General Terms of Delivery of TEKON Prüftechnik GmbH
1.1. These General Terms of Delivery apply only to companies as defined by Section 14 of the German Civil Code (BGB), legal entities under public law, and special funds under public law.
1.2. All our deliveries and services are based on these General Terms of Delivery and any separate contractual agreements, regardless of whether we manufacture the goods and/or provide the services ourselves or whether this is done by third parties commissioned by us.
1.3. Our General Terms of Delivery apply exclusively. Deviating, contrary or supplementary general terms and conditions of purchase on the part of the customer shall not become part of the contract even as a result of the order being accepted unconditionally, or through delivery or performance.
1.4. Legally relevant declarations and notifications of the customer in relation to the contract (e.g. setting of a deadline, notification of defects, withdrawal, or reduction) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory requirements as to form and further evidence, particularly in the event of doubts about the credentials of the party making the declaration, remain unaffected.
1.5. We reserve property rights and copyrights in respect of samples, cost estimates, drawings and the like, and information of a physical or non-physical nature – including in electronic form – none of which is permitted to be made accessible to third parties.
2. Offer and contract conclusion
2.1. Our offers are subject to change and non-binding unless they are expressly designated as binding offers. This also applies if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, computations, calculations, and references to DIN standards), or other product descriptions or documents, including in electronic form.
2.2. By placing an order for the goods or services, the customer shall be deemed to have made a binding offer of a contract. Unless otherwise stated in the purchase order, we are entitled to accept this offer of a contract within ten days of its receipt by us.
2.3. Our written order confirmation is decisive for the conclusion of the contract. If the customer has any objections to the content of the order confirmation, the customer must object to it immediately. Otherwise, the contract shall be concluded in accordance with the order confirmation.
3.1. The prices stated in the order confirmation are authoritative. These prices are ex works and do not include packaging, freight, postage, insurance, customs duty, assembly, other expenses, and statutory VAT.
3.2. If, after conclusion of the contract and until execution of the order, cost increases occur that are unforeseeable for us, e.g. due to an increase in wages or material costs, or the introduction of or substantial increase in taxes or customs duties, we shall be entitled to adjust the prices within the scope of the changed circumstances and without calculating any additional profit. This shall not apply if we deliver the goods late.
4. Payment terms
4.1. Our invoices are payable on the terms specified by us in the offer or order confirmation. Old payments must be effected free of charges for us. If we grant a discount, this shall only apply if all previous invoices to the customer have been settled. The following payment terms apply unless otherwise agreed: 2% discount for payments within 14 days after receipt of invoice, otherwise 30 days net.
4.2. Even within the framework of an ongoing business relationship, we are entitled at any time to carry out a delivery in whole or in part only against advance payment. We shall declare a corresponding proviso when confirming the order, at the latest.
4.3. Bills of exchange and checks shall only be accepted for the purpose of payment by express agreement. Discount charges and other costs must be borne by the customer.
4.4. The legal consequences of delayed payment by the customer shall be determined by law, in particular by Section 288 BGB.
5. Delivery period, delayed delivery
5.1. Compliance with agreed deadlines for deliveries is conditional upon the timely receipt of all documents, and necessary permits and releases to be supplied by the customer, especially plans, and compliance with the agreed terms of payment and other obligations on the part of the customer. If these requirements are not met in time, the deadlines shall be extended appropriately; this shall not apply if we are responsible for the delay.
5.2. If we are unable to comply with binding delivery periods for reasons, for which we are not responsible (unavailability of goods or services), we shall inform the customer of this without undue delay and simultaneously indicate the expected new delivery period. If the goods or services are also unavailable within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part, and shall reimburse any consideration already provided by the customer without undue delay. Force majeure or the failure by our supplier to provide timely deliveries shall, in particular, be considered instances where goods or services are unavailable in this sense if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in individual cases.
