Allgemeine Einkaufsbedingungen

(en anglais)

§ 1 Scope, differing terms and agreements, form

1. The present General Terms of Purchase (GTP) shall apply to all our orders placed with contractors and suppliers from whom we purchase products (“vendors”). The GTP shall only apply if the vendor is an entrepreneur (within the meaning of § 14 BGB (German Civil Code), a legal entity under public law or a public separate estate .
2. The GTP shall apply in particular to contracts for the sale and/or delivery of movable items (“goods”) - irrespective of whether the vendor manufactures the goods himself or purchases them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the GTP shall also apply in the version valid at the time of our order or, in any case, in the version last communicated to the vendor in writing, as a framework agreement for similar future contracts, without our having to refer to them again in each individual case.
3. These GTP shall apply exclusively. Any deviating, conflicting or supplementary General Terms and Conditions (GTC) of the vendor (e.g.: terms of sale or the like) shall only become an integral part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement for consent shall apply in any case, for example, even if we take receipt of the vendor's deliveries without reservation and/or unconditionally accept an order confirmation from the vendor in the knowledge of the vendor's general terms and conditions. Vendor’s terms in the latter’s GTC or confirmation of order are hereby expressly opposed for the sake of clarification.
4. Separate agreements made with the vendor in individual cases (including subsidiary agreements, supplements and amendments) shall at any rate take precedence over these GTP. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
5. Legally relevant declarations and notifications on the vendor’s part with regard to the contract (e. g. setting of a deadline, reminder, withdrawal) must be made in writing, i. e. in written or text form (e. g. letter, e-mail, fax). Legal formal requirements and other evidence, particularly in case of doubts regarding the legitimacy of the declarant, shall remain unaffected.
6. References to the validity of legal regulations are for the purposes of clarification only. The statutory provisions shall therefore also apply even without such clarification insofar as not directly amended or expressly excluded in these GTP.

§ 2 Contract conclusion

1. Our order shall be considered binding at the earliest on written placement or confirmation. The vendor shall draw our attention to obvious errors (e.g. typographical and calculation errors) as well as incompleteness of the order including the order documents for the purpose of rectification or completion prior to acceptance; otherwise the contract shall not be deemed concluded.
2. The vendor must confirm our order in writing within a period of three (3) days or execute it unconditionally by forwarding the goods (acceptance). Delayed acceptance shall be considered a new offer and shall require our acceptance.

§ 3 Delivery period, delayed delivery, flat-rate compensation for damages

1. The delivery period indicated by us in the order shall be binding. If the delivery period is not stated in the order and has also not been agreed otherwise, it shall be one (1) week as and from contract conclusion. The vendor shall undertake to notify us immediately in writing if likely to be unable – for any reasons whatsoever – to meet the agreed delivery periods.
2. If the vendor fails to perform within the agreed delivery period or is in default, our rights - in particular with regard to withdrawal from the contract and compensation for damages - shall be governed by the statutory provisions. The regulations in para. 3 shall remain unaffected.
3. If the vendor is in default, we shall be entitled - in addition to further legal claims - to demand flat-rate compensation for our damage incurred by delay in the amount of 0.2% of the net price per completed calendar day, but in total not more than 5% of the net price of the goods delivered late. We shall reserve the right to prove that greater damage has occurred. The vendor shall reserve the right to prove that no damage at all or only considerably less damage has occurred.

§ 4 Performance, delivery, transfer of risk and delayed acceptance

1. The vendor shall not be entitled to have third parties (e.g. subcontractors) perform the service owed without our prior written consent. The vendor shall bear the procurement risk for the latter’s services, unless otherwise agreed in individual cases (e.g. restriction to stocks).
2. Delivery within Germany shall be made “free to the door” to the place specified in the order. If the place of destination is not stated and no other agreement has been made, delivery is to be made to our registered office at Asselborner Weg 14 - 16, 51429 Bergisch Gladbach. The respective place of destination shall also be the place of performance for delivery and for any supplementary performance (obligation to provide).
3. The delivery must be accompanied by a delivery slip indicating the date (issue and shipping) and contents of the delivery (article number and quantity) in addition to our order identifier (date and number). If the delivery slip is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding shipping note with the same contents is to be sent to us separately from the delivery slip.
4. The risk of accidental loss and accidental deterioration of the merchandise shall be transferred on handing over at the place of performance. Insofar as acceptance has been agreed, it shall be decisive for the transfer of risk. Moreover, the statutory provisions of the law governing contracts for work and services shall apply accordingly in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to transfer or acceptance.
5. The statutory provisions shall apply for onset of our default of acceptance. If we fall in default of acceptance, the vendor can demand reimbursement of the latter’s additional expenses according to the statutory provisions (§ 304 BGB). If the contract relates to a non-fungible item to be manufactured by the vendor (individual construction), the vendor shall only be entitled to further rights if we have undertaken to collaborate and if we are responsible for the failure to collaborate.

