General terms and conditions of sale and purchase.
1.1 These General Terms and Conditions of Sale (hereinafter referred to as "GTCS") shall apply to all our business relations with our customers (hereinafter referred to as "Purchaser"), provided that they are entrepreneurs within the meaning of Article 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law.
1.2 The GTCS apply in particular to contracts for the sale and/or delivery of movable goods, in particular vehicles of any kind, trailers, accessories and spare parts (hereinafter referred to as "goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Articles 433, 650 BGB). Unless otherwise agreed, the GTCS in the version valid at the time of the Purchaser's order or in any case in the version last made available to them in written form shall also apply as a framework agreement for similar future contracts without our having to refer to these again in each individual case.
1.3 Our GTCS apply exclusively. Any deviating, contradictory or supplementary general terms and conditions of the Purchaser shall only then and insofar become part of the contract to that extent to which we give our express written consent. This requirement for consent shall be applicable in all cases, for example, even if we are aware of the GTCS of the Purchaser and make a shipment without reservation.
1.4 Individual agreements with the Purchaser made on a case-by-case basis (including subsidiary agreements, supplementary terms and amendments) shall take precedence over these GTCS in all cases. Subject to evidence to the contrary, a written contract or our written confirmation shall be binding for the content of such agreements.
1.5 Legally relevant declarations and notifications by the Purchaser with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in the case of doubts about the legitimacy of the declarant, remain unaffected.
1.6 References to the applicability of statutory regulations shall have only an explanatory function. The statutory regulations shall therefore apply even without any such explanation insofar as they have not been directly amended or explicitly excluded in these GTCS.
2. Conclusion of Contract
2.1 Our offers are subject to change and non-binding. This shall be the case even if we have supplied the Purchaser with catalogues, technical documentation (e.g. drawings, plans, evaluations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve ownership rights and copyrights. They may not be made accessible to third parties without our express written consent.
2.2 Information from catalogues, technical documentation (such as drawings, plans, evaluations, calculations, references to DIN standards, etc.), other product descriptions or documents which are not produced by us, used by us or otherwise attributable to us must be presented to us by the Purchaser – insofar as the Purchaser bases their decision to conclude the contract on such information. In this case, we can comment on their accuracy. If the Purchaser violates this obligation, such information shall not be binding unless it has been expressly declared in writing to be part of the contract.
2.3 The order of the goods by the Purchaser is considered a binding offer for the conclusion of a purchase, work delivery or other contract. Unless stated otherwise in the order, we shall be entitled to accept this contract offer within 14 days of its receipt by us.
2.4 Acceptance of the above contractual offer by us may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Purchaser.
3. Delivery time; delay
3.1 The delivery time shall be agreed upon individually on a case-by-case basis or stated by us at the time of acceptance of the order. Should this not be the case, the delivery time shall be around four (4) weeks from the date of conclusion of the contract.
3.2 The delivery time shall be extended by a reasonable period if the Purchaser requests changes or additions after conclusion of the contract. We will immediately inform the Purchaser of the expected new delivery time.
3.3 Should we be unable to adhere to the binding delivery times for reasons beyond our control (non-availability of service), we shall inform the Purchaser immediately and at the same time provide information about the revised, expected new delivery time. Should the service not be available even within the revised delivery time, we shall be entitled to rescind the contract in whole or in part; any payments already made by the Purchaser in conjunction with the contract shall be refunded immediately. A case of non-availability of service in this sense shall be deemed to be in particular the failure of our supplier to deliver to us in good time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
3.4 The occurrence of a delay in delivery shall be determined in compliance with the statutory regulations. A reminder by the Purchaser shall, however, be required in all cases. Should we be in default of delivery, the Purchaser shall be entitled to demand lump-sum compensation for the damages incurred due to the delayed delivery. The lump-sum compensation shall be 0.5 percent of the net price (delivery value) for each full week of the delay, but not more than 5 percent of the delivery value of the delayed goods. We shall be entitled to prove that the Purchaser has not experienced any loss or a significantly smaller loss than the above lump sum.
3.5 The rights of the Purchaser pursuant to Section 8 of these GTCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
4. Delivery, passage of risk, acceptance, delay in acceptance
4.1 Delivery shall be ex-warehouse Lastrup (ex-works according to Incoterms 2020), which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the Purchaser, the goods shall also be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to decide on the method of shipment (in particular transport company, shipping route, packaging) ourselves.