5.3. The occurrence of a delay in delivery shall be determined in accordance with the statutory provisions. However, a reminder from the customer is required in all cases.
6. Transfer of risk
The risk of accidental loss and accidental deterioration shall pass to the customer when the delivery leaves our factory. We shall insure the products against any transport damage or loss at the request of the customer.
7. Material defects
We are liable for material defects as follows:
7.1. All parts or services showing a material defect within the period of limitation – regardless of their service life – must be repaired, replaced or provided again free of charge at our discretion, provided that the cause of the defect already existed when the risk was transferred. Products such as test pins and test modules that are subject to wear and tear depending on the intensity and duration of use are excluded from the warranty. This applies in particular to damage and malfunctions caused by normal wear and tear or by failure to comply with requirements regarding the treatment, maintenance, and care of the products.
7.2. Claims for defects by the customer are conditional on the customer having complied with his/her statutory obligations to examine and give notice of defects (Sections 377 and 381 of the German Commercial Code (HGB)). The customer must notify us of material defects in writing without undue delay.
7.3. Initially, we must always be given the opportunity for subsequent performance within a reasonable period. We can choose whether we provide subsequent performance by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
7.4. If the subsequent performance fails, the customer may withdraw from the contract or reduce the remuneration, without prejudice to any claims for damages. The customer may not demand compensation for futile expenditure.
7.5. Claims for defects shall not be accepted where there are only minor deviations from the agreed properties, where usability is only impaired to a minor extent, in the case of normal wear and tear or where damage has occurred following passing of the risk due to incorrect or negligent handling, excessive stress, unsuitable operating resources or due to particular external factors not provided for by the contract. Likewise, if improper modifications or repair work are carried out by the customer or by third parties, no claims for defects shall be accepted for these and the resulting consequences.
7.6. Any rights of recourse against us on the part of the customer exist only to the extent that the customer has not entered into any agreements with his/her own customer beyond the statutory claims for defects.
7.7. Section 9 (Other liability) applies to claims for damages other than those covered by Section 8. Any further claims or claims other than those regulated in this provision by the customer against us and our agents due to a material defect are excluded.
8. Inability to deliver
8.1. If we are unable to deliver, the customer shall be entitled to claim damages unless we are not responsible for our inability to deliver. However, the customer's claim for damages shall be limited to 10% of the value of the part of the delivery that cannot be put into useful operation due to our inability to deliver. This limitation shall not apply if we are liable in the cases mentioned in Section 9.2; this does not imply a change in the burden of proof to the disadvantage of the customer. The right of the customer to withdraw from the contract remains unaffected.
8.2. In the event of a temporary inability to deliver, Section 5 (Deadlines for deliveries; delay) shall apply.
9. Other liability
9.1. Unless otherwise stated in these General Terms of Delivery including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual or non-contractual obligations.
9.2. We shall be liable for damages – regardless of the legal grounds – within the scope of liability for culpable intent and gross negligence. In the event of simple negligence, and subject to statutory limitations of liability (e.g. diligence exercised in our own affairs; minor breach of duty), we shall only be liable
a) for damages arising from loss of life, bodily injury, or damage to health,
b) for damages due to the breach of a material contractual obligation (obligation, the fulfillment of which is a prerequisite for the proper fulfillment of the contract and on whose observance the other party to the contract regularly relies and may rely); in this event, however, our liability shall be limited to compensation for any foreseeable, typically occurring damage.
9.3. The limitations of liability resulting from Section 9.2 shall also apply to breaches of obligation by or in favor of persons whose culpability is our responsibility according to statutory provisions. The limitations of liability shall not apply if we have fraudulently concealed a defect or if we have provided a guarantee for the quality of the goods and for claims by the customer under the German Product Liability Act (ProdHaftG).
9.4. The customer may withdraw from or terminate the contract due to a breach of obligation consisting of something other than a defect only if we are responsible for the breach of obligation. The customer does not have a free right of termination (particularly under Sections 650 and 648 BGB). For the rest, the legal requirements and legal consequences apply.
