General terms and conditions of purchase (GTCP)

 

General terms and conditions of purchase (GTCP) of Elried Markierungssysteme GmbH

 

Non-binding translation - only the German version is relevant.

 

1.   Scope, form

(1)  These General Terms and Conditions (hereinafter: GTCP) shall apply for all our business relationships with our business partners and suppliers (hereinafter: Sellers). These GTCP shall only apply if the Seller Contractor (Section 14 of the German Civil Code (BGB)) is a legal entity under public law or a special fund under public law.

(2)  These GTCP apply in particular for agreements (hereinafter also referred to as: Orders) concerning the sale and/or the delivery of movable goods (hereinafter also referred to as: Goods), without regard to whether the Seller manufactures the Goods themselves or purchases them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed the GTCP will apply as a framework agreement in the version valid at the time of the order or at least in the version that he has most recently been notified of in writing for similar future contracts without any requirement on our part to repeat reference to them in an individual case.

(3)  These GTCP shall apply exclusively. Seller’s deviating, contradictory or supplementary General Terms and Conditions shall only form a part of the agreement when and insofar as we expressly consent to their validity in writing. This requirement of consent applies in any event, for example even if we, being aware of the Seller's General Terms and Conditions execute delivery to them without reservation.

(4)  Individual agreements made with the Seller (including ancillary agreements, supplements and amendments), in particular delivery agreements, framework agreements and quality assurance agreements shall, in all events, have precedence over these GTCP. A written contract or our written confirmation is decisive, subject to proof of the contrary, for the content of such agreements.

(5)  Material declarations and notifications which are made to us by the Seller (e.g. deadlines, notifications of reminders, declarations on rescission) with respect to the contract require the written form (e.g. letter, email, fax). Statutory formalities and further verification remain unaffected in particular in the case of doubt concerning the authority of notifying person.

(6)  The Seller will treat information and documents received from us (e.g. offers, price lists, technical documents) in the strictest confidence and only pass these on or disclose these to third parties with our written consent.

(7)  References to the application of statutory provisions are for the purposes of clarification only. Therefore, the statutory regulations shall also apply without such a clarification insofar as these GTCP are not directly changed or are expressly excluded.

2.   Conclusion of contract

(1)  Our order shall be deemed to be bindingly agreed no earlier than upon written acceptance or written confirmation from the Seller. The Seller must inform us of obvious errors (e.g. typing or calculation errors) and incompleteness of the order including the order documents for the purposes of correction and/or completion prior to acceptance; otherwise the agreement will be deemed to not have been concluded.

(2)  The Seller must comply with our tender in his offer with respect to quantity, quality and execution. The Seller must inform us of any deviations from said tender. If the Seller’s offer is preceded by a call for tender by us the Seller must clearly affirm any deviations arising from this.

(3)  The Seller is held liable for confirming our order in writing within a period of 5 working days or in particular by sending the Goods without reservation (acceptance). Delayed acceptance shall be deemed to be a new offer and requires acceptance by us.

3.   Delivery period and delay in delivery

(1)  The delivery time we have specified in the order is binding. If the delivery time for the order is not specified and it has also not been agreed otherwise, it shall amount to 2 weeks after conclusion of contract. The Seller is obliged to inform us immediately in writing if he anticipates being unable to meet delivery times - irrespective of the reasons. The Seller is aware that we are committed to our customers to comply with firm delivery times.

(2)  If the Seller fails to render his service or does not render the service within the agreed delivery time or if he is behind schedule then our rights shall be determined in accordance with the statutory guidelines – in particular with respect to withdrawal and compensation. The provisions in para. 3 remain unaffected.

(3)  Should the Seller be behind schedule we can demand – in addition to further statutory entitlements - a flat reimbursement for damage caused by default in the amount of 1% of the net price per completed calendar week, however no more in total than 5% of the net price of the Goods delivered late. We reserve the right to prove that higher damages were incurred. The Seller is reserved the right to prove that no or only significantly less damage was incurred. If we accept the delayed service we will impose the contractual penalty no later than with the final payment.

4.   Performance, delivery, transfer of risk, delay in acceptance

(1)  The Seller shall not be entitled, without our prior written consent, to have third parties (e.g. subcontractors) carry out the service for which it is responsible. The Seller bears the risk for his services unless otherwise expressly agreed in individual cases (e.g. limited supply).

