execution of an order is deemed an acknowledgment of the present General Terms and Conditions of Purchase. This shall also apply should the Supplier (hereinafter referred to as AN) indicate that he intends to deliver only on his own terms and conditions. Other terms and conditions or deviations from the present General Terms and Conditions of Purchase require the written consent of AG in order to be effective. Our General Terms and Conditions of Purchase also apply to all future business transactions with AN.
2. Order
An order is only considered placed upon being set forth in writing and signed by AG. Verbal orders or orders placed by telephone are only binding on AG upon being confirmed by subsequent transmittal of a written order. Orders may also be placed electronically, provided AG and AN have previously expressly agreed upon same in writing. Other incidental costs (customs duties, insurance premiums, tolls, etc.) shall be borne by AN and AN is to factor same into its quote. Should AG not receive written order confirmation from AN within five (5) days of placing an order, AG is entitled to cancel the order without charge in writing. A written order confirmation may also be issued electronically, provided AG and AN have previously expressly agreed upon same in writing. Changes and additions to the order and its acceptance must be made in writing. Additional verbal agreements, whether made at the time of or subsequent to contract conclusion, are only effective if confirmed in writing by AG. AN is to provide an order fulfillment surety upon AG request.
3. Invoice
Invoices are to be submitted in duplicate and are never to be included with the goods. Invoices are generally only paid when duly and legibly signed delivery notes, certificates of acceptance, etc. are attached. Each invoice is to include the name of the person who placed the order, the purchase order number, the cost center and/or paying cost unit and the place of delivery. All the aforementioned order data is to be accordingly indicated on the invoice. Invoices for labor or assembly must include AG-verified time sheets. AG may only render partial or installment payments upon prior agreement. AG reserves the right to return invoices without further processing which are not in compliance with the aforesaid requirements, in particular with respect to the order data or sales tax-related regulations. Should this occur, the invoice is regarded as not having been issued. AN is responsible for all costs and consequences incurred as a result of failure to comply with this obligation.
4. Deliveries
The agreed delivery terms and dates, force majeure excepted, are binding. Same commence from the date of the order. The goods must be received at the AG-designated receiving point within the delivery term or by the delivery deadline respectively. Should delays be expected, AN is to promptly inform AG of same and obtain a decision as to whether to continue processing the order. AG is not obligated to accept delivery prior to expiration of the delivery deadline. Should the delivery and performance deadlines have passed, AG is entitled to claim contractual penalties for each commenced week of default amounting to 1% of the total order value, albeit not exceeding 5% in total, or to withdraw from the contract. AG’s justified legal claims due to delay or default are not affected by the contractual penalty agreement or its enforcement. Delivery to the indicated receiving address shall be free of charge at AN’s own risk and expense. AG is only obligated to accept partial deliveries upon same having been contractually agreed upon in advance. AN bears all risk of accidental loss or accidental deterioration prior to acceptance. Should AN not duly fulfill its contractually incumbent obligations in conjunction with transport (e.g. unloading the delivered goods), AN shall reimburse AG any and all costs incurred. Risk is not prematurely transferred even should AG assist in the fulfillment of the acts incumbent upon AN; AG is solely responsible for acts of gross negligence and willful intent. When preparing shipping documents, AN is to ensure the certificate of origin is included in all deliveries from foreign countries (supplier declaration pursuant to the Council Regulation (EC) 1207/2001). All packaging is included in the price. AN is to select the packaging stipulated by AG and ensure that said packaging protects the goods from damage. AN is responsible for the disposal of the packaging. Returnable packaging subject to deposit is to be collected at no charge to AG after a reasonable and agreed period of time. AN shall procure an adequate insurance policy for goods in transit
5. Payment terms/deadlines
Unless otherwise agreed, net payment is due within thirty (30) days. AN allows AG a deduction of 3% from the invoiced amount if said invoice is paid within fourteen (14) calendar days; this term commencing as of receipt of the contractual delivery and a verifiable invoice. Partial installment payments on partial deliveries require prior written agreement. Overdue notices must be made in writing. AG is not in default until after due warning. The timeliness of AG’s payment is determined by the date the transfer order is submitted to the bank/financial institute or, respectively, the date on which the check is mailed.
6. Rendering of performance
AN assumes responsibility for ensuring that the goods, including packaging and labeling, conform to AG’s specifications. The order is to be properly and professionally effected pursuant to the latest relevant state of technology with due regard to the statutory provisions and regulations applicable to the Federal Republic of Germany as well as the requirements of all relevant authorities, agencies and the respectively applicable technical regulations and standards.