10. Limitation period
10.1. The general limitation period for claims arising from material defects or defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
10.2. However, if the goods are a building or an item that has been used for a building in accordance with its normal use and that has caused its defectiveness (building material), the limitation period shall be five years from delivery, in accordance with the statutory provision (Section 438 (1) no. 2 BGB). Other special statutory provisions on the limitation period (particularly Section 438 (1) no. 1, Section 438 (3), Section 444, and Section 445b BGB).
10.3. The above limitation periods of commercial law also apply to contractual and non-contractual claims for damages by the customer that are based on a defect in the goods or service unless the application of the regular statutory limitation period (Sections 195 and 199 BGB) would result in a shorter limitation period in individual cases. However, claims for damages by the customer in accordance with Section 9.2 sentence 1 and sentence 2a) or under the German Product Liability Act (ProdHaftG) shall become statute-barred solely in accordance the statutory limitation periods.
11. Reservation of title
11.1. We reserve title to the goods sold until payment in full of all our present and future claims arising from the purchase contract and from any ongoing business relationship (secured claims).
11.2. The goods subject to reservation of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform us in writing without undue delay if an application is made for the opening of insolvency proceedings or if third parties seize the goods belonging to us (e.g. attachments).
11.3. If the customer acts in breach of contract, in particular if the customer fails to pay the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the reservation of title. The demand for the return of the goods does not simultaneously include a declaration of withdrawal from the contract; on the contrary, we are entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the due purchase price, we may assert these rights only if we have previously set the customer a reasonable deadline for payment, without success, or the setting of such a deadline is unnecessary according to the statutory provisions.
11.4. With the exception of revocation pursuant to c) (below), the customer is authorized to resell and/or process the goods subject to reservation of title in the ordinary course of business. In this case the following provisions shall additionally apply:
a) The reservation of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are deemed the manufacturer. If our goods are processed, mixed, or combined with third-party goods and the third parties retain their right of ownership, we shall acquire coownership in proportion to the invoice values of the processed, mixed, or combined goods. For the rest, the same applies to the resulting product as to the goods delivered under reservation of title.
b) The customer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product, in total or in the amount of any co-ownership share on our part in accordance with the above paragraph. We hereby accept this assignment. The obligations of the customer mentioned in Section 11.2 also apply in consideration of the assigned claims.
c) In addition to us, the customer remains authorized to collect the claim. We undertake not to collect the claim as long as the customer fulfills his/her payment obligations to us, there is no deficiency in the customer’s ability to pay, and we do not assert the reservation of title by exercising a right under Section 11.3. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents, and informs the debtors (third parties) of the assignment. In this case, we shall furthermore be entitled to revoke the customer's authority to resell and process the goods subject to reservation of title.
d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer's request.
12. Third-party property rights
If deliveries are made according to drawings or other information provided by the customer and if third-party property rights of third parties are infringed as a result, the customer shall indemnify us against all claims.
13. Place of jurisdiction and applicable law
13.1. If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office. However, we shall also be entitled in all cases to take legal action at the place of fulfillment of the performance obligation or at the customer's registered office. Higher-ranking statutory provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.
13.2. These General Terms of Delivery and the contractual relations shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
14. Binding nature of the contract
Even if individual points in the contract are legally ineffective, the remaining parts of the contract shall remain binding. This shall not apply if adhering to the contract would constitute unreasonable hardship for the customer or for us.