(2)  Partial and early deliveries shall only be permissible if we have expressly consented thereto in writing.

(3)  Delivery shall be made "carriage paid" within Germany to the location stated in the order. If the destination is not specified and if nothing else has been agreed upon the delivery shall be made to our registered office. The destination is also the place of performance for delivery and any subsequent performance (in the event of a debt to be collected at the creditor's address). Our packaging requirements are to be taken into account.

(4)  The delivery is to be sent with a delivery note stating the date (issue and despatch), contents of the delivery (item number and quantity) and our order identifier (date and number). If the delivery note is missing or is incomplete, we shall not be responsible for delays in processing and payment resulting from this.

(5)  The risk of accidental loss or accidental impairment shall be transferred to us upon delivery. If acceptance has been agreed this is definitive for the transfer of risk. In all other respects the statutory provisions governing contracts for work and services (Werkvertragsrecht) shall also apply to acceptance. The same applies to the handover or acceptance if we are in default with the acceptance.

(6)  The statutory regulations on default of acceptance shall apply. The Seller must, however, expressly offer its service even if a specific or definable calendar date has been agreed for an action or contribution on our part (e.g. issuing approval, etc.). In the event that we are in delay of acceptance then the Seller can demand compensation for his additional expenses in accordance with the statutory provisions (Section 304 German Civil Code (BGB)). If the agreement concerns the manufacture of specific items by the Seller (individual construction), the Seller shall only be entitled to assert additional rights if we have committed to our involvement and are responsible for ceasing our involvement.

5.   Prices and payment conditions

(1)  The price specified in the order is binding. All of the prices indicated are understood to include current, legally applicable VAT unless otherwise specifically stated.

(2)  Unless otherwise agreed in individual cases the price includes all services and ancillary services (e.g. assembly, installation) as well as all additional costs (e.g. proper packaging, transport costs including any transport and third party liability insurance. The Seller shall take back packaging material if requested to do so by us.

(3)  For each delivery the invoice must reflect all of the labelling required in the order and at least show the following: invoice number, invoice date, full name and address of the Seller, reference/order number, account data, tax number, invoice amount, quantity, VAT (if applicable).

(4)  The agreed price is due for payment within 30 calendar days from complete delivery and performance (including an agreed acceptance) as well as receipt of a proper invoice for payment. 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 transfers payment shall be considered to have been made in good time if our transfer instruction arrives at our bank prior to the expiry of the payment period; we are not responsible for delays caused by banks participating in the payment process.

(5)  We shall not be obliged to pay maturity interest. The statutory regulations on payment default shall apply.

(6)  We shall be entitled to rights to offset and retention as well as a plea of non-performance of the agreement to the extent permitted by law. In particular we shall be entitled to retain due payments as far as we are still entitled to assert claims against the Seller arising from incomplete or defective services.

(7)  The Seller shall have a right to offset or retention only in the event of res judicata or undisputed counterclaims.

6.   Non-disclosure, retention of title

(1)  We reserve all property rights and copyrights to illustrations, plans, drawings, calculations, executive instructions, product descriptions and other documents. Such documents are exclusively to be used for contractual performance and are to be returned to us after the completion of the contract. The documents must not be disclosed to third parties, including after termination of the contract. The non-disclosure obligation shall only expire if and to the extent the confidential information becomes publicly known.

(2)  The above provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and half-finished products) as well as to tools, templates, samples and other items, which we provide to the Seller for manufacture. Such items - insofar as they are not processed - must be stored separately by the Seller at its expense and adequately insured against destruction and loss.

(3)  Processing, mixing or combination (further processing) of supplied items shall be carried out by the Seller for us. The same applies for further processing of the delivered Goods by us so we shall be regarded as the manufacturer and shall acquire ownership of the product no later than with the further processing in accordance with the statutory provisions.

(4)  The transfer of ownership of the Goods to us shall take place irrespective of payment of the price. However if we in individual cases accept a conditional offer of transfer of ownership from the Seller based on the purchase price received, the Seller’s reservation of title shall expire no later than upon receipt of the purchase price for the delivered Goods. We remain authorised to resell Goods during the course of normal business even before payment of the purchase price subject to advance assignment of the claim arising therefrom (alternatively assertion of simple prolonged reservation of title based on the resale). All other forms of reservation of title are thereby excluded in any case, in particular the extended, transferred and prolonged reservation of title due to the further processing.

