General Terms and Conditions of Purchase

1. general, scope of application

1.1 These General Terms and Conditions of Purchase (GTCP) shall apply to all business relationships between the Client (Client) and the Contractor (Contractor).

 

1.2 The GPC shall apply in particular to contracts for the delivery of products, irrespective of whether the Contractor manufactures the products itself or purchases them from suppliers (Sections 433, 651 BGB). The GPC shall also apply in their respective version to future contracts with the same Contractor without the Client having to refer to them again in each individual case.

 

1.3 These GTCP shall apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of Section 310 (1) BGB. Deviating, conflicting or supplementary general terms and conditions of the Contractor shall only become part of the framework agreement if and to the extent that the Client has expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if the Customer accepts the Contractor's deliveries without reservation in the knowledge of the Contractor's General Terms and Conditions.

 

1.4 Individual agreements made with the Contractor in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GPC. The content of such agreements shall be governed by a written framework agreement or the written confirmation of the Client.

 

1.5 References to the validity of country-specific statutory provisions are for clarification purposes only. Even without such clarification, the country-specific statutory provisions shall apply insofar as they are not directly amended or expressly excluded in these GPC.

 

2. prizes

2.1 Unless otherwise agreed in individual cases, the "all inclusive" prices listed in the framework agreement include all services and ancillary services of the Contractor (e.g. assembly, installation, etc.), as well as all ancillary costs (e.g. proper packaging, transportation costs including any transportation and liability insurance, etc.). The Contractor shall take back packaging material free of charge upon request and dispose of it properly.

 

3. delivery, delay in delivery

3.1 The delivery time specified in the framework agreement is binding. The Contractor is obliged to inform the Client immediately in writing if it is likely that it will not be able to meet agreed delivery times - for whatever reason.

 

3.2 If the Contractor does not perform its service or does not perform it within the agreed delivery period or is in default, the rights of the Client - in particular to rescission and damages - shall be determined in accordance with the statutory provisions. The provisions in the following section 3.3. remain unaffected by this.

 

3.3 If the Contractor is in default, the Customer shall be entitled, in addition to further statutory claims, to demand lump-sum compensation for its damage caused by default in the amount of 0.15 % of the net price per completed calendar day, but not more than a total of 5% of the net price of the products delivered late. The Client reserves the right to prove that it has incurred higher damages. The Contractor reserves the right to prove that the Client has incurred no damage at all or only significantly less damage.

 

3.4 The Contractor shall also be liable for deliveries not made on time or not made at all caused by its suppliers.

 

4. delivery, transfer of risk

4.1 The Contractor shall bear the procurement risk for its products and services.

 

4.2 Delivery shall be "free domicile" to the place specified in the individual call-off. The respective destination is also the place of fulfillment (obligation to deliver).

 

4.3 The delivery bill must be attached directly to the delivered products. The delivery bill must contain the following information: The individual call-off number, the individual call-off date, the individual call-off issuer, the quantity and the article number of the CL (without price), the delivery date, the serial number (if available) and the batch number. The delivery bill must be in the client's national language or at least in English. In addition, receipt of the delivery must be confirmed on the delivery bill by an authorized person of the Client by signature and date.

 

4.4 The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly in the event of acceptance. If the Customer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.

 

5. default of payment

5.1 The statutory provisions shall apply to the occurrence of default on the part of the Client. In any case, however, a written reminder must be sent to the Client by the Contractor.

 

5.2 The Client shall not owe any interest on maturity.

 

6. invoicing

6.1 The Contractor undertakes to issue invoices/credit notes that meet the arithmetical, factual and formal requirements of the Value Added Tax Act or other applicable legal bases at the respective place of performance, e.g. for Germany in accordance with Sections 14 and 14a UStG (as amended), and in which the individual call-off number is stated. The Client shall be entitled not to process incorrectly issued or incomplete invoices / credit notes and to return them to the Contractor freight collect. The term of payment shall not commence until the date of receipt of a correct and complete invoice as defined above by the Contractor. In this case, the Client shall not be responsible for any resulting delays in processing and payment. The invoice must include the following item-related information:

• Customs tariff number / goods tariff number
• Country of origin (no indication of EU / EEG only)
• Batch number, serial numbers per order

 

6.2 Missing or incomplete delivery bills, i.e. delivery bills that do not comply with the requirements set out in section 4.3, sentences 1 and 2, shall also automatically lead to a postponement of the payment date at the expense of the Contractor until the complete and correct documents have been submitted. In this case, the Client shall not be responsible for any resulting delays in processing and payment.

