§ 1 Scope of application - written form
(1) Our Terms and Conditions of Procurement apply exclusively to all present and future business relationships; Supplier’s terms and conditions contradicting or deviating from our Terms and Conditions of Procurement, to which it must make express reference in writing, shall only apply if we have expressly approved their applicability in writing. Our Terms and Conditions of Procurement shall apply if we accept Supplier’s delivery/service without reservations despite knowledge of contradictory, supplementing terms and conditions or ones deviating from our terms and conditions.
(2) Individual agreements made with Supplier in a single case (including side-agreements, addenda and amendments) shall in any case prevail over the present Terms and Conditions of Procurement. A written agreement or our written confirmation, as the case may be, shall be decisive for the contents of such agreement, subject to a counter-proof.
(3) Verbal agreements and other declarations and notifications of legal significance to be made to us by Supplier following conclusion of the agreement (e.g. setting of periods, reminders, declaration of withdrawal) shall require our written confirmation in order to take effect. This shall also apply to a cancellation of the requirement of written form.
(4) References to the validity of statutory directives shall only have a clarifying meaning. Therefore, the statutory directives shall apply even without clarification to the extent that they are not directly amended or expressly ruled out in the present Terms and Conditions of Procurement.
§ 2 Conclusion – supply – delivery data, arrears and quantity
(1) Supplier shall be required to confirm our order in writing within 5 working days from the date of order (acceptance). Delayed acceptance shall be deemed a new quotation and shall require acceptance by us.
(2) The contractual content stated in the order / commission, including the delivery date, shall be binding. Deviation from this contractual content/delivery date by Supplier shall only become binding if we have expressly agreed to it in writing. Receipt of the goods/service at the place of receipt (destination) stated by us shall be decisive for compliance with the delivery date.
(3) If the destination has not been stated and nothing to the contrary agreed, supply shall be to our factory in Siegen. The destination in question shall also be place of performance for delivery and all and any subsequent performance (obligation to provide).
(4) To the extent not agreed expressly or in writing to the contrary, all supplies shall always be at Supplier’s risk and expense (“franco domicile”) to our factory in Siegen or any other location determined by us.
(5) A delivery note stating the date (issue and dispatch), contents of the supply (article number and quantity) and our order identification (date and number) shall be enclosed with the supply. If the delivery note is missing or incomplete, we shall not be answerable for delays in processing and payment resulting therefrom. A matching notification of dispatch with the same contents shall be sent to us separate from the delivery note.
(6) Supplier shall be obliged to notify us in writing without delay if circumstances occur or become recognisable for it from which it can be seen that the delivery date can prospectively not be complied with.
(7) In the event of arrears in delivery, the claims from the current German laws at the time in question shall accrue to us. In particular, we shall be entitled to demand damages in addition to the service or withdrawal from the contract after a fruitless expiry of a suitable period. If we also demand damages, the right to prove that it is not answerable for the breach of duty shall accrue to Supplier. If Supplier fails to render its service or not within the agreed delivery period or if it falls into arrears, our rights – in particular to withdrawal and damages – shall be determined according to the statutory directives.
(8) If excess or short delivery cannot be avoided with mass articles in special production, it shall only be admissible up to 5%. In such a case, we shall expect an early written notification of the delivery quantity.
§ 3 Qualities, dimensions and weights
(1) Weights, piece numbers, quantities, qualities and dimensions of the material supplied by us shall exclusively be determined according to German material standards (DIN and others) or the other directives valid at the time; deviations shall be admissible within the framework of said directives.
(2) Car registration plates or car registration blanks: the quality of the goods delivered fulfils ISO 7591 (version valid at the time of production), unless a different quality standard has been agreed relative to the order. The dimensions and approval diagram which Supplier has produced for each type of car registration or blank and the correctness of which we confirm to Supplier before the start of production shall apply. Approval diagrams confirmed by us shall maintain their validity for subsequent orders (repeat orders) unless they have been replaced by a new diagram approved by us.
§ 4 Prices - payment terms
(1) The price stated in the order shall be binding. All prices shall be understood inclusive of statutory turnover tax if the latter has not been stated separately.
(2) If not agreed to the contrary in the individual case, the price shall include all services and subsidiary services by Supplier (e.g. assembly, installation) and also all subsidiary costs (e.g. proper packaging, costs of transport including possible transport and liability insurance).