Terms and Conditions of Purchase of TEKON Prüftechnik GmbH
a. These Terms and Conditions of Purchase apply to the contractual relationship to be concluded and to all present and future business relations between us and the supplier. The Terms and Conditions of Purchase only apply if the supplier is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law, or a special fund under public law.
b. The Terms and Conditions of Purchase apply in particular to contracts for the sale and/or delivery of movable goods (“goods”), regardless of whether the supplier manufactures the goods itself or purchases them from sub-suppliers (Sections 433 and 650 BGB). Unless otherwise agreed, the Terms and Conditions of Purchase apply in the version valid at the time of our order or, in any case, in the version most recently communicated in text form as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
c. These Terms and Conditions of Purchase apply exclusively. Deviating, contrary or supplementary general terms and conditions of purchase on the part of the supplier shall not apply even if we have not expressly objected to them in individual cases. This also applies, if we accept goods or other services of the supplier without reservation and make payments for these.
d. Legally relevant declarations and notifications of the supplier in relation to the contract (e.g. setting of a deadline, reminder, or withdrawal) must be made in written or text form (e.g. letter, email, fax). Statutory requirements as to form and further evidence, particularly in the event of doubts about the credentials of the party making the declaration, remain unaffected.
e. If a written declaration or notification is generally required in these Terms and Conditions of Purchase, the form mentioned in 1 d. is meant.
f. Models, samples, tools, drawings, and other materials that we provide to the supplier for the execution of the order, must not be transferred, sold, pledged, or otherwise passed on or made accessible to third parties without our consent.
2. Order and contract conclusion
a. Our order shall be deemed binding at the earliest upon written submission or confirmation. The supplier must notify us of obvious errors (e.g. clerical or arithmetical errors) and omissions or incomplete elements of the order, including the order documents, for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.
b. Our order must be confirmed in writing by the supplier upon receipt. If we do not receive due confirmation from the supplier within seven days of receipt of the order, we shall be entitled to cancel the order without the supplier being able to derive any claims from this. Delivery call-offs shall become binding at the latest if the supplier does not object to the delivery request within one week of receipt of the call-off. Delayed acceptance by the supplier is considered a new offer and requires our written acceptance.
c. If offers are made by the supplier in response to our request, we shall not incur any costs as a result. The supplier shall be bound by the offer for 30 days from receipt.
d. Our declarations, such as orders and delivery call-offs – particularly their amendments and supplements – shall only be legally binding for us if we have issued them in writing.
3. Shipping, packaging
a. Within Germany, delivery shall be free to the place specified in the order. If the destination is not specified and nothing else has been agreed, the goods must be delivered to our registered office in Kernen. The respective destination is also the place of fulfillment for the delivery and any subsequent performance (obligation to be performed at the place of fulfillment).
b. Shipping is always at the risk of the supplier. Until delivery at the shipping address or place of use specified by us, the supplier shall bear the risk of any deterioration including the accidental loss of the subject matter of the contract, unless otherwise agreed in individual cases.
c. The delivery must be accompanied by a delivery note stating the date (issue and dispatch), content of the delivery (article number and quantity), and our order identification (date and number). If the delivery note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch note with the same content shall be sent to us separately from the delivery note.
d. The supplier is obliged to take back all packaging materials.
4. Delivery periods
a. The agreed, delivery dates, especially those specified in the order, shall be legally binding. Goods delivered prematurely without our consent may be returned or stored by us at the supplier's expense. If the goods are returned, the supplier must deliver again on the agreed date. Partial deliveries shall only be accepted if expressly agreed; in the case of agreed partial deliveries, the remaining quantity of the total delivery must be documented in the delivery documents.
b. Receipt of the subject matter of the contract at the shipping address or place of use specified by us shall always be decisive for determining compliance with the delivery date or the agreed delivery period. If the supplier determines that agreed dates and deadlines cannot be met for reasons beyond our control, the supplier must notify us of this without undue delay and in writing, stating the reasons known to the supplier and the expected duration of a delay in delivery. We shall always be entitled to demand information from the supplier about the production status of the subject matter of the contract.
