General Conditions of Purchase
As at: 07/2012
1. General - Scope
1.1 These General Conditions of Purchase apply to all deliveries and services (hereinafter referred to as “Deliveries”) for which a seller, contractor or a service rendering party (hereinafter referred to as “Supplier”) produces screen printing machines for ISIMAT GmbH.
1.2 Our Conditions of Purchase apply exclusively. Supplier's conditions which are contrary to or deviate from our Conditions of Purchase are not recognised by us, unless we have expressly agreed to them in writing. Our Conditions of Purchase also apply if we accept Supplier's delivery without reservation in knowledge of Supplier's conditions which are contrary to or deviate from our Conditions of Purchase.
1.3 Our Conditions of Purchase only apply to companies pursuant to 310 para. 1 BGB [German Civil Code].
1.4 Our Conditions of Purchase apply in their current version as a framework agreement to all future contracts for the sale and delivery of movable goods from the same supplier without the need for us to have to refer to them in each individual case.
1.5 Separately agreed, individual agreements with Suppliers (including side agreements, amendments and modifications) always take precedence over these Conditions of Purchase. A written contract or our written confirmation is required for the content of such agreements.
1.6 Legally relevant declarations and notifications which are to be delivered to us by Supplier after the conclusion of the contract, (e.g. the setting of deadlines, reminders and rescission declarations) require the written form.
2. Offer - Offer documents
2.1 The contract is concluded by our written order and by Supplier accepting. If Supplier does not accept an order within five business days, we reserve the right to revoke it.
2.2 We reserve ownership rights for all Illustrations, drawings, calculations and other documents; the same applies to our copyright, provided the documents are protected under copyright law. The documents may not be disclosed to third parties without our express written consent. They shall be used solely for the purposes pursuant to our order; they are to be returned to us upon written request, but not later than upon the completion of the order without request. They are not to be disclosed to third parties, as governed by the following clauses 9.3 and 9.4. Suppli-er has no right of retention to these documents.
3. Prices and payment conditions
3.1 The price reported in the order is binding. All prices must be stated in EUROS. The invoices are also to be issued in EUROS. In the absence of a written agreement, the price includes delivery “free domicile”, including packaging. Packaging material is to be taken back by Supplier upon our request. Unless otherwise agreed in a particular case, the price also includes all of Supplier's services and ancillary services (e.g. assembly, installation) as well as all ancillary costs (e.g. transport costs including any transport and liability insurance).
3.2 Invoices can only be processed if they - in accordance with the specifications in our order - are separately received in duplicate for each order and in particular specify the order number. Supplier is responsible for all consequences arising from failure to comply with this obligation, unless it can prove that it is not responsible.
3.3 Unless otherwise agreed in writing, we will pay the price within 30 days after delivery and receipt of a proper verifiable invoice with a 3% discount or net within 60 days after receipt of invoice.
3.4 The rights of offsetting and retention are available to us to the statutory extent. We are in particular entitled to withhold due payments as long as there are still claims open from incomplete or defective deliveries from Suppliers.
3.5 Supplier only has a set-off and/or right of retention due to counter-claims which are legally established, uncontested or legally pending in proceedings.
3.6 Supplier is not entitled to assign its claims from the contractual relationship to third parties. This does not apply to money claims.
4. Delivery time
4.1 The delivery deadline stated in the order is binding.
4.2 Supplier is obligated to inform us immediately in writing if circumstances arise or become known to it which indicates that the agreed delivery date cannot be met. However, this does not affect Supplier's responsibility to comply with the agreed delivery period.
4.3 In the case of a delay in delivery we are entitled to the legal claims. The provision in clause 4.4 shall remain unaffected.
4.4 If Supplier exceeds the delivery date, it is obliged to pay a penalty. This amounts to 0.3% every working day of delay, but no more than a total of 5% of the total net remuneration amount. We are entitled to issue this penalty up until the date of final payment, even if we do not expressly reserve the right to do so when accepting the delayed delivery. The penalty is to be deducted from the default damages to be remunerated by Supplier. Any justified legal claims due to a delay will not be affected by the present agreement on penalties and their assertion.
5. Transfer of risk - Documents - Force majeure - Termination
5.1 Delivery is to take place “free domicile” to the address specified in our order and to the specifications of our order. If the destination is not specified and nothing else is agreed, the delivery is to be made to our headquarters. The respective destination is also the place of performance. If an acceptance has been agreed, this is decisive for the transfer of risk. The transport insurance is to be completed by us at our expense, unless otherwise agreed.
5.2 The delivery is to be accompanied by a delivery note stating in particular the date (issue and shipment), the contents of the delivery (product number and quantity) and our order code (date and number). If the delivery note is missing or it is incomplete, we are not responsible for resulting delays in processing and payment. In addition, Supplier must ensure that all shipments that are subject to labelling requirements, are properly identified. The identifications are to be available in order confirmations and all shipping documents. The safety data sheets and accident forms are part of the contract and are to be sent to us without request in paper-form or as a pdf file at the latest on delivery.
5.3 If acceptance or approval by us is not possible due to force majeure, labour disputes or other events which are beyond our control, we can demand the delivery in whole or in part at a later appropriate time, without Supplier being able to make any claims against us therefrom. However, if there is an extension of more than six months, each contracting party is entitled to withdraw from the contract. Also, no party can assert any claims against the other party in this case.
5.4 The underlying contract can be terminated without notice by either contractual partner for good reason. Good reason exists if circum-stances arise on the basis of which the terminating party does not believe the continuation of the contract can be expected, taking into account all of the circumstances of the individual case and weighing up the interests of the parties.