(3) The agreed price shall be due for payment within 30 calendar days of complete supply and service (including any acceptance agreed) and also receipt of a proper invoice. If we provide payment within 14 calendar days, Supplier shall grant us 3% discount on the net amount of the invoice. In the event of a bank transfer, payment shall have been made in good time if our transfer order reaches 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 maturity interest. The statutory directives shall apply to arrears in payment.
(5) We can only process invoices if - in accordance with the requirements in our order - they state the order number quoted there and our required article numbers; Supplier shall be liable to payment of all costs resulting from a failure to comply with this duty, unless it proves that it is not answerable for them.
(6) Our payments shall not mean acknowledgment of the supply or service as being contractual. Our right to notify defects and our claims from defects in quality shall not be impaired by any payment possibly already made. Rights to offset and retention as well as the objection of unfulfilled contract shall accrue to us to the statutory scope. We shall in particular be entitled to withhold due payments as long as claims still accrue to us against Supplier from incomplete or defective services.
(7) Offsetting against counterclaims or exercising of a right of retention by Supplier against all and any claims of our house shall only be admissible if the counterclaim is undisputed or legally effective. Assignment of Supplier’s claims against us to third parties shall require our express, written approval.
§ 5Defects - liability for defects - notification duty
(1) The goods to be supplied or services to be rendered must be contractual, fulfil the purpose and be flawless and also fulfil the acknowledged rules of engineering, the relevant safety directives and the agreed technical requirements. Reference to technical standards shall serve the description of the service and shall be understood as a guarantee of properties.
(2) The statutory directives shall apply to our rights from defects in title and quality of the goods (including wrong and short delivery as well as improper assembly, defective assembly, operating or use instructions) and to other breaches of duties by Supplier, to the extent that nothing to the contrary has been determined below.
(3) According to statutory directives, Supplier shall in particular be liable for the fact that the goods have the agreed property upon passage of risk to us. As an agreement on the property, the product descriptions which are the subject matter of the agreement in question or are incorporated into the agreement in the same way as the present terms and conditions of procurement - in particular by designation or reference in our order - shall apply. In this context, it shall not make any difference whether the product description comes from us, from Supplier or from a third party.
(4) As a deviation from § 442 subsection 1 sentence 2 German Civil Code, claims from defects shall accrue to us without limitation even if the defect remained unknown at the conclusion of the contract as a result of gross negligence.
(5) The statutory directives (§§ 377, 381 German Commercial Code) shall apply to the commercial duty to examination and notification with the following proviso: our duty to examination shall be limited to defects which are obvious in our examination of incoming goods with external inspection, including the delivery papers, and in random checks in our quality control (e.g. transport damage, wrong and short supply). To the extent that an acceptance has been agreed, no duty to examination shall exist. In addition, it shall be a question of the extent to which an examination is sensible taking the circumstances of the individual case according to the proper course of business into due account.
(6) Our duty to examination for defects discovered later shall remain unaffected. In all cases, our notification (notification of defects) shall be deemed without delay and punctual if it reaches Supplier within 5 working days of receipt of the goods.
(7) The costs incurred by Supplier for the purpose of examination and subsequent performance (including possible costs of removal and installation) shall be borne by it even if it is seen that no defect actually existed. Our liability for damages in the event of an unjustified request for remedying of defects shall remain unaffected; to this extent, we shall however only be liable if we have recognised or failed to recognise by gross negligence that no defect existed.
(8) If Supplier fails to comply with its duty to subsequent performance – at our choice by remedying of the defect (after-work) or by supply of a defect-free object (replacement delivery) – within a suitable period set by us, we can remedy the defect ourselves and demand reimbursement of the expenditure necessary herefor or a matching advance payment. If subsequent performance by Supplier has failed or cannot be reasonably expected of us (e.g. due to specific urgency, jeopardising operational safety or a threat of disproportionate damage), setting a period shall not be necessary; we shall notify Supplier of such circumstances without delay, if possible beforehand.
(9) In addition, we shall be entitled to reduce the purchase price and to withdraw from the contract according to the statutory directives if a defect in quality or title exists. We shall also have a claim to indemnification and reimbursement of expenditure according to the statutory directives.
