General terms and conditions (purchasing conditions) of
§ 1 General, Scope
(1) The present General Terms and Conditions of Purchase (AEB) apply to all business relationships with our business partners and suppliers (hereinafter: "Seller").
(2) The GPC apply in particular to contracts for the sale and / or delivery of movable objects, regardless of whether the seller manufactures the goods himself or buys them from suppliers (§§ 433, 651 BGB), as well as any services (hereinafter also: goods). The current version of the GPC also apply as a framework agreement for future contracts for the sale and / or delivery of goods with the same seller, without us having to refer to them again in each individual case; In this case, we will inform the seller immediately about changes to our GPC in accordance with § 12.
(3) These GPC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the seller 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 we accept the seller's deliveries without reservation, knowing the general terms and conditions of the seller.
(4) Individual agreements made with the seller on a case-by-case basis (including side agreements, additions and changes) always take precedence over these GPC. A written contract or our written confirmation is authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications that the seller must submit to us after the conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be in writing to be effective.
(6) References to the validity of legal regulations only have a clarifying meaning. The statutory provisions therefore apply even without such a clarification, unless they are directly amended or expressly excluded in these GPC.
§ 2 Conclusion of contract
(1) Our order is considered binding at the earliest when it is submitted or confirmed in writing. The seller must inform 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 is deemed not to have been concluded. The customer is entitled to set-off and retention rights to the extent legally or contractually agreed.
(2) The seller is required to issue an order confirmation immediately upon receipt of the order.
(3) A delayed acceptance counts as a new offer and requires acceptance by us.
§ 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 48 hours 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) If the seller does not provide his service or does not provide his service within the agreed delivery time or if he is in default, our rights - in particular to withdrawal and compensation - are determined according to the statutory provisions. The regulations in paragraph 3 remain unaffected.
(3) If the seller is in default, we can - in addition to further legal claims - flat-rate compensation for our default damage in the amount of Request 1% of the net price per completed calendar week, but not more than 5% of the net price of the delayed goods. We reserve the right to prove that we incurred greater damage. The seller reserves the right to prove that we suffered no damage at all or only significantly less damage.
§ 4 Service, delivery, transfer of risk, default in acceptance
(1) Without our prior written consent, the seller is not entitled to have the services owed by him performed by third parties (e.g. subcontractors). The seller bears the procurement risk for his services, unless otherwise agreed in individual cases (e.g. sale of goods in stock). The seller is only entitled to partial deliveries and / or partial services with our express written consent.
(2) Delivery within Germany is “free domicile” to the location specified in the order. If the destination is not specified and nothing else has been agreed, delivery must be made to our place of business in Wilburgstetten. The respective destination is also the place of 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 number) and our order identifier (date and number). If the delivery note is missing or incomplete, we are not 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) The risk of accidental loss and accidental deterioration of the item is transferred to us upon delivery at the place of performance. If an acceptance has been agreed, this is decisive for the transfer of risk. In addition, the statutory provisions of the law on contracts for work and services apply accordingly to acceptance. The transfer or acceptance is the same if we are in default of acceptance.
(5) The statutory provisions apply to the occurrence of our default in acceptance. However, the seller must also expressly offer us his service if a specific or definable 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 can demand reimbursement of his additional expenses according to the statutory provisions (Section 304 BGB). If the contract concerns an unjustifiable item to be manufactured by the seller (one-off production), the seller is only entitled to further rights if we are obliged to cooperate and are responsible for the failure to cooperate.
§ 5 Prices and terms of payment
(1) The price stated in the order is binding. All prices include the statutory sales 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 90 calendar days of complete delivery and service (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 45 calendar days, the seller grants us a 3% discount on the net amount of the invoice. In the case of bank transfers, payment is made on time if our transfer order is received by our bank before the payment deadline has expired; We are not responsible for delays caused by the banks involved in the payment process.