c. In the event of delayed delivery, we shall be entitled to demand a contractual penalty in the amount of 0.2% of the delivery value per working day, however not more than 5% of the delivery value in total. We expressly reserve the right to assert further legal claims (such as withdrawal from the contract and compensation instead of performance). In this case, the contractual penalty shall be offset against the damage caused by the delay to be compensated by the supplier. The supplier shall also have the right to prove to us that no damage or considerably less damage has been caused by the delay.
d. We shall be entitled to withdraw from the contract in the event of natural disasters, industrial disputes, transport disruptions, or other operational disruptions for which we are not responsible, in particular in all cases of force majeure resulting in a cessation or restriction of our production, if the execution of the contract is no longer economically reasonable for us due to the aforementioned circumstances. This also applies to a partial obligation, whereby the contractual relationship is maintained in all other respects. For the rest, these circumstances also release the supplier for the duration of the disruption and to the extent of their respective impact on the supplier’s obligation to perform. However, the supplier must, within reasonable limits, always provide us with the necessary information without undue delay, and shall adapt its obligations as effectively as possible to the changed circumstances.
5. Prices, payment
a. Unless otherwise agreed in writing, the agreed prices are fixed prices. Prices shall always include costs for packaging, freight and transport to the shipping address or place of use specified by us. If in an exceptional case an “ex warehouse” or “ex works” price has been agreed, we shall only pay the most inexpensive freight costs. The supplier must always bear the relevant costs until the goods are handed over to the carrier, including the loading costs.
b. Invoices must not be enclosed with the shipment, but should be submitted separately for each order after delivery, showing the respective value added tax and stating the complete order number.
c. Payment shall be made after receipt of the goods in accordance with the contract and receipt of the duly prepared, verifiable invoice, either within 14 days less a 2% discount from the basis of assessment or after 30 days net. Non-discountable invoices shall be settled within 30 days of presentation of the invoice. We reserve the right to select the means of payment. We also reserve the right to complain about the correctness of the invoice when the payment is executed. In the event of a delivery that is not in accordance with the contract, we shall be entitled to withhold payment in proportion to the value of the goods, at least in the amount permitted by law, until the delivery is properly fulfilled. If we have already made payments in ignorance of a non-contractual delivery, we shall be entitled to withhold other payments due under other legal relationships at least up to the amount of the overpayment. We are entitled, to refuse consent to the assignment of the supplier's claim against us unless this is unreasonable; this also applies to the right of third parties to collect the claim.
d. We are always entitled to carry out offsets to the extent permitted by law.
6. Export restrictions, proof of origin
a. At our request, the supplier must provide comprehensive proof of the origin of the goods delivered by it, the manufacturer, or its upstream suppliers at any time. Proofs of origin requested by us must be submitted by the supplier in full and signed without undue delay.
b. The supplier must inform us in writing, without restriction and without being requested to do so, if the goods to be delivered or already delivered by it should be subject, in whole or in part, to export restrictions in the form provided for by the laws applicable in the Federal Republic of Germany.
7. Quality and documentation
a. For its deliveries, the supplier must in each case observe and fulfill the recognized rules of science and technology, safety regulations, quality assurance agreements, and other agreed or customary performance parameters. Any production processes that are agreed or other changes in the production of the subject matter of the contract require our prior written consent.
b. When making its deliveries, the supplier shall comply with the respective applicable legal regulations of the European Union and the Federal Republic of Germany, e.g. the REACH Regulation (Regulation (EC) No. 1907/2006), the German Electrical and Electronic Equipment Act (ElektroG) as national implementation of Directive 2002/95/EC (RoHS) and Directive 2002/96/EC (WEEE), and the German End-of-Life Vehicles Act as national implementation of EU Directive 2000/52/EC. The supplier shall inform us promptly of any relevant changes to the goods, their deliverability, use or quality caused by legal regulations, in particular the REACH Regulation, and shall coordinate suitable measures with us on a case-by-case basis. The same applies, as soon as and to the extent that the supplier recognizes or should have recognized that changes of this type could occur.