4.2 The risk of accidental loss or destruction or accidental deterioration of the goods shall pass to the Purchaser at the latest on the handover of the goods. In the case of sale to destination, however, the risk of accidental loss or destruction or accidental deterioration of the goods and the risk of delay shall already pass with the delivery of the goods to the carrier, the freight forwarder or the other person or institution determined to carry out the shipment. If an acceptance procedure has been agreed upon, this shall be authoritative for the passage of risk. The statutory provisions of the law on contracts for work and services shall also apply correspondingly in other respects to an agreed acceptance procedure. If the Purchaser is in default of acceptance this shall be deemed to be the equivalent of handover or acceptance.
4.3 Should the Purchaser be in default of acceptance, violate any other cooperation obligation or if our delivery is delayed for other reasons attributable to the Purchaser, we shall be entitled to claim compensation for the resulting damages, including additional expenses (e.g. storage costs).
5. Prices and terms of payment; invoicing and credit note dispatch
5.1 Unless otherwise agreed in individual cases, our current prices at the time of contract conclusion shall apply ex-warehouse plus VAT at the statutory rate.
5.2 In the case of sale to destination (Section 4.1), the Purchaser shall bear the transport costs ex-warehouse and the costs of any transport insurance requested by the Purchaser. Any customs duties, charges, taxes and other public duties shall be borne by the Purchaser. Transport packaging and all other packagings in accordance with the Packaging Ordinance will not be taken back; they shall become the Purchaser's property, except for pallets.
5.3 The purchase price is due and payable within 30 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare such a corresponding reservation at the latest with the order confirmation.
5.4 On the expiry of the aforementioned term for payment, the Purchaser shall be in default of payment. During the period of delay, interest shall be payable on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further compensation for damages due to default. Our entitlement to commercial maturity interest (Article 353 HGB – German Commercial Code) shall remain unaffected vis-à-vis merchants.
5.5 The Purchaser shall only be entitled to exercise offsetting rights or rights of lien or retention to the extent that the claim is undisputed or has been finally adjudicated. In the event of defects in the delivery, the Purchaser's counter rights shall remain unaffected, in particular in accordance with Section 7.6 sentence 2 of these General Terms and Conditions.
5.6 If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the Purchaser's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Article 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-built products), we may declare our withdrawal from the contract immediately; the statutory regulations regarding the dispensability of setting a deadline shall remain unaffected.
5.7 We prepare and send all invoices and credit notes exclusively in electronic form.
6. Retention of title
6.1 We reserve the title to the sold goods until full payment of all our current and future claims from the purchase contract and a current business relationship has been received (secured claims).
During the period of the reservation of title, we shall have the right to retain ownership of the vehicle documents. Our reserved title shall not pass to the Purchaser or third parties even if the vehicle documents are sent to a credit institute of the Purchaser on condition that they are held only in trust against payment or are handed over to the Purchaser.
6.2 The Purchaser is obliged to treat the goods with care as long as the ownership has not yet been transferred to them. If the goods are of high value, they shall be obliged in particular to insure them adequately at replacement value against theft, fire and water damage at their own expense. The Purchaser assigns their future claims for reimbursement against their insurer to us by way of security. We hereby accept this assignment. However, we shall only make use of the assignment in the event that insolvency proceedings have been applied for in respect of the Purchaser's assets or the Purchaser is insolvent or their financial situation deteriorates to such an extent that insolvency is to be feared. If maintenance and inspection work has to be carried out, the Purchaser must carry this out in good time at their own expense.
6.3 The goods under retention of title shall not be either pledged or assigned by way of security to third parties before full payment of the secured claims. The Purchaser must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access (e.g. seizures) to the goods belonging to us.
6.4 The Purchaser shall allow us to inspect the goods at any time during their business hours. The Purchaser shall inform us without delay of the location of the goods and of any change in the location of the goods, and to inform us in writing without delay if and insofar as seizures are made by third parties on our reserved goods. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with Article 771 ZPO (German Code of Civil Procedure), the Purchaser shall be liable for the loss incurred by us.