§ 6 Recourse against Supplier
(1) Our claims to recourse within a supply chain determined by law (recourse against Supplier pursuant to §§ 478, 479 German Civil Code) shall accrue to us without limitation alongside the claims from defects. We shall in particular be entitled to demand precisely the kind of subsequent performance (after-work or replacement delivery) from Supplier which we owe our customer in the individual case. Our statutory right of choice (§ 439 subsection 1 German Civil Code) shall not be limited.
(2) Before we acknowledge or fulfil a claim from defects being made by one of our customers (including reimbursement of expenditure pursuant to §§ 478 subsection 2, 439 subsection 2 German Civil Code), we shall inform Supplier and request written comments, giving a brief portrayal of the facts of the matter. If the comments are not made within a suitable period of time and if no amicable solution is reached, the claim from defects actually granted by us shall be deemed owed to our customer; in such a case, Supplier shall be liable for counter-proof.
(3) Our claims from recourse against Supplier shall apply even if the goods have been further processed before their sale to a consumer by us or by one of our customers, e.g. by integration into another product.
§ 7 Product liability - indemnification - liability insurance coverage
(1) If Supplier is responsible for product damage, it shall be obliged to indemnify us against third parties’ claims to damages insofar as the cause is located in its area of control and organisation and it is liable itself in the external relationship.
(2) Within its framework of liability for damage in the sense of subsection (1), Supplier shall additionally be obliged to reimburse all and any expenditure pursuant to §§ 683, 670 German Civil Code resulting from or in connection with a claim made by third parties, including a recall action implemented by us. To the extent possible and reasonably to be expected, we shall notify Supplier of the recall measures to be carried out and give it an opportunity of commenting. Our other statutory claims shall remain unaffected.
(3) Supplier undertakes to maintain an operational and product liability insurance with a sum insured which is suitable according to the scope of the business relationships and the specific liability risk. If further-reaching claims to damages accrue to us, they shall remain unaffected.
§ 8 Property rights
(1) Supplier shall vouch for the fact that no third parties’ rights are breached in connection with its supply.
(2) If claims are made against us by third parties for this reason, Supplier shall be obliged to indemnify us against these claims.
(3) Supplier’s indemnification duty shall relate to all expenditure necessarily incurred by us from or in connection with the claim made by a third party.
If the goods supplied manifest a product error in the sense of the German Product Liability Act, Supplier shall also be obliged to reimburse us for all and any expenditure incurred from or in connection with a recall action implemented by us.
§ 9 Export control and customs
(1) Supplier shall be obliged to notify us in its business documents about all and any approval duties for (re-) exports of its goods according to German, European, US export and customs directives and the export and customs directives of the state of origin of its goods. For this, Supplier shall state the following information for the items in question in its price lists, quotations, order confirmations and invoices:
the export list number according to Annex AL to the German foreign trade regulations, European Annex IV to the EC Dual Use Regulations, European Annex I or comparable list items of relevant export lists, for US goods the ECCN (Export Control Classification Number) according to US Export Administration Regulations (EAR),
the trade policy origin of its goods and of the components of its goods, including technology and software,
the statistical goods number (HS code) of its goods and
a contact partner in its enterprise for clarification of all and any inquiries from us.
(2) Supplier shall be obliged to notify us of all foreign trade data for its goods and their components in writing and to inform us in writing without delay (before supply of goods affected) about all changes to the aforementioned data.
(3) Supplier shall send us the necessary declarations on export control completely filled it, with the necessary documentation and signed.
(4) Products subject to specific export terms shall be reported in advance with a statement of the list on which they have been stated (German export list, European Annex I, European Annex IV to the EC Dual Use Regulations, or comparable list items of relevant export lists).
(5) Supplier guarantees that the information provided in the declaration on export control is complete and correct. If changes result in the future with a view to the objects of delivery, also changing the export control law classification of the goods, Supplier shall notify us of said changes without delay.
(6) Supplier shall indemnify us against all claims or other sanctions made against us on the basis of breaches against export control law in connection with the objects of delivery.