c. The supplier shall always use a quality assurance system in line with the latest developments in science and engineering, and shall modernize it continuously. Upon concluding the contract, the supplier confirms that it has certified its company according to the best possible quality assurance system.
d. In the case of technical documents or delivery parts agreed separately as requiring documentation, the supplier must also always keep special records of the time and manner in which the subject matter of the contract was tested with regard to the parameters requiring documentation, as well as the name of the person(s) carrying out the tests and the results of these inspections/quality tests. The supplier shall keep these records for fifteen years after testing and shall present them to us on request and at the supplier’s expense. Within the framework of the existing and customary procedures and possibilities, this obligation must be imposed without limits on an upstream supplier and the fulfillment of a documentation obligation must be guaranteed by us in this respect.
8. Ownership protection, provision of materials
a. We reserve title and copyrights to all orders and contracts submitted by us and to any drawings, illustrations, calculations, descriptions and other documents provided by us to the supplier. The supplier must not transfer, sell, pledge, or otherwise pass these items on or make them accessible to third parties without our express consent, nor is it permitted to use or reproduce said items itself or through third parties without our express consent. The same applies to the items manufactured with the aid of these production materials. This also applies to items that the supplier has developed according to our specifications or with our assistance. We always reserve full title to the items provided, otherwise any copyright established in our favor, without restrictions. Upon completion of the relevant order, these items and documents should be returned to us or carefully stored for a limited time, in either case at our request. The supplier must always return these documents to us in full if they are no longer required by it in the ordinary course of business or if negotiations do not result in the conclusion of a contract. In this case, any copies made by the supplier must be destroyed; the only exceptions to this are retentions due to statutory storage obligations or the storage of data for backup purposes as part of the standard data backup procedure.
b. Any tools, devices, or models that we provide to the supplier or that are manufactured for contractual purposes and charged to us separately by the supplier shall remain our property or become our property. They must be marked by the supplier as our property, stored carefully, secured against damage of any kind and used only for the purposes of the contract. In the absence of an agreement to the contrary, the contracting parties shall each bear half the cost of their maintenance and repair. However, if these costs are attributable to defects in such items manufactured by the supplier or to improper use by the supplier, its employees or other agents, they shall be borne solely by the supplier. The supplier shall notify us without undue delay of any damage to these items that is not insignificant, and shall be obliged, upon request, to return them to us in proper condition if they are no longer required by it to fulfill the contracts concluded with us.
c. Materials, parts, containers, or special packaging provided by us in return for payment or free of charge (provided materials) shall remain our property, and must only be used for their intended purpose. The processing and assembly of the provided materials shall be carried out for us. It is agreed that we shall be co-owners of the products manufactured using our materials and parts in the ratio of the value of the provided materials to the value of the overall product, and that said products shall be kept safe for us by the supplier. We expressly reserve the right to co-ownership of the products manufactured using the materials provided by us until the complete fulfillment of our claims arising from the provided materials. The supplier is not entitled to resell to third parties the products manufactured using the materials provided by us without our express written consent.
d. Reservations of title by the supplier shall only be valid to the extent that they relate to our payment obligation for the relevant products, to which the supplier reserves title. In particular, extended or prolonged reservations of title are not permitted.
9. Investigation, complaint, and self-remedy
a. Prior to delivery, of the subject matter of the contract, the supplier is obliged to carry out any necessary and suitable outgoing inspections of the subject matter of the contract, to take retained samples of each batch for delivery, and to store them at its own expense for ten years.
b. The statutory provisions (Sections 377 and 381 HGB) shall apply to the commercial duty to examine and give notice of defects with the following proviso: Upon delivery of the subject matter of the contract, we must carry out an incoming goods inspection, that is limited to an identity check and a check for obvious defects, transport damage, quantity to the usual extent, and the occurrence of other obvious damage. We are not obliged to carry out a more extensive examination as part of the incoming goods inspection. The supplier shall take this limited incoming goods inspection into account by exercising increased care during the outgoing goods inspection. If defects or other findings detrimental to us regarding the condition of the goods are made in the further course of business, we must notify the supplier of this within ten days of determining this condition. Furthermore, our examination is limited to an inspection during production and the performance of final testing.
