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General Terms and Conditions of Purchase

General Terms and Conditions of Purchase

ErgoTek GmbH & Co. KG
Status 01/2018

 

§1. General, scope of application

  1. These Terms and Conditions of Purchase shall apply to entrepreneurs, legal entities under public law and special funds under public law. By accepting these Terms and Conditions of Purchase without objection or by fulfilling the contract without objection or by accepting their exclusive validity for all deliveries and services, the Contractor declares its agreement. We do not recognize any conflicting or deviating terms and conditions of the contractor unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Purchase shall also apply if we accept delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the Contractor.
  2. All agreements made between us and the contractor for the purpose of executing this contract must be recorded in writing. Verbal collateral agreements require our express written confirmation to be effective. Only the confirmation of our purchasing department is authoritative. 1.3 Our Terms and Conditions of Purchase shall also apply to all future transactions with the Contractor.

§2. Offer, offer documents, responsibility

  1. The contractor must confirm our order within a period of 5 days. The Contractor shall not be entitled to have the order executed by third parties. Additions, restrictions or other deviations from the order or the associated documents require the written consent of our purchasing department.
  2. The Contractor shall treat the order and the conclusion of the contract as well as the contractual conditions confidentially. He may only mention our order as a reference or for advertising purposes with our written consent.
  3. We reserve the property rights and copyrights to illustrations, drawings, calculations, tools, models and other documents; they may not be made accessible to third parties without our express written consent. They may only be made accessible to those employees of the contractor who need to know them for the purpose of fulfilling the contract. They are to be used exclusively for production based on our order; after completion of the order they are to be returned to us unsolicited. They must be kept secret from third parties. The Contractor shall be liable to us for all damage caused by culpable infringement.
  4. Our approval of drawings, calculations and other documents shall not affect the Contractor’s sole responsibility for the delivery item. This also applies to suggestions, recommendations and other cooperation on our part.

§3. Prices, terms of payment, offsetting, assignment

  1. The price stated in the order is binding. It is subject to the applicable value added tax. Unless otherwise agreed in writing, the price includes delivery “free domicile”, including freight costs and customary packaging. We reserve the right to choose the carrier. If an “ex works” or “ex warehouse” price has been agreed, we shall only pay the most favorable freight costs. All costs incurred up to handover to the carrier, including loading and cartage, shall be borne by the Contractor.
  2. We can only process invoices if these – in accordance with the specifications in our order – state the order number shown there.
  3. Unless otherwise agreed in writing, we shall pay within 14 days of proper delivery and receipt of the invoice with a 3% discount or within 60 days without deduction.
  4. All payments shall be made subject to invoice verification and our rights arising from defective delivery or performance. Insofar as notices of defects are already known on the due date, we shall be entitled to withhold a reasonable amount of payment.
  5. We shall be entitled to rights of set-off and retention to the extent permitted by law.
  6. Claims against us may only be assigned with our prior written consent. This does not apply to assignments within the framework of an extended reservation of title. § Section 354 a HGB remains unaffected.
  7. Disputes about the amount of remuneration shall not entitle the Contractor to suspend its services in whole or in part, even temporarily.

§4. Delivery time, delay in delivery, force majeure

  1. The delivery time stated in the order is binding. Early deliveries as well as excess, short and partial deliveries are only permissible if and insofar as we have expressly agreed to them in writing.
  2. The contractor is obliged to inform us immediately if circumstances arise or become apparent to him which indicate that the stated delivery time or the agreed specifications cannot be met.
  3. In the event of a delay in delivery, we shall be entitled to demand liquidated damages for delay in the amount of 0.5% of the order price per completed week, but not more than 5% in total, or, after expiry of a reasonable grace period set by us, to have the service not yet rendered by the Contractor performed by a third party at the Contractor’s expense. Further legal claims remain reserved. In particular, we shall be entitled to demand compensation instead of performance after the fruitless expiry of a reasonable grace period, whereby the contractual penalty paid shall be credited. The Contractor shall be entitled to prove that we have suffered no or less damage as a result of its delay.
  4. The unconditional acceptance of the delayed delivery or service does not constitute a waiver of the claims for compensation to which we are entitled.
  5. For quantities, weights and dimensions, the values determined by us during the incoming goods inspection shall be decisive, subject to proof to the contrary.
  6. If labor disputes, operational disruptions through no fault of our own, unrest, official measures or other unavoidable events (force majeure) are not only of insignificant duration and result in a significant reduction in our requirements, we shall be entitled – without prejudice to our other rights – to withdraw from the contract in whole or in part.

§5. Transfer of risk, delivery and shipping documents

  1. The contractor shall bear the risk (transfer of risk) until the delivery arrives at our premises or the recipient named by us.
  2. The contractor is obliged to state our order number on all shipping documents and delivery bills. If he fails to do so, we shall not be liable for any resulting delays and/or losses. The contractor is obliged to indemnify us accordingly.