§ 5 Prices and terms of payment

1. The price indicated in the order shall be binding. All prices are exclusive of statutory value added tax.
2. Unless otherwise agreed in individual cases, the price shall include all the vendor's services and ancillary services (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 shall be due for payment within 30 calendar days as and from complete delivery and service (including any agreed acceptance) as well as receipt of a proper invoice. If we effect payment within 14 calendar days, the vendor shall grant us a 3% discount on the net invoice amount. In case of bank transfer, payment shall be deemed to have been made in due time if our transfer order is received by our bank before the expiry of the payment period; we shall not be responsible for delays caused by the banks involved in the payment process.
4. We shall not owe any maturity interest. The statutory provisions shall apply for default of payment.
5. We shall be entitled to offsetting and retention rights in addition to a defence by reason of non-fulfilment of contract within the statutory limits. We shall in particular be entitled to withhold payments due for as long as we are entitled to outstanding claims against the vendor arising from incomplete or defective services.
6. The vendor shall only have an offsetting or retention right based on counterclaims that are undisputed or have been determined to be legally valid.

§ 6 Materials, secrecy, retention of title, repacking of delivered goods

1. We reserve all property and trademark rights over illustrations, plans, drawings, calculations, instructions for execution, product descriptions and other documents. Such documents shall be used exclusively for the contractual service and are to be returned to us on completion of the contract. The documents are to be kept secret from third parties and indeed even after the contract has ended. The duty to maintain secrecy shall only expire if and insofar as the knowledge contained in the surrenderedndocuments has become public domain.
2. The foregoing 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 vendor for manufacture. Such objects – insofar as they are not processed – are to be stored separately at the vendor’s expense and are to be insured to an appropriate extent against destruction and loss.
3. Processing, mixing or combining (further processing) by the vendor of objects provided shall be performed on our behalf. The same shall apply to 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. Transfer of ownership of the goods to us must be unconditional and without regard for payment of the price. If however in individual cases we accept a vendor's offer for transfer of ownership through payment of the purchase price, the vendor's reservation of title shall expire at the latest on payment of the purchase price for the delivered goods. Even before payment of the purchase price, we shall remain authorised to resell the goods in the ordinary course of business, subject to assignment in advance of the claim arising therefrom (in the alternative, application of simple retention of title extended to resale). This shall exclude all other forms of retention of title, particularly that which is extended, transferred and prolonged to further processing.
5. We shall reserve the right to repack delivered goods in our own product units and resell the latter as our own products under our own labelling (e. g. as joke and/or joke products).