c. If we carry out work in our company in the course of self-remedy, we shall be entitled to recover the cost of this in full from the supplier.
a. The statutory provisions shall apply to our rights in the event of material defects or defects of title with respect to the goods (including incorrect or short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of obligation by the supplier, unless otherwise provided for below.
b. In accordance with the statutory provisions, the supplier shall specifically be liable for ensuring that the goods have the agreed quality when the risk passes to us. Product descriptions that are the subject matter of the respective contract, particularly by designation or reference in our order, or that have been included in the contract in the same way as these Terms and Conditions of Purchase shall always be considered agreements as to quality. It makes no difference whether the product description comes from us, the supplier or the manufacturer.
c. Notwithstanding Section 442 (1) sentence 2 BGB, we shall be entitled to claims for defects without restriction even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
d. Subsequent performance shall also include the removal of the defective goods and reinstallation if the goods have been installed in or attached to another item in accordance with their nature and intended use; our legal claim to reimbursement of corresponding expenses shall remain unaffected. The supplier shall bear the necessary expenses for the purposes of inspection and subsequent performance even if it turns out that no defect actually existed. Our liability for damages in the event of an unjustified request for rectification of defects shall remain unaffected; however, we shall only be liable in this respect if we have recognized or grossly negligently failed to recognize that there was no defect.
e. Without prejudice to our statutory rights and the provisions in paragraph 5, the following shall apply: If the supplier does not fulfill its obligation to render subsequent performance – either by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery), at our discretion – within a reasonable period of time set by us, we may remedy the defect ourselves and demand that the supplier reimburse the necessary expenses or provide an appropriate advance payment. If the subsequent performance by the supplier fails 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 supplier of such circumstances without undue delay, if possible in advance.
f. Otherwise, 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. We shall additionally be entitled to compensation for damages and expenses in accordance with the statutory provisions.
g. In derogation from Section 438 (1) no. 3 BGB, contractual claims for defects shall generally become statutebarred three years after delivery or – if acceptance has been agreed – after acceptance unless longer limitation periods take precedence for special reasons (e.g. fraudulent intent) under the law.
h. If we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (Sections 195 and 199 BGB) shall apply in this respect unless the application of the limitation periods of commercial law result in a longer limitation period in individual cases.
11. Product and producer liability
a. If the supplier is responsible for product damage, it must indemnify us from third-party claims to the extent that the cause lies within its sphere of control and organization and the supplier itself is liable in the external relationship.
b. As part of its obligation to indemnify, the supplier must reimburse expenses arising from or in connection with a third-party claim, including recall actions carried out by us, in accordance with Sections 683 and 670 BGB. To the extent possible and reasonable, we shall inform the supplier about the content and scope of recall measures and give it the opportunity to comment. Further legal claims remain unaffected.
c. The supplier must take out and maintain product liability insurance with lump sum coverage of at least EUR 5 million per personal injury/property damage.
12. Own liability, limitation of liability
a. Unless otherwise stated in these Terms and Conditions of Purchase including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual or non-contractual obligations.
b. We shall be liable for damages – regardless of the legal grounds – within the scope of liability for culpable intent and gross negligence. In the event of simple negligence, and subject to statutory limitations of liability (e.g. diligence exercised in our own affairs; minor breach of duty), we shall only be liable
aa) for damages arising from loss of life, bodily injury, or damage to health,
bb) for damages due to the breach of a material contractual obligation (obligation, the fulfillment of which is a prerequisite for the proper fulfillment of the contract and on whose observance the other party to the contract regularly relies and may rely); in this event, however, our liability shall be limited to compensation for any foreseeable, typically occurring damage.
