Suppliers: Terms and Conditions of Purchase (Status of 21.02.2020)
1. Quotations and orders, cancellations
1.2 The following Terms and Conditions of Purchase shall exclusively apply to orders. Any terms and conditions of the supplier that deviate from or supplement these Terms and Conditions of Purchase shall not be binding on us, even if we do not raise objections or the supplier declares that he only intends to deliver on his own terms and conditions.
1.3 Orders are legally binding for both parties if they are placed in writing on our order forms and confirmed by the supplier. We reserve the right to revoke the order if the order acceptance has not been received by us within 10 days from the date of the order. This shall also apply to Contract amendments after the conclusion of the Contract.
1.4 The complete transfer or subcontracting of the ordered deliveries and services to third parties requires our written consent.
1.5 We shall not bear the costs for insuring the goods, in particular the costs for a forwarding insurance. We are a prohibitory or waiver customer.
1.6 The supplier shall be responsible for ensuring compliance with any applicable statutory, safety or environmental regulations.
1.7 In the case of works or services, we reserve the right to terminate the Contract in whole or in part at any time until contractual performance, even if the supplier is not at fault. In such a case, the supplier is only entitled to invoice those deliveries and services, which he has verifiably provided up to that point.
2.1. The prices stated on our orders are fixed prices and shall apply free domicile, including packaging, transport and insurance.
2.2 If prices have not been agreed, the Contract shall only be concluded when the prices of the quotation have been confirmed by us in writing.
2.3 The prices are free place of performance.
3. Delivery, delivery period and delay
3.1 The agreed delivery date shall be binding. Advance deliveries are only permitted with our written consent. The timeliness of deliveries without assembly or installation shall be determined by the date of receipt at the shipping address which we have specified. The timeliness of deliveries with assembly or installation as well as the timeliness of services shall be determined by their provision in a condition that is ready for acceptance.
3.2 The weights, dimensions and quantities determined by our incoming goods inspection are crucial for the calculation of the delivery.
3.3 If the supplier is in default, we are entitled to demand a contractual penalty of 1% of the order value per week or part thereof, but no more than 5% of the order value. We reserve the right to demand the contractual penalty until the final payment has been made.
3.4 If the supplier repeatedly fails to meet delivery dates, we are entitled to terminate the Contract after issuing a warning.
4. Shipping, transfer of risk
4.1 Delivery items must be properly packed and shipped.
4.2 Each shipment must be accompanied by a delivery note. Empties that have not specifically marked on the delivery note shall become our property without invoicing.
4.3 On the day of shipment at the latest, a dispatch note with our order number as well as quantity and type details must be submitted.
4.4 Any packaging material and delivery pallets are taken back by the supplier at his own expense. We are entitled to return packaging material and delivery pallets to the supplier at the supplier’s expense.
4.5 Unless otherwise agreed, delivery must be made free of charge to Betzdorf main station as destination – registered self-collector – in the case of freight and express goods, free of charge to the company address or delivery address specified by us in the case of truck consignments, free of charge to a post office box or according to our shipping instructions in the case of postal consignments.
4.6 In the case of services as well as deliveries with installation or assembly, the risk transfer shall be upon acceptance; in the case of deliveries without installation or assembly, the risk transfer shall be upon acceptance by us at the place of destination named by us. DDP “place of destination” (INCOTERMS 2010) shall apply, with unloading being at the supplier’s expense and risk also in the case of deliveries to a third party.
4.7 Partial deliveries require our written consent.
5. Force majeure
Strikes, lock-outs, transport disruptions, natural disasters, official measures and other operational disruptions in our area, which lead to a restriction or cessation of production or prevent us from removing the ordered goods, shall release us from our obligation to accept delivery for the duration and to the extent of their impact, if we cannot avert the disruption or if it is not possible to avert it with reasonable means. Such delivery obstacles also entitle us to terminate the Contract. In these cases, any claims raised by the suppliers for consideration or compensation are excluded. If there is a delay in removing the goods for the above-mentioned reasons, the supplier must properly store the goods at his own risk until the goods are taken over by us or on our behalf.