§ 7 Defective delivery, warranty, exemption from third-party claims

1. The statutory provisions shall apply to our rights in the event of material defects and defects of title in the goods (including incorrect or short delivery as well as improper assembly and defective installation, operating instructions or operating manual) and in the event of other breaches of duty by the vendor, unless otherwise stipulated below.
2. In accordance with the statutory provisions, the vendor shall be liable in particular for ensuring that the goods have the agreed characteristics upon transfer of risk to us. The agreement on characteristics shall in any case be deemed to be those product descriptions that - in particular, by designation or reference in our order - are the subject matter of the respective contract or which are included in the contract in the same way as these GTP. It shall make no difference whether the product description originates from us, from the vendor or from the manufacturer.
3. Contrary to § 442 para. 1 clause 2 of the BGB (German Civil Code), we shall also be unrestrictedly entitled to claims for defects if the defect remained unknown to us at the time of conclusion of the contract through gross negligence.
4. The statutory provisions (§§ 377,381 of the HGB (German Commercial Code) shall apply to the commercial duty to inspect and give notice of defects subject to the following proviso: Our duty to inspect shall be limited to defects that come to light during our incoming goods inspection through 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. Insofar as acceptance has been agreed, there shall be no duty to inspect. In all other respects, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking account of the circumstances of the individual case. Our duty to give notice of subsequently discovered defects shall remain unaffected. Irrespective of our duty to inspect, our complaint (notification of defects) shall at any rate be deemed to be prompt and timely if sent within 10 working days as and from discovery or, in the case of obvious defects, as and from delivery.
5. If the vendor fails to meet the latter’s duty to render supplementary performance – at our option either by eliminating the defect (reworking) or by delivering a defect-free item (replacement delivery) – within a reasonable period set by us, we shall be entitled to eliminate the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the vendor. If supplementary performance by the vendor has proven unsuccessful or is unreasonable for us (e. g. due to special urgency, endangerment of operational safety or impending occurrence of disproportionate damage) no deadline shall be required; we shall inform the vendor of such circumstances without delay; if possible in advance.
6. Furthermore, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or withdraw from the contract in accordance with the statutory provisions. Moreover, we shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.
7. It is hereby made clear that any repacking of the delivered goods according to § 6 (5) shall not in any way affect the existence of our rights with regard to warranties for defects.
8. The vendor shall exempt us at our first request from all third-party claims asserted against us for defects or infringement of third-party property rights. Within this context, the vendor shall among other aspects undertake to reimburse the reasonable costs of a recall campaign.

§ 8 Manufacturer’s liability

1. If the vendor is responsible for a product defect, the vendor shall exempt us from third-party claims insofar as the cause is to be found within the vendor’s range of control and organisation and the vendor is liable externally.
2. Within the context of the vendor’s exemption obligation, the vendor shall reimburse expenses in accordance with §§ 683, 670 of the BGB arising from or in connection with a third-party claim including recall actions carried out by us. We will inform the vendor of the content and scope of recall measures – insofar as possible and reasonable – and give the vendor the opportunity to comment on the same. Any further legal claims shall remain unaffected.
3. The vendor shall subscribe and maintain product liability insurance with a flat-rate coverage level of at least 5 million EUR per personal injury/material damage claim.

§ 9 Limitation period

1. The reciprocal claims of the contracting parties shall fall under the statute of limitations in accordance with the statutory provisions, unless otherwise stipulated below.
2. Contrary to § 438 para. 1 no. 3 of the BGB, the general limitation period for claims for defects shall be 3 years as and from transfer of risk. Insofar as acceptance is agreed, the limitation period shall commence on acceptance. The 3-year limitationperiod shall also apply accordingly to claims arising from defects of title, whereby the statutory limitation period for third party claims for return (§ 438 para. 1 no. 1 of the BGB) shall remain unaffected; claims arising from defects of title shall not under any circumstances fall under the statute of limitations for as long as the third party can still assert the right against us - in particular due to a lack of limitation period.
3. The limitation periods of the law on sale of goods, including the above extension, shall apply – within the limits of the law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the ordinary statutory limitation period (§§ 195, 199 BGB) shall apply, if application of the limitation periods of the law on the sale of goods in individual cases does not result in a longer limitation period.

§ 10 Choice of law and place of jurisdiction

1. The Law of the Republic of Germany with exclusion of international uniform law, particularly the UN Convention on Contracts for the International Sale of Goods, shall apply to these GTP and the contractual relationship between us and the vendor.
2. If the vendor is a merchant as defined by the German Commercial Code, a legal entity under public law or a public separate estate, our registered office in 51429 Bergisch Gladbach shall be the sole - including international - place of jurisdiction for all disputes arising from the contractual relationship. The same shall apply accordingly if the vendor is an entrepreneur within the meaning of § 14 of the BGB. We shall however in all cases also be entitled to bring legal action at the place of performance (see above under § 4 para. 2) of the duty to deliver according to these GTP or of an overriding individual agreement or at the vendor’s general place of jurisdiction. Overriding statutory provisions, in particular with regard to exclusive responsibilities, shall remain unaffected.