6.5 In the event of a breach of contract by the Purchaser, in particular in the event of non-payment of the due purchase price, we shall be entitled in accordance with the statutory provisions to withdraw from the contract or/and to demand the surrender of the goods on the grounds of the retention of title. The demand for the surrender of the goods shall not be deemed to include a simultaneous declaration of withdrawal; we shall be entitled to simply demand the surrender of the goods and to reserve the right of withdrawal. If the Purchaser does not pay the due purchase price, we may assert these rights only if we have first set the Purchaser an appropriate time limit for payment without result or if setting a time limit may be dispensed with in accordance with the statutory provisions.
6.6 Until revocation in accordance with the following Section 6.6.3, the Purchaser shall be entitled to sell and/or process the goods under retention of title during the normal course of their business. In this case, the following additional provisions shall apply.
6.6.1 The retention of title shall apply to the products which are produced by processing, mixing or combination of our goods at their full value, whereby we shall be deemed the manufacturer. If, in the event of processing, mixing or combination with goods of third parties, their retention of title is maintained, we shall acquire joint title in the ratio of the invoice values of the processed, mixed or combined goods. In all other points, the same shall apply to the resulting product as to the goods supplied under retention of title.
6.6.2 The Purchaser shall here and now assign any claims against third parties resulting from the sale of the goods or the product in full or up to the value of our joint title in accordance with the previous clause to us as security. We hereby accept the assignment. The Purchaser's obligations laid down in Section 6.3 shall also apply to the assigned claims.
6.6.3 Both we and the Purchaser shall be entitled to collect the claim. We undertake not to collect the claim as long as the Purchaser meets their payment obligations towards us, there is no deficiency in their ability to pay and we do not assert the reservation of title by exercising a right in accordance with Section 6.5. If this is the case, however, we shall be entitled to demand that the Purchaser notifies us of the assigned claims and their debtors, to provide us with all the information necessary for the collection, to hand over the corresponding documentation and to notify the debtors (third parties) about the assignment. Furthermore, in this case we are entitled to revoke the Purchaser's authority to further sell and process the goods subject to retention of title.
6.6.4 Should the realisable value of the securities exceed our claims by more than 10 percent, we shall at the request of the Purchaser release securities at our discretion.
7. Purchaser's claims of defects, design and form changes, colour deviations
7.1 The statutory regulations shall apply to the rights of the Purchaser in case of defects of quality and title (including incorrect delivery and shortfall in delivery as well as improper assembly or faulty assembly instructions), unless otherwise provided for below. In all cases, the special statutory provisions remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse in accordance with Articles 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the Purchaser or another entrepreneur, e.g. by installation in another product.
7.2 The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods. All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were made publicly known (in particular in catalogues or on our internet website) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods – unless and insofar as otherwise agreed. We reserve the right of changes in design or form and deviations in colour, provided the goods are not significantly changed, the changes are reasonable for the Purchaser and the goods can continue to be used unchanged for the agreed purpose. The data in the descriptions on performances, weight, operating costs, consumption, speed, etc. are to be regarded as only approximate and do not constitute an agreement on quality in accordance with Article 434 Section 1 (1) of the BGB.
7.3 If no agreement is reached on quality, the existence or non-existence of a defect shall be assessed according to the statutory provisions (Article 434 Section 1 (2) (3) BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the Purchaser has not drawn our attention as being decisive for their purchase.
7.4 As a general rule we shall not be liable for defects of which the Purchaser is aware at the time of conclusion of the contract or is not aware due to gross negligence (Article 442 BGB). Furthermore, the Purchaser's claims for defects presuppose that they have satisfied their statutory obligations for inspection and reporting of defects (Articles 377, 381 HGB). In the case of spare parts and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. Should any defect be found upon delivery, inspection or at any later point in time, we must be notified accordingly in writing without delay. In all cases obvious defects must be reported in writing within five working days of delivery and defects that cannot be detected during the inspection must be reported in writing within the same period of time after discovery. If the Purchaser fails to carry out a proper inspection and/or to give notice of defects, our liability for the defect which was not reported, not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
7.5 If the goods supplied are faulty, we can initially choose whether we shall provide subsequent performance by remedying the defect (subsequent improvement) or by delivery of faultless goods (substitute delivery). Our right to refuse subsequent performance under the statutory preconditions shall remain unaffected.