6. Invoicing and payment, prohibition of assignment
6.1 Invoices must be sent by post by the 3rd of the month following the delivery at the latest. Incoming invoices can only be processed in the following month and only then can they be ordered for payment in accordance with the agreed terms of payment.
6.2 Unless otherwise agreed, payment shall be made by the 25th of the month following delivery, less 3% discount or 90 days net. Discounts may also be deducted in the event of offsetting or retention due to defects.
6.3 In the event of acceptance of an early delivery, the agreed date shall be considered the delivery date.
6.4 The supplier is not entitled to assign his claims against us or have them collected by third parties without our consent. This shall not apply if an extended reservation of title is effectively agreed by the supplier.
6.5 We are entitled to set-off and retention rights as well as the defence of non-performance of the Contract to the extent permitted by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims against the supplier arising from incomplete or defective performance. The supplier is only entitled to set-off and retention rights in the case of counterclaims that have been legally established or are undisputed.
7. Means of production, provision
7.1 Means of production such as models, samples, dies, tools, drawings etc., which are manufactured according to our specifications or are provided by us, may not be sold, pledged or otherwise passed on to third parties without our consent, nor may they be used in any other form for third parties. The same shall apply to items developed or further developed on our behalf and to items manufactured with the aid of the means of production. They shall be sent to us without our special request, unless we have agreed in writing to a different use.
7.2 The items of all kinds which we have provided to the supplier shall remain our property. They may only be used to provide the ordered goods and services.
7.3 Insofar as items provided by us are processed or reworked by the supplier to obtain a new movable item, we shall be considered the manufacturer. In the event of a combination or inseparable mixing with other items, we shall acquire co-ownership of the new object in proportion to the value that the items had at the time when the combination or mixing occurred. If the combination or mixing is carried out in such a way that the supplier’s items are to be regarded as the main item, it is understood that the supplier transfers the proportional co-ownership to us; the supplier shall safekeep the co-ownership for us.
8. Retention of title
8.1 The ownership of the delivered goods shall be transferred to us upon payment. Any extended or expanded reservation of title shall be excluded.
8.2 The supplier is aware that the goods ordered by us are generally transferred to our products by machining or processing. Therefore, any retention of title by the supplier shall lapse.
9. Defects of quality and title; repeated defaults
9.1 The supplier assures and guarantees that the goods comply with our specifications and other information such as standards and other documents, and he will check them for this before dispatch. In any case, the goods must comply with the generally accepted rules of technology, as well as the industrial safety and accident prevention regulations, as laid down in particular in EU directives, EU standards, DIN standards, VDE regulations and other recognised technical regulations. Test confirmations or certificates, such as those provided for in recommendations and guidelines (e.g. Pressure Equipment Directive 97/23/EC), must also be submitted with the delivery of the goods without our separate request.
9.2 In the normal course of business, we will check after receipt of the goods whether they correspond to the quantity and type ordered and whether any externally visible transport damages or defects are present. We are not bound by any deadlines for the notification of defects, neither regarding obvious nor hidden defects. Hidden defects shall entitle us to demand compensation for material used in vain and wages spent.
9.3 In and insofar as coordination with the supplier is no longer possible, we shall be entitled to have the defects rectified at the supplier’s expense or, if this is not possible, to obtain supplies from another supplier at the supplier’s expense.
9.4 In all other respects, the supplier shall assume the warranty for his delivery in accordance with the statutory provisions.
9.5 Goods not delivered in accordance with the Contract will be returned at the supplier’s expense and risk. If the deliveries are repeatedly not delivered according to the Contract, we are entitled to terminate the Contract after unsuccessful warning.
9.6 The supplier undertakes to indemnify us from all claims, irrespective of their legal basis, including those from the so-called producer liability, which are based on the violation of the rights of third parties by the item originating from the supplier.