(4) We do not owe any maturity interest. The default interest is 5 percentage points annually above the base rate. The statutory provisions apply to the occurrence of our default, although a written reminder from the seller may be required in any case, deviating from this.
(5) We are entitled to set-off rights and rights of retention as well as the objection of the non-fulfilled contract to the extent permitted by law. In particular, we are entitled to withhold payments due as long as we are still entitled to claims against the seller from incomplete or inadequate services.
(6) The seller has a right of set-off or retention only for counterclaims that have been legally established or are undisputed
(7) The agreed prices remain valid as the upper price limit for the future. Any changes must be agreed with us separately in writing.
§ 6 Confidentiality and Retention of Title
(1) We reserve the right of ownership and copyrights to images, 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 the contract has been completed. The documents as well as orders, deliveries and prices must be kept strictly confidential from third parties, even after the contract has ended. The confidentiality obligation only expires when and to the extent that the knowledge contained in the documents provided has become generally known.
(2) The above provision applies 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 manufacture. Such objects - as long as they are not processed - are to be stored separately at the expense of the seller and insured to an appropriate extent against destruction and loss.
(3) Processing, mixing or combining (further processing) of provided items by the seller is carried out for us. The same applies to further processing of the delivered goods 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 goods to us must take place unconditionally and regardless of the payment of the price. However, if we accept an offer of transfer of ownership by the seller due to the payment of the purchase price in individual cases, the seller's retention of title expires at the latest with the payment of the purchase price for the goods delivered. In the ordinary course of business, we remain authorized to resell the goods, even before the purchase price is paid, by assigning the resulting claim in advance (alternatively, application of the simple retention of title extended to the resale). In any case, all other forms of retention of title are excluded, in particular the extended, forwarded and extended retention of title to further processing.
§ 7 Defective delivery
(1) The statutory provisions apply to our rights in the event of material and legal defects in the goods (including incorrect and short deliveries as well as improper assembly, faulty assembly, operating or operating instructions) and in the event of other breaches of duty by the seller, unless otherwise specified below .
(2) According to the statutory provisions, the seller is particularly liable for ensuring that the goods have the agreed quality when the risk is transferred 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 are included in the contract in the same way as these GPC apply as an agreement on the quality. It makes no difference whether the product description comes from us, the seller or the manufacturer. The seller assures us that the goods delivered are free of defects in every respect, in particular with regard to their composition, construction and labeling, and are unrestrictedly marketable in Germany and / or in the country of destination resulting from the order and that their sale does not violate any applicable legal regulations the rights of third parties, in particular property rights or distribution agreements, are interfered with.
(3) Notwithstanding Section 442, Paragraph 1, Clause 2 of the German Civil Code, we are entitled to unlimited claims for defects even if the defect was unknown to us at the time the contract was concluded as a result of gross negligence.
(4) The statutory provisions (§§ 377, 381 HGB) apply to the commercial inspection and notification obligation, with the following stipulation: Our inspection obligation is limited to defects that arise during our incoming goods inspection under external assessment, including the delivery papers, as well as during our quality control using random sampling come to light (e.g. transport damage, wrong and short deliveries). If acceptance has been agreed, there is no obligation to examine. In addition, it depends on the extent to which an investigation is feasible in the normal course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects that are discovered later remains unaffected. In all cases, our complaint (notification of defects) is deemed to be prompt and timely if it is received by the seller within 10 working days. The notification of defects can be made in writing or orally. The seller cannot invoke a breach of the obligation to give notice of defects on the part of the customer if the defectiveness of the goods is due to circumstances that the seller knows or about which he could only be ignorant as a result of gross negligence.
(5) The costs incurred by the seller for the purpose of testing and rectification (including any removal and installation costs) are borne by the seller even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy defects remains unaffected; In this respect, however, we are only liable if we recognized or did not recognize through gross negligence that there was no defect.