7.6 We shall be entitled to make the due subsequent performance dependent on the Purchaser paying the due purchase price. The Purchaser shall, however, be entitled to withhold a portion of the purchase price in reasonable relationship to the defect.
7.7 The Purchaser shall allow us the necessary time and opportunity for due subsequent performance and in particular shall hand over the respective goods for inspection. In the event of substitute delivery, the Purchaser is obliged to return the faulty goods to us in compliance with the statutory regulations. Subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obliged to install it.
7.8 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we shall be entitled to demand reimbursement from the Purchaser of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Purchaser.
7.9 In urgent cases, e.g. if the operational safety is at risk, or to prevent disproportionate damages, the Purchaser shall have the right to remedy defects themselves and to demand reimbursement of the expenses objectively necessary to this purpose. We shall be advised without delay, if possible beforehand, of such self-remedying of defects. The right of self-remedy shall not apply if we would have been entitled to refuse corresponding subsequent performance in accordance with the statutory provisions.
7.10 If the subsequent performance has failed or a reasonable deadline to be set by the Purchaser for the subsequent performance has expired unsuccessfully or it is dispensable in accordance with the statutory regulations, the Purchaser shall be entitled to withdraw from the purchase contract or to reduce the purchase price. This right of withdrawal shall not exist, however, in the case of an insignificant defect.
7.11 Even in the case of defects, claims of the Purchaser for damages or reimbursement of fruitless expenses shall only exist in accordance with Section 8 of these GTCS and shall otherwise be excluded.
8. Other liability
8.1 Unless otherwise stated in these GTCS, including the provisions set out below, we shall be liable in case of any breach of contractual or non-contractual duties in accordance with the legal provisions.
8.2 We shall be liable for damages – on whatever legal grounds – within the scope of fault-based liability in the case of intent or gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty),
a) for damage caused by loss of life, bodily injury or damage to health,
b) for damage caused through a breach of major contractual obligations (obligations, the proper fulfilment of which constitutes a condition sine qua non and on the fulfilment of which the Purchaser regularly relies and may rely, so-called “cardinal obligation”); in this case, however, our liability shall be limited to the reimbursement of the foreseeable, typically occurring damages.
8.3 The limitations of liability resulting from Section 8.2 shall also apply to third parties as well as in the case of breaches of duty by persons (also in their favour) for whose fault we are responsible in accordance with statutory provisions. They do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims by the Purchaser under the provisions of the Product Liability Act.
8.4 The Purchaser may withdraw from the contract on the grounds of breach of obligations which is not based on a defect of the goods only if we are responsible for the breach of the obligations. A free right of termination of the Purchaser (in particular in accordance with Articles 650, 648 BGB) is excluded. Otherwise the statutory requirements and legal consequences shall apply.
9.1 In deviation from Article 438 Section 1 No. 3 BGB, the general limitation period for claims from defects of quality and title shall be one year from delivery of the goods. If acceptance has been agreed, the limitation period shall begin with the acceptance.
9.2 The above limitation periods of the Sale of Goods Act shall also apply to contractual and non-contractual claims for damages by the Purchaser based on a defect in the goods, unless the application of the regular statutory limitation period (Articles 195, 199 BGB) would result in a shorter limitation period in the individual case. Claims for damages on the part of the Purchaser pursuant to Section 8.2 (1) and (2) clause a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.
10. Applicable law and jurisdiction
10.1 Solely the laws of the Federal Republic of Germany shall apply for these GTCS and all contractual relationships between us and the Purchaser to the exclusion of all international uniform law, in particular of the United Nations' Convention on Treaties concerning the International Sale of Goods.
10.2 If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a separate fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly as a result of this contract shall be our business headquarters in Lastrup. The same applies if the Purchaser is an entrepreneur in the sense of Article 14 BGB. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or a prior individual agreement or at the general place of jurisdiction of the Purchaser. Overriding statutory provisions, in particular on exclusive competences, shall remain unaffected.
Valid as of 07 / 2021
1. General information
1.1 These General Purchasing Conditions (hereinafter referred to as the ‘GPCs’) apply to all of our business relationships with our sellers or suppliers and other business partners (hereinafter collectively referred to as the ‘seller’ or ‘supplier’), provided that they are contractors within the scope of Section 14 of the German Civil Code, legal entities under public law or special funds under public law.