9.7 The limitation period for our claims arising from or in connection with a defective delivery is 1 year, from the end of the year in which the delivery is made. This limitation period shall apply irrespective of whether the delivery item is normally used for a building and irrespective of whether the delivery item causes the defectiveness of the building. The period of limitation is suspended for that period which begins with the dispatch of our notification of defects and ends with the fulfilment of our claim for defects.
9.8 If the supplier provides essentially identical or similar deliveries or services in a defective or delayed manner after a written warning, we are entitled to terminate the Contract. In this case, our right to terminate the Contract also includes such deliveries or services which the supplier is obliged to provide to us in the future under this or another contractual relationship.
10. Information and due diligence obligations
10.1 If we have informed the supplier about the intended purpose of the deliveries or services, or if this intended purpose is recognisable to the supplier even without express reference, the supplier is obliged to inform us immediately if his deliveries or services are not suitable or may not be suitable for this intended purpose.
10.2 Any circumstances that endanger the adherence to agreed delivery times must be reported to us immediately in writing in order to clarify the further procedure.
10.3 The supplier must notify us immediately in writing of any changes in the type of composition of the processed material or in the constructional design compared with similar deliveries or services previously provided to us. Such changes require our written consent.
10.4 With each delivery, the supplier must inform us of any treatment and disposal requirements that are not generally known.
10.5 Any defects relevant to safety that are detected subsequently as a result of product observations must be reported to us without request, even after the warranty period has expired.
11. Spare parts and readiness for delivery
11.1 The supplier is obliged to supply spare parts for the period of normal technical use, but at least ten years after the last delivery of the delivery item under reasonable conditions.
11.2 If the supplier ceases to supply the spare parts after expiry of the period referred to in section 11.1 or ceases to supply the delivery item during this period, we must be given the opportunity to place a final order.
12. Blanket orders / call-off orders
We are only obliged to accept the goods regarding the time and the scope of the delivery to the extent that we have called off the goods in writing.
13. Property rights of third parties
The supplier guarantees us that no patents or other industrial property rights of third parties in Germany or abroad are infringed by his delivery and its usage by us. At our request, the supplier must indemnify us from all claims asserted by third parties arising from or in connection with an infringement of property rights, including the costs of our legal defence.
14.1 The supplier undertakes to keep secret any commercial and technical information and documents which are not generally known and which become known to him through the business relationship and to use them exclusively for the provision of the ordered delivery and service. Any sub-suppliers shall be obligated accordingly.
14.2 The supplier may only mention our company or our brands in references or publications if we have given our prior written consent.
15. Place of fulfilment
The place of fulfilment for all obligations of both parties is our registered office, unless otherwise agreed in writing.
16. Place of jurisdiction and applicable law
16.1 Exclusive place of jurisdiction for all disputes arising from or in connection with the supplier’s deliveries and services is the respective registered office of GHS Vakuumtechnik GmbH.
16.2 The law of the Federal Republic of Germany shall be applicable. The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) shall not apply.
17. Data protection
The supplier agrees that we may store company and personal data in the course of the business transactions.
18. Written form
We will confirm any changes and additions to the agreements in writing without delay.
19. Binding nature of the Contract / Legal validity of declarations
19.1 Should any provisions of this Contract including these General Terms and Conditions of Purchase or a future provision included in it be entirely or partially invalid or unenforceable or subsequently lose their legal validity or enforceability, the validity of the remaining provisions of the Contract shall not be affected. The same shall apply if it should turn out that the Contract contains a regulatory gap. In place of the invalid or unenforceable provisions or to fill the gap, an appropriate provision shall apply which, as far as legally possible, comes as close as possible to what the contracting parties intended or would have intended according to the meaning and purpose of the Contract, if they would have considered the point when concluding this Contract or when subsequently adding a provision.
19.2 Any legally relevant declarations made by the supplier, e.g. notices of termination, declarations of withdrawal or demand for compensation shall only be effective if they are made to us in writing.