 

6.3 Invoices / credit notes are not to be enclosed with the deliveries, but sent by separate e-mail to the specified address (Rechnung@debag.com).

 

6.4 The Contractor undertakes, in the case of agreed reimbursements etc., to include the note "With regard to fee reductions, we refer to the current payment and conditions agreements" on each invoice with the framework agreement number and date

 

7. liability for defects / obligation to inspect and give notice of defects

7.1 The statutory provisions shall apply to the rights of the Customer in the event of material defects and defects of title of the products (including incorrect and short deliveries as well as improper assembly, defective assembly and operating instructions) and in the event of other breaches of duty by the Contractor, unless otherwise stipulated below.

 

7.2 If a delivery or part of a delivery of the products does not correspond to the agreed quality, if the products are unsuitable for use or do not comply with the current state of the art or are otherwise defective, the Customer shall be entitled to the statutory rights and contractual claims for subsequent performance, withdrawal or reduction as well as damages or reimbursement of futile expenses in full. The product descriptions and specifications listed in the framework agreement or its annexes or which are the subject of the respective individual call-off shall be deemed to be an agreement on the quality.

 

7.3 The statutory provisions (Section 377 of the German Commercial Code (HGB)) shall apply to the commercial duty to inspect and give notice of defects, subject to the following proviso: The Customer's duty to inspect shall be limited to defects which become apparent during the incoming goods inspection under external examination, including the delivery documents, as well as during the quality control in the random sampling procedure (transport damage, externally recognizable obvious defects, incorrect and short delivery). The incoming goods inspection is usually carried out when the products are delivered. The Customer shall not be obliged to carry out any further inspections and/or notifications. In all cases, the complaint (notification of defects) shall be deemed to be immediate and timely if it is received by the Contractor within seven working days. Non-recognizable defects must be reported within seven working days of their discovery. Neither confirmation of receipt of goods by signing the delivery bill nor payment of the purchase price shall constitute approval or proof of defect-free delivery.

 

7.4 In the event of defects in the delivered products, the Contractor shall be obliged to provide subsequent performance - at the Client's discretion by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery) - within a reasonable period set by the Client. If the Contractor fails to fulfill its obligation of subsequent performance within the period set by the Customer, the Customer may remedy the defect itself and demand compensation from the Contractor for the expenses required for this. If subsequent performance by the Contractor has failed or is unreasonable for the Customer (e.g. due to particular urgency, danger or operational safety or imminent occurrence of disproportionate damage), no deadline need be set; the Contractor must be informed immediately.

 

7.5 In the event of a delivery of products that are not contractually conditioned or not approved in writing by the Customer, the Contractor undertakes to collect these products immediately and free of charge upon request. In addition, at the request of the Customer, to a full refund of payments already made and to the assumption of any claims for damages on the part of the Customer. Any further claims of the Customer for compensation for consequential damages shall remain unaffected by this.

 

7.6 The Contractor is obliged to take out business liability insurance with sufficient cover, if necessary with integrated recall cost insurance.

 

8. statute of limitations

8.1 The reciprocal claims of the Client and the Contractor shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.

 

8.2 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims for defects is 3 years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall also apply accordingly to claims arising from defects of title, whereby the statutory limitation period for third-party claims for restitution in rem (Section 438 (1) No. 1 BGB) shall remain unaffected; furthermore, claims arising from defects of title shall in no case become time-barred as long as the third party can still assert the right - in particular in the absence of a limitation period - against the Customer.

 

8.3 The limitation periods under sales law, including the above extension, shall apply - to the extent permitted by law - to all contractual claims for defects. Insofar as the Customer is also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period shall apply (Sections 195, 199 BGB), unless the application of the more specific limitation periods of the law on sales leads to a longer limitation period in individual cases - which then takes precedence.