7.   Quality management, auditing, right of access

(1)  The Seller undertakes to use, maintain and at our request provide proof of an appropriate quality management system in the course of service provision covered by the agreement. We have the right to convince ourselves of the quality capabilities of the Seller by means of system, process and/or product audits. The Seller shall also commit his subcontractors to follow the requirements of this section.

(2)  The Seller grants us, our customers and overarching institutions and authorities the right to carry out audits at the Seller’s place of work and also the right of access to the impacted areas of his establishment and to the relevant documented information at every supply chain level.

8.   Defective delivery

(1)  The statutory regulations apply for our rights in the event of material defects or defects of title of the goods (including incorrect supplies and shortfalls as well as incorrect assembly or faulty assembly or operating instructions) and in the event of other breaches of duty by the Seller insofar as nothing is stated to the contrary below.

(2)  In accordance with the statutory provisions the Seller shall be liable in particular for ensuring that the Goods are of the agreed quality upon transfer of risk to us. In any case, those product descriptions that are the subject matter of the respective contract or incorporated in the contract in the same way as these GTCP - in particular due to identification or reference in our order shall be valid as an agreement on the properties and condition. It makes no difference whether the product description originates from us, from the Seller or from the manufacturer.

(3)  Notwithstanding Section 442 para. 1 page 2 German Civil Code (BGB) we shall even be entitled to unrestricted warranty claims if the defect remains unknown to us upon conclusion of contract as a result of gross negligence.

(4)  The commercial duty to examine and to notify defects shall be governed by the statutory provisions (Sections 377 and 381 German Commercial Code (BGB)), save that the duty to inspect is limited to defects that are obvious upon visual inspection of the incoming goods, including the delivery documents, or upon spot checks during quality control procedures (e.g. transport damage, wrong deliveries and short deliveries). If acceptance has been agreed there is no inspection obligation. Moreover it depends on the extent to which an inspection is feasible, taking into account the circumstances of the individual case. Our requirement to give notice regarding defects at a later time shall remain unaffected. Notwithstanding our duty to inspect, our complaint (notice of defect) shall be deemed to be without delay and timely if it is sent within 5 working days from discovery or, in the case of obvious defects, from delivery.

(5)  Development and re-installation of the defective Goods are also included as part of subsequent performance provided that the Goods are installed in another item or are attached to another item in accordance with their intended purpose; our statutory claim for compensation for appropriate expenses remains unaffected. The expenses which are necessary for the purpose of inspection and subsequent performance, shall be borne by the Seller even if it becomes apparent that there was no actual defect. In the event of unjustified requests to remedy defects our liability for damages remains unaffected; in this respect, however, we shall only be liable if we have recognised or not recognised due to gross negligence that there was no defect.

(6)  Without prejudice to our legal rights and the provisions in para. 5 the following applies: If the Seller fails to fulfil his obligation to provide subsequent performance at our choice by remedying the defect (rectification) or by delivery of an item free of defects (replacement delivery) - within a reasonable time limit as set by us, we shall be able to remedy the defect ourselves and demand compensation from the Seller for the expenses necessary for this or an appropriate advance payment. If the subsequent performance by the Seller is unsuccessful or unreasonable for us (e.g. due to particular urgency, a risk to operational reliability or the imminent risk of unreasonably high losses) no deadline needs to be set; the Seller is to be notified immediately, if possible in advance.

(7)  Moreover, in accordance with the statutory provisions, we are entitled to demand a reduction in the purchase price or withdraw from the contract in the event of a defect in quality or defect in title. We also have a right to claim damages and to the reimbursement of expenses in accordance with the statutory provisions.

9.   Supplier recourse

(1)  In addition to the warranty claims, we shall have unrestricted entitlement to our legally determined rights of recourse within a supply chain (regress against suppliers in accordance with Sections 445a, 445b, 478 German Civil Code (BGB)). In particular, we are entitled to demand the precise nature of the subsequent performance (repair or replacement delivery) from the Seller, which we owe to our Customer in the individual case. Our statutory right to choose (Section 439 para. 1 German Civil Code (BGB) is not restricted by this.

(2)  Before we recognise or fulfil a claim for defects asserted by our Customer (including reimbursement of expenses in accordance with Sections 445a para. 1, 439 paras. 2 and 3 German Civil Code (BGB)) we will inform the Seller and, giving a brief description of the facts of the case, will request a written statement. If a substantiated statement is not provided within an appropriate time period and no amicable solution can be found, the claim for defects effectively allowed by us is regarded as owing to our respective Customer. Counter evidence in this case shall be incumbent upon the Seller.