§ 10 Retention of title - provision - tools - non-disclosure
(1) If we provide substances and materials to Supplier for production, they shall remain our property. Processing, blending or combination (further processing) of provided objects by Supplier shall exclusively be done on our behalf. The same shall apply to further processing of the supplied goods by us, with the result that we are deemed manufacturer and acquire ownership to the product no later than further processing according to the provisions of the statutory directives. The objects provided may only be used for the agreed purpose and shall be kept separately at Supplier’s expense and insured against destruction and loss to a suitable extent as long as they are not processed. At the same time, Supplier here and now assigns all claims to indemnification from this insurance to us; we hereby accept said assignment.
(2) Transfer of ownership of the goods to us shall be unconditional and without regard for payment of the price. But if we accept an offer by Supplier for transfer of ownership conditional to payment of the purchase price in the individual case, Supplier’s retention of title shall expire no later than payment of the purchase price for the goods supplied. In the ordinary course of business, we shall remain authorised to resell the goods even before payment of the purchase price with advance assignment of the claim resulting herefrom (alternatively application of the simple retention of title extended to resale). Thus, in any case, all other forms of retention of title have been ruled out, in particular extended, forwarded retention of title and also with extension to further processing.
(3) We reserve title to tools, templates, samples and other objects which we provide to Supplier for manufacture; Supplier shall be obliged to use said objects exclusively for the manufacture of the goods ordered by us and additionally to insure them against destruction and loss to a suitable extent at its own expense. At the same time, Supplier here and now assigns all claims to indemnification from said insurance to us; we hereby accept said assignment. Supplier shall be obliged to carry out all and any necessary maintenance and inspection work as well as all maintenance and upkeep work on our tools in good time at its own expense. Supplier shall notify us without delay of all and any impairments of function of the tools.
(4) To the extent that the collateral accruing to us according to the above subsections exceeds the agreed and due price of all conditional commodities of a supplier not yet paid for by us by more than 10%, we shall be obliged to release the collateral at our choice by request of said supplier.
(5) Supplier shall be obliged to keep all illustrations, diagrams, calculations and other documents and information received from us strictly secret and to pay precise attention to our copyrights. They may only be disclosed to third parties with our express prior consent in writing. The non-disclosure duty shall also survive the handling of the present agreement; it shall expire when and insofar as the production knowledge contained in the illustrations, diagrams, calculations and other documents provided has become public domain.
(6) All documents received in the above sense - including all and any reproductions, whatever the form - shall be returned to us entirely and completely without specific request following handling of the order / commission. Before this, they may solely be used for manufacture on the basis of our order / commission.
§ 11 Special right of termination in financial collapse
If a contracting party fails to comply with its payment and/or supply or service duties in good time or if even insolvency proceedings are applied for against its assets, we shall be entitled to terminate the agreement without notice.
§ 12 Barring by limitation
(1) The contracting parties’ mutual claims shall be barred according to the statutory directives to the extent not determined to the contrary below.
(2) As a deviation from § 438 subsection 1 no. 3 German Civil Code, the general period of barring for claims from defects shall be 3 years from passage of risk. To the extent that acceptance has been agreed, barring shall commence upon acceptance. The 3-year period of barrimg shall also apply accordingly to claims from defects in title, in which context the statutory period of barring for in rem claims to return by third parties (§ 438 subsection 1 no. 1 German Civil Code) shall remain unaffected; claims from defects in title shall additionally not be barred in any case as long as the third party can still claim against us – in particular due to a lack of barring by limitation.
(3) The periods of barring in commercial law including the aforementioned extension shall apply to all contractual claims from defect to the statutory extent. To the extent that extra-contractual claims to damages also accrue to us due to a defect, regular statutory barring shall apply hereto (§§ 195, 199 German Civil Code), unless application of the periods of barring in commercial law leads to a longer period of barring in the individual case.
§ 13 Place of jurisdiction - choice of law
(1) To the extent that Supplier is a merchant in the sense of the German Commercial Code, a public-law entity or a public-law fund, the exclusive place of jurisdiction for all disputes resulting from the contractual relationship shall be our registered office. The same shall apply if Supplier/the entrepreneur does not have a general place of jurisdiction in Germany or its registered office or customary abode, as the case may be, is not known at the time of the initiation of judicial steps.
(2) These Terms and Conditions and the contractual relationship between us and Supplier shall exclusively be governed by the law of the Federal Republic of Germany, expressly ruling out international uniform law, in particular UN purchase law.