1.2 The GPCs particularly apply to contracts regulating the purchase and/or delivery of movable items (‘goods’), irrespective of whether the supplier manufactures the goods themselves or purchases them from subcontractors (Sections 433 and 650 of the German Civil Code). Unless agreed otherwise, the GPCs in the version valid at the time of our purchase order or, in any case, in the version most recently communicated to the supplier in text form shall also apply as a framework agreement to similar future contracts, without us having to refer back to them on a case-by-case basis.
1.3 The GPCs shall apply exclusively. The seller’s or the supplier’s conflicting, supplementary or deviating conditions shall only become part of the contract if and to the extent that we have expressly agreed to the validity of the same in writing. This approval requirement shall also apply if we accept the delivery without reservation or pay for it in knowledge of the supplier’s conditions.
1.4 Individual agreements made with the seller on a case-by-case basis (including side agreements, amendments and modifications) shall always have priority over these purchasing conditions. In the absence of proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
1.5 If a framework contract exists between the contracting parties, the supplier shall be obligated to accept and execute our purchase orders in accordance with this respective framework contract. Unconditional acceptance of the delivery or service shall not change anything in this regard.
2. Quotations, purchase orders, written form
2.1 Quotations and cost estimates shall be generated free of charge. In addition, we shall not bear any costs or pay any remuneration for visits, planning and other preliminary activities that the supplier carries out in connection with the submission of quotations, unless this has been agreed separately on a case-by-case basis.
2.2 Our purchase orders are considered to be binding on written submission or confirmation at the earliest. The seller shall notify us of obvious errors (e.g. typing and calculation errors) and incompleteness in the purchase order, including the purchase order documents so that we can correct or complete the same prior to acceptance; otherwise, the contract shall be deemed not concluded.
2.3 Our purchase orders are considered to be binding on written submission or confirmation at the earliest. The seller shall notify us of obvious errors (e.g. typing and calculation errors) and incompleteness in the purchase order, including the purchase order documents so that we can correct or complete the same prior to acceptance; otherwise, the contract shall be deemed not concluded.
A delayed acceptance shall be considered a new quotation and requires our acceptance.
2.4 Purchase orders and transactions must be issued in writing. Verbal agreements of any kind – including subsequent modifications and amendments – shall only become binding if confirmed by us in writing. Remote data transmission or fax shall also be considered the written form.
3. Prices and terms of payment
3.1 The prices listed in our purchase order are binding. All prices are net, i.e. exclusive of statutory value-added tax.
3.2 Unless agreed otherwise, all prices shall be understood as including freight to our determined place of receipt / performance. They include all of the seller’s services and ancillary services (e.g. assembly, installation), as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
3.3 Invoices shall be prepared in accordance with the stipulations set down in our purchase order. If our listed purchase order details are missing, we shall not process or pay invoices; the supplier shall be responsible for all the consequences of failing to observe this obligation, unless they can prove that they are not responsible for the same.
3.4 The agreed price shall be due for payment within 30 calendar days from complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice as outlined above in Section 3.3. If we make payments within 14 calendar days, the seller shall grant us a 3% discount on the net invoice amount.
In the case of bank transfer, payment shall be deemed to have been made on time if our bank receives our remittance order before the payment deadline; we are not responsible for delays caused by the banks involved in the payment process.
3.5 We do not owe any interest payable from the due date in accordance with Section 353 of the German Commercial Code. The statutory provisions apply to default on payment.
3.6 We are entitled to offsetting and retention rights, as well as to the defence of non-performance of the contract, to the extent permitted by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims arising against the seller due to incomplete or inadequate services.
3.7 The seller has an offsetting or retention right based only on counter-claims that have been legally established or are undisputed.
4. Dispatch regulations, origin of the goods
4.1 Unless expressly agreed otherwise, the ordered goods shall be delivered against a supplier invoice and at the supplier’s risk. Unless expressly agreed otherwise in writing, all deliveries shall include freight in accordance with Incoterms 2010 (or in accordance with the Incoterms 2020, which shall apply to legal transactions made from 01/01/2020 onwards) and DDP conditions (including packaging, insurance, customs clearance, etc.) to the place specified in the purchase order. If the destination is not specified and nothing else has been agreed otherwise, delivery shall be made to our registered office situated at 49688 Lastrup. The respective destination is also the place of performance for the delivery and any supplementary performance (debt to be discharged at the creditor’s domicile).