6. Liability for defects
6.1 As far as applicable, the statutory provisions (Sec. 377 HGB) apply for the commercial obligation to inspect and report defects, with the following proviso: Our obligation to inspect is limited to defects which openly emerge with us (e.g. transport damage, wrong and short delivery). This obligation expires as soon as acceptance has been agreed. Moreover, it depends on how feasible an inspection is taking into account the circumstances of the individual case under the ordinary course of business. Our requirement to report defects which are later discovered remains unaffected. Our objection (notification of defects) is considered immediate and timely in all cases, if it is provided within 10 working days.
6.2 We are entitled to the full statutory claims for defects. Regardless of this, we are entitled to demand either the removal of defects or a replacement from Supplier. In this case, Supplier is obliged to bear all costs necessary for the removal of defects or the replacement delivery. The right to claim damages, particularly for damages for non-performance is expressly reserved.
6.3 The statute of limitations for claims for defects is 36 months from the transfer of risk.
6.4 The statute of limitations is suspended with Supplier's receipt of our written notice of defects. Upon the replacement and removal of defects, the limitation period for the replaced and repaired parts begins again, unless, on the basis of Supplier's conduct, it is to be assumed that it was not obliged to take action, and the replacement or removal of defects only took place out of goodwill or similar reasons.
7. Product liability - Indemnity - Liability insurance
7.1 If Supplier is responsible for product damage, it is obliged to indemnify us of third party claims upon first request, as the cause is within its control and organisation and it is liable for the external relationship.
7.2 As part of its liability for damages within the meaning of Section 7.1, Supplier is also obliged to reimburse any expenses arising out of or in connection with a recall action conducted by us or one of our customers. We will inform Supplier of the content and scope of the recall measures - as far as possible and reasonable - and give it an opportunity to comment. This does not affect other legal claims.
7.3 Supplier is obliged to maintain product liability insurance with an adequate lump sum cover for personal injury/damage, but at least in the amount of €5 million. Should we have further damage claims, these remain unaffected. Supplier is to send us a copy of the policy upon request at any time or upon our separate request, a current certificate of insurance.
8. Property rights
8.1 Supplier is obliged to ensure that no third party rights are violated in connection with its delivery.
8.2 If a claim is made against us in this respect by a third party, Supplier is obligated to indemnify us from these claims upon first request. This does not apply if Supplier is not responsible for the infringement of third party rights. In the case of exemption, we are not entitled to make any agreements with the third party without Supplier's approval, and in particular to conclude a settlement.
8.3 Supplier's indemnification obligation refers to all expenses incurred by us from or in connection with a claim by a third party.
9. Retention of title - Provision - Confidentiality - Subcontractors
9.1 If products provided by us are inseparably mixed with other products not belonging to us, we shall acquire joint ownership of the new item in the proportion of the value of our item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing is done in such a way that Supplier's products are to be regarded as the main item, it is agreed that Supplier transfers proportional joint ownership to us. Supplier shall hold the sole or joint ownership for us.
9.2 Tools, fixtures and models that we make available to Supplier or that are manufactured for contractual purposes and are separately charged to us by Supplier, shall remain or shall become our property. They are to be identified as our property by Supplier, stored carefully to protect against damage of any kind and only used for contractual purposes. When prompted, Supplier is obligated to issue these items to us in proper condition. Supplier has no right of retention thereto.
9.3 Supplier is obligated to keep all illustrations, drawings, calculations and other documents and information obtained from us strictly confidential. The same is true for all of our business and trade secrets. They may only be disclosed to third parties with our express consent. The confidentiality obligation shall survive the termination of this contract. It expires if and insofar as the knowledge contained in the illustrations, drawings, calculations and other documents has become generally known.
9.4 Supplier is obliged to treat all commercial and technical details relating to the contract concluded with us and associated with its processing as a business or trade secret. Supplier is also obliged to maintain secrecy about its business relationship with us. Exceptions require our prior written consent.
9.5 Both Supplier and we are entitled to collect and store each other's data, including the individual contractual relationship, whereby the applicable regulations of data protection are to be observed.
9.6 Supplier is not entitled to commission third parties (e.g. subcontractors) for the performance of services owed without our prior written consent. In the case of the permissible commissioning of such third parties, Supplier is to obligate them to secrecy with a written document pursuant to the present clauses 9.3 and 9.4. Supplier is to provide us with a copy of this confidentiality obligation upon request.
9.7 Our technical officer or other person authorised by us is entitled to check the work progress of the delivery from Supplier or a third party at any time during normal business hours with prior notification. Supplier or the third party are to grant us access and to make all necessary information and documents available to us or to provide copies upon our request.
10. Spare parts
10.1 Unless otherwise agreed, Supplier is obligated to stock replacement parts for products delivered to us for a period of 15 years after delivery.
10.2 If Supplier intends to discontinue the production of spare parts for the products delivered to us, it is to tell us immediately after the decision on discontinuation. This decision must - without prejudice to clause 10.1 - be made at least 6 months before the cessation of production.
11. Jurisdiction - Place of performance
11.1 The law of the Federal Republic of Germany, excluding the CISG, applies for these Conditions of Purchase and all legal relationships between us and Supplier.
11.2 If Supplier is a merchant, legal entity under public law or a public law special fund, the exclusive jurisdiction for all disputes arising from the contractual relationship is our registered office. However, we are also entitled to bring an action at the place of performance of the delivery commitment or the location of Supplier's registered office.