General Terms and Conditions of Purchase (GTCP) of Elried Markierungssysteme GmbH
1. scope, form
(1) These General Terms and Conditions of Purchase (hereinafter: GTCP) shall apply to all business relations with our business partners and suppliers (hereinafter: Seller). The GPC shall 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 GPC shall apply in particular to contracts (hereinafter also referred to as: order) for the sale and/or delivery of movable goods (hereinafter also referred to as: goods), irrespective of whether the Seller manufactures the goods itself or purchases them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GPC in the version valid at the time of the order or in any case in the version last notified 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.
(3) These GPC shall 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 requirement of consent shall apply in any case, for example even if we accept the Seller’s deliveries without reservation in the knowledge of the Seller’s General Terms and Conditions.
(4) Individual agreements made with the Seller in individual cases (including collateral agreements, supplements and amendments), in particular supply agreements, framework agreements and quality assurance agreements, shall in any case take precedence over these GPC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications of the Seller with regard to the contract (e.g. setting of deadlines, reminders, withdrawal) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in case of doubt about the legitimacy of the declarant, shall remain unaffected.
(6) The Seller shall treat the information and documents received from us (e.g. offers, price lists, technical documents) as confidential and shall only pass them on or disclose them to third parties with our written consent.
(7) References to the applicability of statutory provisions shall be for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.
2. conclusion of contract
(1) Our order shall be deemed binding at the earliest upon written acceptance or written confirmation by the Seller. The Seller shall notify 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 prior to acceptance; otherwise the contract shall be deemed not concluded.
(2) In its offer, the Seller shall comply with our invitation to tender with regard to quantity, quality and design. In the event of deviations, he must point them out to us. If the Seller’s offer is preceded by an invitation to tender by us, the Seller shall clearly emphasize any deviations therefrom.
(3) The Seller shall be obliged to confirm our order in writing within a period of 5 working days or, in particular, to execute it without reservation by dispatching the goods (acceptance). A delayed acceptance is considered a new offer and requires acceptance by us.
3. delivery time and delay in delivery
(1) The delivery time stated 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 weeks from the 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. The seller is aware that we are obligated to our customers to comply with fixed delivery times.
(2) If the Seller does not perform or does not perform within the agreed delivery time or if the Seller is in default, our rights – in particular to rescission and damages – shall be determined in accordance with the statutory provisions. The regulations in para. 3 remain unaffected.
(3) If the Seller is in default, we may – in addition to further statutory claims – demand lump-sum compensation for our default damages 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 goods delivered late. 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 a significantly lower damage has occurred. If we accept the delayed performance, we will claim the contractual penalty with the final payment at the latest.
4 Performance, delivery, transfer of risk, default of acceptance
(1) The Seller shall not be entitled to have the performance owed by it rendered by third parties (e.g. subcontractors) without our prior written consent. The Seller shall bear the procurement risk for its services unless otherwise agreed in the individual case (e.g. limitation to stock).
(2) Partial deliveries and early deliveries shall only be permitted if we approve them in writing in advance.
(3) Delivery shall be made “free domicile” within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, the delivery shall be made to our place of business. The respective place of destination is also the place of performance for the delivery and any subsequent performance (obligation to deliver). Our packing instructions must be taken into account.
(4) The delivery shall be accompanied by a delivery bill stating the date (issue and dispatch), the content of the delivery (item number and quantity) and our order identifier (date and number). If the delivery bill is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment.
(5) 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, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(6) The statutory provisions shall apply to the occurrence of our default in acceptance. However, the Seller must also expressly offer its performance to us if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. the granting of releases, etc.). If we are in default of acceptance, the Seller may demand compensation for its additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to a non-representable item to be manufactured by the Seller (individual production), the Seller shall only be entitled to further rights if we have undertaken 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 are inclusive of statutory value added tax if this is not shown separately.
(2) Unless otherwise agreed in the individual case, 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). The Seller shall take back packaging material upon our request.
(3) The invoice shall reflect all markings required by the Purchase Order for each shipment and shall show at least the following: Invoice number, invoice date, full name and address of the Seller, reference/order number, account details, tax number, invoice amount, quantity, VAT (if applicable).
(4) 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 grants us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before the expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.
(5) We do not owe any maturity interest. The statutory provisions shall apply to default in payment.
(6) We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. In particular, we shall be entitled to withhold payments due as long as we are still entitled to claims against the Seller arising from incomplete or defective performance.
(7) The Seller shall have a right of set-off or retention only in respect of counterclaims that have become res judicata or are undisputed.
6. secrecy, retention of title
(1) We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.
(2) The foregoing provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which 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 a reasonable 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 shall apply in the event of further processing of the delivered goods by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
(4) The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. If, however, we accept an offer of the seller for transfer of ownership conditional on payment of the purchase price in an individual case, the seller’s retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. We shall remain authorized to resell the goods in the ordinary course of business even prior to payment of the purchase price with advance assignment of the claim arising therefrom (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 passed-on retention of title and the retention of title extended to further processing.