c. The limitations of liability resulting from paragraph b. shall also apply to breaches of obligation by or in favor of persons whose culpability is our responsibility according to statutory provisions. They shall not apply to claims for which we are liable regardless of fault, e.g. claims arising from the German Product Liability Act (ProdHaftG) or where we have provided a guarantee.
d. The supplier may withdraw from or terminate the contract due to a breach of obligation only if we are responsible for the breach of obligation. For the rest, the legal requirements and legal consequences apply.
a. The supplier is obliged to treat, documents, information, and data, relating to the subject matter or purpose of the contract, as strictly confidential and to do everything and omit nothing to ensure the highest possible level of secrecy. The supplier must impose enforceable obligations of this kind on its employees or other third parties entrusted with the provision of services (e.g. subcontractors), and must provide evidence of the fulfillment of such obligations at our request.
b. The supplier must not transfer models, samples, tools, drawings, or other similar items to unauthorized third parties and must not make such items accessible to them under any circumstances. The reproduction of such models, samples, tools, drawings, and the like is only permitted within the scope of operational requirements and in due consideration of the respective copyright protection regulations.
c. The supplier must refrain from advertising or any other representation of the business relationship agreed with us. Furthermore, the supplier may use our company name or industrial property rights granted in our favor only with our prior written consent.
14. Property rights
a. The supplier shall ensure that the manufacture of the subject matter of the contract in no way involves an infringement of third-party industrial property rights or an unauthorized use of such rights under other conditions. The supplier shall indemnify us or our eligible customers against any third-party claims in this connection under all relevant obligations and shall reimburse us and our customers on the basis of the obligation hereby assumed for any expenses incurred due to statutory claims arising from infringements of industrial property rights.
b. If the supplier has manufactured the subject matter of the contract in accordance with drawings, models, or other instructions or information provided by us and has not been informed by us of any third-party property rights, the supplier shall accordingly be exempt from any obligation to pay compensation.
c. If the parties to the contract become aware of risks of infringement or alleged cases of infringement in this connection, they must inform each other accordingly and give the other party the opportunity to take concerted action against any such third-party claims for infringement.
d. At our request, the supplier shall inform us of the use of published or unpublished, the supplier’s own or licensed property rights, and property right applications for its product.
15. Hazardous substances
a. If the subject matter of the contract is a substance or preparation that possesses hazardous properties within the meaning of the German Ordinance on Hazardous Substances (GefStoffV) or if these properties only arise when the subject matter of the contract is handled, the supplier is obliged, prior to placing the subject matter of the contract into circulation, to classify, appropriately package, and label it in accordance with the provisions of the German Ordinance on Hazardous Substances applicable at the time of delivery. A current, dated safety data sheet in German as well as in English, including information on the place of use and intended application, must be sent during the initial sampling and first series delivery. The safety data sheet must be sent by the supplier without prompting whenever the substance/preparation is changed and whenever the safety data sheet is revised. This shall otherwise apply within a cycle of three years. If special regulations regarding handling apply, we must be informed of this separately in writing and advised as appropriate on the application of the substance/preparation, taking into account the local conditions and handling at our premises. All other statutory provisions binding on the supplier remain unaffected.
16. Final provisions
a. The place of fulfillment for all contractual obligations is Waiblingen.
b. The laws of the Federal Republic of Germany shall apply exclusively to the exclusion of the conflict of laws provisions and further excluding the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).
c. If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Kernen. However, we shall also be entitled in all cases to take legal action at the place of fulfillment of the delivery obligation in accordance with these Terms and Conditions or a prior individual agreement, or at the supplier's general place of jurisdiction. Higher-ranking statutory provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.
d. Should individual provisions of the above condition be or become legally invalid, this shall not affect the validity of these Terms and Conditions of Purchase in other respects.