4.2 The supplier is obligated to pack and load the goods to be delivered in such a way that the delivery remains undamaged during loading, unloading and transport. The supplier shall be liable for damage to the goods to be delivered resulting from insufficient packaging and/or loading. Our packaging regulations, which can be provided to the supplier in text form on request, shall apply.
4.3 Two copies of a delivery note, containing all the labels stipulated in our order
(in particular: date of issue and dispatch, contents of the delivery (item number and quantity) and our order identifier (date and number)), must be enclosed with each consignment. If the delivery note is missing or incomplete, we are not responsible for any resulting delays in processing and payment. We must be sent a corresponding dispatch note with the same content separately from the delivery note.
The delivery note must be placed in a document dispatch pocket featuring the easy-to-read ‘Delivery note here’ indicator and attached to the consignment of goods with adhesive.
4.4 If the delivery contains hazardous goods that are subject to specific national and/or international dispatch regulations, the supplier must package the goods accordingly, secure them, mark them and dispatch them using an appropriate method.
4.5 If the delivery has to comply with the EU’s preferential rules of origin, the supplier shall provide us with the relevant certificates of origin.
4.6 The supplier shall either leave the packaging material at the place of receipt free of charge or take it back at our discretion.
5. Provided documents, provisions, secrecy
5.1 We reserve the property rights and copyrights to all the documents we provided to the supplier in connection with the purchase order, such as drawings, samples, models and other documents, as well as all auxiliary aids that are necessary or helpful for the supplier to execute purchase orders. They may only be used in accordance with their intended purpose and must be returned to us on first request at any time, but at the latest following completion of the contract, or destroyed at our request. If the supplier does not accept our purchase order within the time period stipulated in Section 2.3, the documents must be returned to us without delay.
5.2 All documents, information concerning provisions and other know-how provided to the supplier during the collaborative business relationship must be kept strictly confidential vis-à-vis third parties and must not be surrendered or otherwise made known to third parties without our explicit written approval.
5.3 The confidentiality obligation shall also apply after this contract has been processed. It shall expire if the manufacturing knowledge contained in the provided illustrations, drawings, calculations and other documents becomes common knowledge or when a period of five years following termination of the contractual relationship has elapsed.
5.4 The above provisions shall apply accordingly to substances and materials
(e.g. software, finished products and semi-finished products), as well as to tools, templates, samples and other objects that we provide to the seller for manufacturing purposes. Insofar as they are not being processed, such objects must be stored separately at the seller’s expense and insured against destruction and loss to a reasonable extent.
If provided parts are processed or reformed by the supplier, such processing or reforming shall be carried out for us and we shall become the owner of the new items. This shall also apply if the parts we provided are inseparably mixed with objects that do not belong to us. Only if this clause conflicts with other suppliers’ reservation of ownership clauses and/or if the supplier’s item is to be viewed as the main item, it shall be considered as agreed that we are entitled to joint ownership at the rate corresponding to our provision’s value in relation to the main item’s overall value.
The supplier shall keep our sole or joint ownership safe on our behalf.
5.5 The supplier must respect our copyrights and other industrial property rights. Use of the same shall only be permitted for contractually agreed purposes. The supplier may not themselves use or exploit or have third parties use or exploit products from documents, drawings, models and other provisions we created, or products manufactured according to our information. The supplier may neither offer nor supply the same to third parties.
6. Time periods, deadlines
6.1 The delivery deadlines and time periods listed in the purchase order are binding. If the delivery time is not stated in the purchase order and has not been agreed on otherwise, it shall be 10 working days from conclusion of the contract. Receipt of a flawless delivery and/or service at the place of receipt and successful completion of acceptance, insofar as agreed or prescribed by law, shall be decisive for compliance with the agreed time periods and deadlines.
6.2 As soon as the supplier realises that they cannot meet the agreed time periods and deadlines, either in whole or in part, they must notify us to this effect without delay – in advance by e-mail or fax – providing details of the causes and the anticipated duration of the delay. The supplier providing us with relevant notifications shall not affect the legal and/or contractual rights and claims due to us as a result of the delay.