(3)  Our claims for supplier recourse also apply if the defective Goods are processed by us or another contractor e.g. by installing it in another product.

10. Duty of notification and due diligence

(1)  If we have informed the Seller of the intended use of the deliveries or services or if this intended purpose is apparent for the Seller without being expressly advised of it, the Seller shall be obliged to inform us immediately if the Seller’s deliveries or services are not suitable to fulfil this intended purpose

(2)  The Seller must inform us immediately in writing of any changes to the composition or the constructional design or manufacturing process in comparison with previous deliveries and services of the same type. Amendments will require our written consent.

(3)  The Seller has to ensure that the deliveries and services comply with the REACH requirements, environmental protection, accident-prevention and other industrial safety regulations and the technical safety rules and meet all legal requirements applicable in the Federal Republic of Germany and inform us of specific, not generally known treatment and waste disposal requirements for every delivery.

11. Manufacturer’s liability

(1)  Where the Seller is liable for product damage, it shall hold us harmless in respect of third-party claims insofar as the cause lies within its area of control and organisation and that the Seller is themselves liable in relation to third parties.

(2)  The Seller's obligation to indemnify us shall encompass reimbursement of any costs and expenses in accordance with Sections 683, 670 German Civil Code (BGB) that arise out of or in connection with any recourse taken by third parties including for recall campaigns carried out by us. We will inform the Seller of the content and scope of the recall measures to be performed - to the extent possible and reasonable - and allow him the opportunity for comment. Additional statutory claims remain unaffected.

(3)  The Seller is obligated to take out and maintain product liability insurance covering a sum insured that is at least EUR 1 million per person for personal injury / damage to property.

12. Limitation period

(1)  The reciprocal claims of the parties to the contract are in accordance with the provisions of the law unless otherwise agreed below.

(2)  Notwithstanding Section 438 para.1 No.3 of the German Civil Code (BGB), the general limitation period for claims for material defects and defects of title is 3 years from the transfer of risk. If acceptance has been agreed, the limitation period begins with the acceptance. The three year limitation period shall also apply mutatis mutandis for claims arising out of defects in title whereby the statutory limitation period for claims in rem by third parties (Section 438 para. 1 No. 1) for the restitution of property remain unaffected. Claims on the grounds of legal defects shall not become time-barred as long as the third party can assert the right against us - in particular in the absence of limitation.

(3)  The limitation periods of sales law including the aforementioned extensions apply within the statutory limits for all contractual claims for defects. If a defect also entitles us to assert non-contractual compensation claims, the standard statutory period of limitation (Sections 195 and 199, BGB) shall apply unless other statutory periods of limitation result in a longer period in the individual case.

13. Data protection

We take the protection of personal data very seriously, in particular in accordance with the provisions of the GDPR and Federal Data Protection Act. Specific details and information in this respect are listed on our website under the “Data protection” menu within the privacy statement which can be retrieved there.

14. Governing law and jurisdiction, final provisions

(1)  For these GTCPs and the contractual relationship between us and the Seller the law of the Federal Republic of Germany will apply to the exclusion of uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and consequences of the reservation of title are subject to the law of the respective location of the item, if under that law, the choice of German law would be inadmissible or invalid.

(2)  If the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a separate property under public law, the exclusive, including international, the place of jurisdiction for all disputes arising directly or indirectly as a result of this contract is our registered office. The same applies if the Seller is a Contractor within the meaning of Section 14 BGB. We will be entitled, however, to take legal action at the place of performance of the delivery obligation in accordance with these GTCPs or an individual agreement, which takes precedence or at the Seller’s general place of jurisdiction. Statutory provisions which take precedence, in particular those concerning exclusive jurisdiction remain unaffected.

(3)  To the extent that the contract or these GTCP contain loopholes in the arrangements, it is agreed that the legally valid provisions that would have governed the parts of the contract by applying the economic objectives of the contract and the purpose of these GTCP, had they been aware of these loopholes in arrangements, shall apply to close these loopholes.

(4)  These GTCP are drafted in both German and English language. In the event of contradictions or interpretative problems only the German version of these GTCP will be definitive. Translations are not legally binding.

Last updated: 01/01/2019