7. Guarantee/Warranties/Claims
AN guarantees that its delivery and/or service is free of defects for a warranty period of three (3) years. This period commences upon AG discovering a defect. A written notice of defects by AG suspends this period until the defect is remedied or until AN’s final written refusal to remedy the defect. AG is to inspect deliveries/services within the realm of the normal course of business – albeit no later than within two (2) weeks of delivery – and promptly provide written notification to AN of any ascertained defects. Any AG inspection obligations are limited to promptly examining the goods for correspondence to the ordered quantity and ordered type as well as whether there are any visibly apparent transport damages or visibly apparent defects. To the extent AG is obligated to provide immediate notification of defects, hidden defects may be reported within two (2) weeks, other defects within one (1) week of their discovery.
AG alone has the right in all cases to choose between rectification and replacement. The right to damage compensation, particularly damage compensation in lieu of performance, is expressly reserved. Should defective goods be delivered, AG may give AN the opportunity to rectify or replace same. Should AN not be able to do so or fail to do so promptly upon request within a set deadline, AG is entitled to have said defect be rectified at AN’s risk and expense or, should rectification not be possible, to acquire a substitution thereof from another Supplier at AN’s cost. In urgent cases, AG is entitled to rectify a defect itself or have it rectified by a third party upon notifying AN. Any and all costs thereby incurred shall be borne by AN. Although AG is entitled to reject goods which are not legibly provided with the following minimum information: name of the person who placed the order, cost center/paying cost unit and place of delivery, AG does, however, also have the right to nevertheless accept the goods.
8. Use of subcontractors/suppliers
Should AN intend to use subcontractors, AN must inform AG thereof in writing. AG reserves the right to deny the use of subcontractors/suppliers. Same are deemed AN’s vicarious agents under 2.78 of the German Civil Code (BGB).
9. Liability
AN exempts AG from damage claims which may be asserted against AG due to a defect or error of an AN-supplied product, in particular AG liability in its own customer claims against AG from loss of profit, operational downtime, penalties or other similar claims. If an object manufactured by AG using AN supplies and sold to a customer is defective and said defect is attributed to the AN consignment, AG can claim compensation for expenses from AN, particularly the transport, travel, labor and material costs AG had to bear with respect to its own customer pursuant to 4.39 (2) of the BGB. AN moreover exempts AG from all costs and expenses AG incurs – to the extent and nature required – in conjunction with precautionary measures for avoiding non-contractual liability under domestic or foreign law (e.g. under product liability law) (particularly due to product warnings or recalls); this applies however only as far as these measures having been caused by a defective AN consignment. AN remains liable in all other respects under the legal provisions, equally without limitation.
10. Industrial property rights
AN is liable for ensuring that its delivery and AG’s utilization of same does not infringe any patent or other industrial property rights. AN exempts AG and its customers from all claims ensuing from the use of such property rights. Delivery of a copyrighted work gives AG a non-exclusive and unlimited general right of use. AG is in this case also entitled to obtain from the owner of such property rights any necessary authorization for the delivery, commissioning, operation, resale, etc. of the supplied object at AN’s expense.
11. Confidentiality
AN is obligated to treat as trade secrets all not publicly known commercial and/or technical details associated with the AG order which AN becomes aware of in the course of the business relationship. Specific designs to the assembly and auxiliary equipment are in particular the intellectual property of AG and are to be treated confidentially by AN. All items which AG provides AN such as e.g. quotes, orders, drawings, displays and/or tools remain the property of AG and may not be made available to third parties. Non-disclosure obligations are also to be imposed on subcontractors. AN shall be obligated to pay a contractual penalty of fifty thousand (50,000) euro for each breach of this non-disclosure obligation. AN has the right to prove a lower amount of damage.
12. Non-permissible advertising
AN may only reference the business relationship in its advertising upon AG’s express and written consent. The AG company logo may not be used for advertising purposes without written consent.
13. Non-competition clause
AN agrees to refrain from approaching AG’s customers and offering similar or identical services to those it provides as a subcontracted service to AG, and thus as a part of the performance AG provides to its own customers, for a period of two (2) years starting from the last order placed by AG. For each breach of this formal obligation, AN shall be obligated to pay AG a contractual penalty of fifty thousand (50,000) euro without forfeiture of same necessitating culpable AG conduct.
14. Subrogation
AN claims against AG may only be transferred to third parties with the written consent of AG.
15. Set-off/Retention
Set-off or retention against AG claims, and thereby other associated claims, is only permissible in the case of uncontested and/or legally established payable counterclaims.
16. Place of performance, applicable law and jurisdiction
Place of performance and jurisdiction in Germany is the registered AG headquarters of the branch office placing the order. All legal relations between AN and AG are governed by German law. Should AN be registered outside of Germany, German law as well as UN commercial law (CISG) shall be applicable. AG is entitled to withdraw from the contract in the event AN initiates insolvency proceedings or should AN cease making payments beyond just temporarily or should insolvency proceedings be initiated on AN assets and/or such proceedings be dismissed for lack of assets.
17. Severability clause
Should one or more provisions of the present General Terms and Conditions of Purchase be or become invalid, the remaining provisions shall not be in any way thereby affected and shall remain valid.