§6. Warranty, recourse

  1. The Contractor warrants that its services comply with the recognized rules of technology, all relevant standards and the contractually agreed properties as well as the relevant safety regulations, have the guaranteed properties and are otherwise free of material defects and defects of title. We are obliged to inspect the goods for any deviations in quality or quantity insofar as and as soon as this is feasible in the ordinary course of business. Defects shall be reported by us immediately after discovery. In this respect, the Contractor waives the objection of late notification of defects.
  2. Acceptance shall always be subject to the reservation of all rights, in particular those arising from defective or delayed delivery. If acceptance is prevented or made considerably more difficult by circumstances beyond our control, we shall be entitled to postpone acceptance for the duration of these circumstances. If this occurs for a period of more than four weeks, the Contractor shall be entitled to withdraw from the contract; any further claims by the Contractor shall be excluded.
  3. We shall be entitled to the statutory claims for material defects and defects of title in full. Irrespective of this, we shall be entitled to demand that the Contractor remedy the defect or deliver a replacement at our discretion, provided that the Contractor does not choose the type of subsequent performance chosen by us in accordance with § 439 para. 2 BGB can refuse.
  4. If the Contractor does not begin to remedy the defect immediately after our request, we shall be entitled in urgent cases to carry out the necessary measures ourselves or have them carried out by third parties at the Contractor’s expense after consulting the Contractor.
  5. The limitation period for claims for material defects is 36 months, calculated from the transfer of risk. We shall be entitled to any longer statutory limitation periods in accordance with §§ 438, 479 and 634 a BGB (German Civil Code) in full.
  6. In the event of defects of title, the Contractor shall additionally indemnify us against any third-party claims. Claims for defects of title shall lapse after 10 years.
  7. For goods repaired or newly delivered within the limitation period, the limitation period agreed here begins anew.
  8. If we incur transport, travel, labor or material costs or costs for an incoming goods inspection exceeding the usual scope as a result of defective performance or delivery by the contractor, the contractor shall reimburse these costs. The same applies to all expenses that we have to bear in relation to our customer due to his claims for subsequent performance.
  9. If we take back goods manufactured and/or sold by us as a result of the defectiveness of the service or delivery of the contractor or if the purchase price demanded by us is reduced as a result or if we are exposed to other claims for defects as a result, we shall be entitled to recourse against the contractor without the otherwise necessary setting of a deadline.
  10. Notwithstanding the provision in Section 6.5, our claims pursuant to Sections 6.8 and 6.9 shall become time-barred at the earliest 2 months after the time at which we have fulfilled the claims asserted against us by our customer, but at the latest 5 years after delivery of the goods by the Contractor.
  11. If a material defect becomes apparent within 6 months of the transfer of risk, it shall be assumed that it was already present at the time of the transfer of risk, unless this assumption is incompatible with the nature of the item or the defect.

§7. Product liability, recall, exemption, insurance cover

  1. If product liability claims or other claims are asserted on the basis of the defects described in Section 6.1. If a claim is made against us for the defects mentioned above, the Contractor shall indemnify us against such claims upon first request if and to the extent that the damage was caused by a defect in the goods delivered or services rendered by the Contractor. In cases of fault-based liability, however, this only applies if the contractor is at fault. If the cause of the damage lies within the contractor’s area of responsibility, he shall bear the burden of proof in this respect.
  2. In the cases described in Section 7.1, the Contractor shall bear all costs incurred in this connection, in particular for our legal defense and any recall actions. We will inform the contractor about the content and scope of such recall actions – as far as possible and reasonable. We reserve the right to assert further legal claims.
  3. Sections 7.1 and 7.2 shall apply accordingly if product defects are attributable to deliveries or services of the Contractor’s suppliers or subcontractors.
  4. The Contractor shall take out adequate insurance against product liability risks, including recall costs and other risks specified in clause 7.1, and shall provide us with evidence of this at any time upon request.

§8. Property rights

  1. The Contractor warrants that no third-party rights are infringed in connection with its deliveries and services. If a third party makes a claim against us for this reason, the contractor shall indemnify us upon first written request.
  2. If the manufacture, delivery, license use or sale of the goods or services infringes patents, trademarks, copyrights or other intellectual property, the Contractor shall procure for us at its own expense a perpetual royalty-free license for the items concerned. In order to avoid a breach of these rights, he may also modify the goods ordered or replace them with other goods if the goods ordered and the goods delivered are of equal value. This obligation exists even if we specify part of the design, the material or the manufacturing process.

§9. Provision

  1. Materials, parts, models, containers, special packaging, tools, molds, data, drawings, designs and software provided by us shall remain our property and may only be used as intended. The processing of fabrics and the assembly of parts are carried out for us. It is agreed that we are co-owners in the ratio of the value of the materials provided to the value of the overall product manufactured with them; the Contractor shall hold this co-ownership for us free of charge.
  2. The Contractor shall mark the items referred to in clause 9.1 as our personal property and shall store and insure them separately. The customer shall bear the risk of loss and/or destruction until the goods are returned to us. He shall only use them to fulfill his obligations under this contract and shall return them to us immediately upon our written request.
  3. The contractor is obliged to provide us immediately with all knowledge and documents that it develops in connection with the fulfillment of the contract. Designs, models, software and other intellectual property developed by him in the performance of the contract shall become our property.

§10. Place of jurisdiction, place of performance, choice of law

  1. If the Contractor is a merchant, a legal entity under public law or a special fund under public law, our place of business shall be the place of jurisdiction for all disputes arising from this contractual relationship. However, we are also entitled to sue the contractor at his general place of jurisdiction.
  2. The place of performance shall be the place to which the goods are to be delivered in accordance with the order.
  3. The law of the Federal Republic of Germany shall apply without exception to the legal relationships of domestic contractual partners; the applicability of the UN Convention on Contracts for the International Sale of Goods is hereby excluded.
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