6.3 If the supplier enters into default, we shall be entitled to assert the legal claims and, particularly once a reasonable time period has elapsed without any results, we shall be entitled to demand damages instead of performance and to express our desire to withdraw from the contract. If we demand damages, the supplier shall have the right to prove to us that they are not responsible for a breach of obligations.
6.4 Unconditional acceptance of the delayed delivery or service shall not include relinquishment of the damage claims due to us on account of the delayed delivery or service. This shall apply until the fee we owe for the service in question is paid in full.
6.5 The supplier shall only be able to refer to the lack of necessary documents that we have to provide if they have complained about the lack of documents in writing and have not received the documents within a reasonable period of time.
7. Reservation of the contractual penalty
If a contractual penalty has been agreed with the supplier and has fallen due, we shall be able to apply this alongside fulfilment. We undertake to declare the reservation of the contractual penalty to the supplier at the latest within 10 working days, starting from acceptance of the delayed delivery or service. We reserve the right to make additional claims and assert additional rights.
8. Partial deliveries, excess deliveries and inadequate deliveries
8.1 Partial deliveries or partial services require our prior written approval. If we accept the same without prior approval, this shall not give cause for premature maturity of claims to payment, including partial payment claims. We shall not bear additional transport costs, even if we have declared our agreement with partial deliveries or partial services. Our agreement to partial deliveries or partial services shall not justify the supplier claiming agreement to future partial deliveries or partial services, even if we have accepted the same repeatedly and without specific reservations.
8.2 We reserve the right to recognise excess or inadequate deliveries / services. If excess deliveries / services are provided without prior written agreement, we are entitled to reject the delivery / service. We are entitled, at our discretion, either to store the supplier’s deliveries, in respect to the excess delivery, at the supplier’s expense or to return the same to the supplier at their expense.
9. Risk of loss, acceptance or approval, force majeure
9.1 The supplier shall bear the risk of accidental destruction and accidental deterioration until deliveries and services arrive at the place of receipt. If acceptance is prescribed by law or has been agreed, the supplier shall bear the risk until acceptance. Transfer and acceptance shall be equivalent if we are in default with acceptance.
The statutory provisions shall apply to us entering into default of acceptance. However, the seller must also expressly offer us their service if we agreed an identified or identifiable calendar period for an action or cooperation (e.g. provision of material). If we enter into default of acceptance, the seller may demand compensation for their additional expenses in accordance with the statutory provisions (Section 304 of the German Civil Code). If the contract relates to an unacceptable item to be manufactured by the seller (a custom-made item), the seller shall only be entitled to extensive rights if we are obligated to cooperate and are responsible for the failure to cooperate.
9.2 Force majeure, industrial action, interruptions of operations for which we are not responsible, unrest, official measures and other unavoidable events shall free us from the timely acceptance obligation for the duration of such events. During such events, and for a period of two weeks after they have ended, we are entitled to withdraw from the contract, either in whole or in part, without affecting our other rights, provided that these events are not of an insignificant duration and that our demand reduces considerably because of our need to procure the items elsewhere.
Invoices must be submitted separately and in duplicate, quoting the details listed in our purchase order, following complete, flawless delivery or completion of the service or – if acceptance is prescribed by law or agreed – following acceptance for each purchase order or service. We may return unprocessed to the supplier any invoices that do not show the details listed in our purchase order.
11. Liability for defects, limitation period
11.1 Unless stipulated otherwise below, the statutory provisions shall apply to our rights in the event of material defects and defects of title in the goods (including incorrect and inadequate delivery, as well as improper assembly, an inadequate assembly, operating or instruction manual) and in the event of other breaches of duty by the seller.
11.2 In accordance with the statutory provisions, the seller shall be liable in particular for ensuring that the goods have the agreed quality when the risk passes to us. The product descriptions that – particularly by designation or reference in our purchase order – form the subject matter of the respective contract or that have been incorporated into the contract in the same way as these purchasing conditions shall be deemed to be the quality agreement. It makes no difference in this regard whom the product description comes from.
11.3 Existing and/or accompanying labels on the seller’s goods concerning properties / qualities, durability, load capacity, designations, descriptions, accompanying paperwork and/or advertising statements or operating and assembly instructions shall be correct, legally error-free, complete, comprehensible and composed in the German language and the other additional languages that we require. This shall apply accordingly to the services provided by the supplier, and particularly to consultation services.