(6) If the seller does not meet his obligation to supplementary performance - at our option by eliminating the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery) - within a reasonable period set by us, we can eliminate the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the seller. If the supplementary performance by the seller has failed or is unreasonable for us (e.g. due to particular urgency, threat to operational safety or impending occurrence of disproportionate damage), there is no need to set a deadline; we will inform the seller immediately, if possible in advance, of such circumstances.
(7) In addition, in the event of a material or legal defect, we are entitled to reduce the purchase price or to withdraw from the contract 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 statutory recourse claims within a supply chain (supplier recourse according to §§ 478, 479 BGB) in addition to claims for defects. In particular, we are entitled to demand exactly the type of supplementary performance (repair or replacement delivery) from the seller that we owe to our customers in individual cases. This does not restrict our statutory right to choose (Section 439 (1) BGB).
(2) Before we acknowledge or fulfill a defect claim asserted by our customer (including reimbursement of expenses in accordance with §§ 478 Paragraph 3, 439 Paragraph 2 BGB), we will notify the seller and ask for a written statement, briefly explaining the facts. If the statement is not made within a reasonable period of time and if no amicable solution is found, the claim for defects actually granted by us is deemed to be owed to our customer; In this case, the seller is responsible for proving the contrary.
(3) Our claims from supplier recourse also apply if the goods were further processed by us or one of our buyers, e.g. by incorporation into another product, before they were sold to a consumer.
§ 9 Producer liability
(1) If the seller is responsible for product damage, infringement of property rights or for any other encroachment on the rights of third parties, he has to indemnify us from third party claims insofar as the cause is in his sphere of control and organization and he is himself liable in the external relationship. The seller's obligation to indemnify relates in particular to all costs and expenses, including the costs of legal proceedings.
(2) As part of his indemnification obligation, the seller has to reimburse expenses in accordance with §§ 683, 670 BGB, which result from or in connection with claims by third parties, including recall campaigns 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.
(3) The seller must take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury / property damage. He has to submit the confirmation of this upon written request by us.
(4) The fault of his vicarious agents is to be charged to the seller in the same way as his own fault up to an amount of 100,000.00 EUR per case of damage.
(5) The seller guarantees that he will comply with the requirements of the EU chemicals regulation REACH (Regulation (EC) No. 1907/2006 of December 30, 2006) in the currently valid version, in particular that the substances have been registered. The purchaser is not obliged to obtain approval for goods delivered by the supplier within the framework of the REACH regulation.
§ 10 Statute of limitations
(1) The mutual claims of the contracting parties expire in accordance with the statutory provisions, unless otherwise specified below.
(2) Notwithstanding § 438 Paragraph 1 No. 3 BGB, the general limitation period for claims for defects is 3 years from the transfer of risk. If an acceptance has been agreed, the statute of limitations begins with the acceptance. The 3-year limitation period applies accordingly to claims arising from defects of title, whereby the statutory limitation period for real claims for surrender by third parties (Section 438 (1) No. 1 BGB) remains unaffected; In addition, claims based on legal defects do not become statute-barred as long as the third party can still assert the right against us, especially in the absence of a limitation period.
(3) The limitation periods of the sales law including the above extension apply - to the legal extent - for 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 (§§ 195, 199 BGB) applies, unless the application of the limitation periods of the sales law in individual cases leads to a longer limitation period.
§ 11 Choice of law and place of jurisdiction
(1) For these GPC and all legal relationships between us and the seller, the law of the Federal Republic of Germany applies to the exclusion of uniform international law, in particular the UN sales law. The prerequisites and effects of the retention of title are subject to the law of the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
(2) The exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship is our place of business in Wilburgstetten. However, we are also entitled to take legal action at the place of performance of the delivery obligation.
§ 12 Changes to the GPC
Changes to these GPC will be offered to the supplier no later than 30 days before the proposed date of their entry into force in text form or via an electronic communication channel. Approval is deemed to have been given if the supplier has not indicated its rejection before the proposed time for the changes to take effect. The purchaser will point out this approval effect separately.