7. quality management, auditing, right of access
(1) The Seller undertakes to apply and maintain a suitable quality management system in the performance of the contractual services and to prove this to us upon request. We have the right to satisfy ourselves of the Seller’s quality capability through system, process and/or product audits. The Seller shall oblige its subcontractors in accordance with this section.
(2) The Seller shall grant us, our customers, as well as superior institutions and authorities, upon order, both the right to conduct audits at the Seller’s premises and the right of access to the affected areas of its facilities and to the corresponding documented information at any level of the supply chain.
8. defective delivery
(1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including wrong delivery and short delivery as well as improper assembly, defective assembly, operating or instruction manual) and in the event of other breaches of duty by the Seller, unless otherwise stipulated below.
(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality when the risk passes to us. In any case, those product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or have been included in the contract in the same way as these GPC 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) Notwithstanding § 442 para. 1 S. 2 BGB, we shall also be entitled to claims for defects without limitation if the defect remained unknown to us at the time of conclusion of the contract as a result of gross negligence.
(4) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and to give notice of defects with the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognizable during our quality control in the random sampling procedure. If acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it shall depend on the extent to which an inspection 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 shall remain unaffected. Notwithstanding our duty to inspect, our notice of defect shall be deemed to have been given without undue delay and in good time if it is sent within 5 working days of discovery or, in the case of obvious defects, of delivery.
(5) Subsequent performance shall also include the removal of the defective goods and their re-installation, provided that the goods have been installed in another item or attached to another item in accordance with their nature and intended use; our statutory claim to reimbursement of corresponding expenses shall remain unaffected. The Seller shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.
(6) Notwithstanding our statutory rights and the provisions in para. 5 shall apply: If the Seller fails to meet its obligation to remedy the defect – at our option by remedying the defect (rectification) or by delivering an item free of defects (replacement) – within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the expenses required for this purpose or a corresponding advance payment. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without undue delay, if possible in advance.
(7) 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. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.
9. supplier recourse
(1) We shall be entitled to our legally determined recourse claims within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 BGB) without limitation in addition to the claims for defects. In particular, we shall be entitled to demand from the Seller exactly the type of subsequent performance (repair or replacement delivery) that we owe our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) shall not be restricted hereby.
(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2) and (3) of the German Civil Code [BGB]), we shall notify the Seller and request a written statement, briefly stating the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is brought about, 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.
(3) Our claims from supplier recourse shall also apply if the defective goods have been further processed by us or another entrepreneur, e.g. by incorporation into another product.
10. duty of notice and due diligence
(1) If we have informed the Seller about the intended use of the deliveries or services or if this intended use is recognizable for the Seller even without express reference, the Seller shall be obliged to inform us immediately if the deliveries or services of the Seller are not suitable for fulfilling this intended use
(2) The Seller shall notify us without undue delay in writing of any changes in the type of composition of the processed material or the constructive design or the manufacturing process compared to similar deliveries or services previously provided to us. The changes require our written consent.
(3) The Seller shall ensure that the deliveries and services comply with the REACH regulations, environmental protection, accident prevention and other occupational health and safety regulations, as well as all legal requirements applicable in the Federal Republic of Germany and shall inform us of any special treatment and disposal requirements not generally known with each delivery.
11. producer liability
(1) If the Seller is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause lies within its sphere of control and organization and it is liable itself in relation to third parties.
(2) Within the scope of its indemnification obligation, the Seller shall bear expenses in accordance with §§ 3 and 4. §§ 683, 670 of the German Civil Code (BGB), which arise from or in connection with a claim by a third party, including recall actions 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 shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 1.0 million per personal injury/property damage.
12. statute of limitations
(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.
(2) Notwithstanding § 438 para. 1 No. 3 BGB (German Civil Code), the general limitation period for claims based on defects is 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for claims in rem of third parties for surrender of goods (Section 438 (1) No. 1 of the German Civil Code (BGB)) shall remain unaffected; in addition, claims arising from defects of title shall in no case become time-barred as long as the third party can still assert the right against us – in particular in the absence of a limitation period.
(3) The limitation periods of the law on sales including the above extension shall apply – to the extent provided 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 (§§ 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.
13. data protection
14 Choice of Law and Place of Jurisdiction, Final Provisions
(1) The law of the Federal Republic of Germany shall apply to these GPC and the contractual relationship between us and the Seller to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The prerequisites and effects of the retention of title shall be governed by the law of the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective thereafter.
(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 place of business. The same shall apply if the Seller is an entrepreneur within the meaning of § 14 BGB. However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GPC or a prior individual agreement or at the general place of jurisdiction of the Seller. Overriding statutory provisions, in particular on exclusive responsibilities, shall remain unaffected.
(3) Insofar as the contract or these GPC contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GPC if they had been aware of the loophole.
(4) These AEB are written in German and English. In the event of any contradictions or difficulties of interpretation, the German text version of these AEB shall be solely authoritative. Translations are not legally binding.
Status of AEB: 01.01.2019