 

9 REACH Regulation

9.1 The Contractor undertakes to pre-register or register all substances as such, in preparations and in articles, insofar as the Contractor has to fulfill corresponding registration obligations in accordance with the provisions of the REACH Regulation, if necessary through the involvement of an only representative. Insofar as the pre-registration or registration is not carried out by the Contractor, the Contractor shall work towards the corresponding pre-registration or registration vis-à-vis its upstream suppliers/subcontractors and confirm this in writing. The Contractor shall indemnify the Customer in full against the costs of any necessary fulfillment of registration obligations within the meaning of the REACH Regulation.

 

9.2 The Contractor shall fulfill the information obligations in the supply chain provided for in the REACH Regulation in a proper, complete and timely manner without further request; this expressly applies to safety data sheets pursuant to Art. 31 para. 3 REACH Regulation. The information is an integral part of the purchased item within the meaning of Section 434 (1) BGB.

 

10. supplier's declaration

The Contractor undertakes to submit a long-term supplier's declaration for goods with preferential origin characteristics in accordance with Regulation (EC) No. 1207/2001. The Contractor shall send this for the first time upon commencement of the business relationship and subsequently, depending on the period of validity of its supplier's declaration, without being requested to do so by the Customer. If it is not possible for him to issue a long-term supplier's declaration, individual supplier's declarations shall be shown on the invoice for each consignment.

 

11. confidentiality

11.1 Confidential information refers to all information and documents, including contractual documents, which are either expressly marked as "confidential" or whose confidentiality results from the circumstances or the nature of the information itself. This includes, in particular, technical, commercial, business-related or other information, information about products, services and their prices, as well as information about the Client, its employees, marketing strategies and financial matters. Information which (I) was already known to the Contractor before it was notified by the Client, (II) became known to the Contractor independently of its own development without the Contractor having made use of the Client's confidential information, (III) the Contractor received from a third party, which is not restricted with regard to the use or disclosure of such information, (IV) is or becomes generally known without the Contractor being responsible for or having caused this, or (V) a party has exempted the Contractor in writing from the requirement of confidentiality, shall not be deemed to be confidential information.

 

11.2 The Contractor shall treat all confidential information it receives from the Client as confidential and use it exclusively for the purpose of providing the service. The Contractor shall furthermore be obliged to protect the Confidential Information from unauthorized access and to treat it with the same care that it applies to its own, equally confidential information, but at least with the care of a prudent businessman. Any disclosure of confidential information to third parties, including to the Client's own employees or employees of the Client who are not directly involved with the subject matter of the framework agreement or the resulting individual call-offs, is prohibited.

 

11.3 The Contractor shall also impose the confidentiality obligations on its employees and any subcontractors approved in advance by the Client. This shall also apply indefinitely for the period after termination of the contractual relationship.

 

11.4 Insofar as there are no statutory retention obligations to the contrary, the Contractor shall be obliged to have confidential information contained in documents, data carriers and other materials destroyed by a specialist disposal company with proof of disposal immediately after termination of the contractual relationship at its own expense. At the Client's request, the Contractor shall be obliged to send the documents, data carriers and other materials containing confidential information to the Client at any location specified by the Client at the Contractor's expense; in this case, clause 11.4 sentence 1 shall not apply.

 

11.5 If the Contractor fails to comply with the obligations set out in this clause, the Contractor shall be obliged to pay the Client a penalty of 0.15 % of the annual order volume in each case of non-compliance, but not more than a total of 5 % of the annual order volume. The amount is due when the infringement becomes known. The burden of proof for non-culpability shall be borne by the Contractor. The Client's claims for damages in excess of the contractual penalty shall remain unaffected.

 

12. data protection

12.1 The Contractor undertakes to comply with the relevant data protection regulations. In particular, the Contractor shall only collect, process and use personal data insofar as this is permitted by law or the data subject has consented to the respective use in writing. Furthermore, the Contractor shall oblige its employees to comply with data secrecy in accordance with the data protection requirements under the GDPR.

 

12.2 The Contractor shall also take all necessary technical and organizational measures to secure the data it collects, stores, uses and stores on behalf of the Client. In particular, it shall protect the data processing systems to which it has access against unauthorized and unauthorized access and against attacks of any kind by its own employees or third parties or against accidental destruction or loss. It must be ensured that it is subsequently possible to check and determine whether and by whom personal data has been entered, changed or removed from data processing systems.

 

12.3 The Contractor shall ensure that personal data cannot be read, copied, changed or removed without authorization during electronic transmission or during its transport or storage and that it is possible to check and determine at which point a transmission of personal data is intended by means of data transmission devices. 12.4 The Contractor shall ensure that data collected for different purposes can be processed separately. 12.5 The Client shall be entitled to check compliance with the data protection and security requirements itself or through appropriately commissioned third parties on an annual basis, after prior reasonable notice. Any costs incurred as a result shall be apportioned according to causation, provided no serious deficiencies are identified. 12.6 If the Contractor fails to comply with the obligations set out in this clause, the Contractor shall be obliged to pay the Client a penalty of 0.15 % of the annual order volume in each case of non-compliance for which it is responsible, but not more than a total of 4 % of the annual order volume. The burden of proof for non-culpability shall be borne by the Contractor. The Client's claims for damages in excess of the contractual penalty shall remain unaffected.

 

13. property rights

13.1 The Contractor shall be liable for ensuring that its delivery does not infringe industrial property rights (e.g. patents, utility models, trademarks, etc.), copyrights and other rights of third parties. If a claim is asserted against the Client by a third party due to an alleged infringement of rights, the Contractor shall be obliged to indemnify the Client against such claims upon first request.

 

14. information obligations

14.1 The Contractor shall be obliged to notify the Client in good time of any far-reaching changes in its ownership structure.

 

14.2 The Contractor shall be obliged to report the sales/deliveries made with the Client at the Client's request in accordance with the Client's specifications.

 

14.3 The Contractor shall be obliged to provide the Client with detailed product descriptions or elaborations as well as detailed image material (format as requested by the Client) of the conditioned articles in computerized form upon request. This applies in particular to formulations of products where there is a possibility that hazardous substances may be detected in the product. In addition, the Contractor shall be obliged to send the Customer electrical/connection diagrams and the like upon request.

 

14.4 The Contractor shall prepare the INTRASTAT declaration for the intra-trade statistics of the Federal Statistical Office in due form and time. Prior to the first delivery, the Contractor shall provide the Client with the "goods description" according to the INSTRASTAT report for the respective delivered products in writing without further request.

 

15. plants

15.1 A change in products, as well as a possible change in prices, which necessitates an adjustment of the annexes to the framework agreement, shall not affect the validity and enforceability of the framework agreement if the annexes are amended or revised by mutual agreement. The amended or revised versions of the annexes shall be set out in writing by mutual agreement, initialed by the Contractor and the Client in two versions and then attached to the framework agreement in exchange for the annexes that are no longer valid.

 

16. benefits/gifts

16.1 The Contractor shall refrain from making any benefits/gifts to the Client.

 

 

17 Choice of law, place of jurisdiction

17.1 The law of the Federal Republic of Germany shall apply to the framework agreement and the individual call-offs made on the basis of the framework agreement, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The conditions and effects of the retention of title are subject to the law at the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.

 

17.2 If differences of opinion or disputes arise from or in connection with the framework agreement and/or the individual call-offs based on it, the parties shall use their best endeavors to settle these in direct negotiations.

 

17.3 The exclusive national and international place of jurisdiction for all legal disputes arising from or in connection with the framework agreement, including in connection with deliveries and services on the basis of this framework agreement in the broadest sense, shall be the place of business of the Client. This shall not apply if an exclusive place of jurisdiction is prescribed by law.

 

 

18 Other provisions

18.1 The Contractor may not use the business relationship with the Client as a reference to the outside world or to third parties (homepage, company presentations, etc.). At the request of the Contractor, the Client may grant written permission for this in individual cases (charitable purposes, etc.); however, the Client shall not be obliged to do so.

 

18.2 "Advertising stickers" and "customer service address stickers" etc., as well as other information material of the Contractor may only be used with the express permission of the Client.