11.4 Notwithstanding Section 442 (1), Para. 2 of the German Civil Code, we are entitled to assert claims for defects without restriction even if the defect remained unknown to us at the time the contract was concluded due to gross negligence.
11.5 The statutory provisions (Sections 377 and 381 of the German Commercial Code) apply to the commercial obligation to investigate and give notice of defects with the following proviso:
Our investigation obligation is limited to defects that become apparent during our incoming goods inspection under external examination, including the delivery documents (e.g. transport damage, incorrect and inadequate deliveries) or to defects that are recognisable during our random quality control process. Insofar as acceptance has been agreed, we are not obligated to inspect deliveries. Otherwise, it depends on the extent to which an investigation is feasible in the normal course of business, taking the circumstances of the individual case into account. Our obligation to give notice of defects discovered later remains unaffected. Notwithstanding our inspection obligation, our complaint (notice of defects) shall in any case be deemed to be prompt and timely if it is sent within 5 working days of discovery or, in the case of obvious defects, from delivery.
11.6 Supplementary performance shall also include the removal of the defective goods and reinstallation of the same, provided that the goods have been installed in another item in accordance with their intended purpose. The costs that the seller incurs for the purpose of inspection and supplementary performance (including any dismantling and installation costs) shall be borne by the seller, even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request for the removal of defects remains unaffected; however, we are only liable in this respect if we have acknowledged or grossly negligently failed to acknowledge that there was no defect.
11.7 If the seller does not fulfil their supplementary performance obligation – at our discretion either by remedying the defect (rectification) or by delivering a defect-free item (replacement) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the seller. If supplementary performance by the seller has failed or is unreasonable for us (e.g. due to particular urgency, operational safety being in jeopardy or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the seller of such circumstances without delay, if possible in advance.
11.8 Otherwise, in the event of a material defect or a defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.
11.9 Notwithstanding Section 438 (1) (3) of the German Civil Code, the general limitation period for claims for defects is 36 months from the transfer of risk. If acceptance has been agreed, the limitation period shall commence on acceptance. The 36-month limitation period also applies accordingly to claims based on defects of title, whereby the statutory limitation period for in rem claims for restitution of property by third parties (Section 438 (1) (1)) remains unaffected; furthermore, claims based on defects of title do not become statute-barred in any case as long as the third party can still assert the right against us – particularly in the absence of limitation.
12. Product liability, insurance
12.1 Insofar as the supplier is responsible for product damage, they shall be obligated to indemnify us with regard to third-party compensation claims on first request if the cause is set in their domain and organisational area and they themselves are liable vis-à-vis third parties. In this context, the supplier is also obligated to reimburse any expenses according to Sections 683 and 670 of the German Civil Code that arise from or in connection with a recall carried out by us. We shall inform the supplier of the content and scope of the recall measures to be taken – insofar as doing so is feasible and reasonable – and give them the opportunity to comment. Additional legal claims shall remain unaffected.
12.2 The seller shall take out and maintain product liability insurance with lump-sum coverage of at least €50 million for each personal injury / material damage case.
13. Supplier recourse
13.1 Our legally determined rights of recourse within a supply chain (supplier recourse in accordance with Sections 445a, 445b and 478 of the German Civil Code) shall be available to us without restriction in addition to the claims for defects. In particular, we are entitled to demand from the seller exactly the type of supplementary performance (rectification or replacement) that we owe our customer on a case-by-case basis. Our statutory right of choice (Section 439 (1) of the German Civil Code) is not restricted by this.
13.2 Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with Sections 445a (1) and 439 (2) and (3) of the German Civil Code), we shall notify the seller and request a written statement of the facts of the case. If a substantiated statement is not made within a reasonable period of time and if an amicable solution is not reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the seller shall be responsible for proving the contrary.
13.3 Our claims arising from supplier recourse shall also apply if the defective goods have been further processed by us or another contractor, e.g. by incorporation into another product.
14. Third-party property rights
No third-party property rights within the Federal Republic of Germany may be infringed by the delivery of goods and our use of the same. We shall inform the supplier of any claims asserted by third parties. We shall not recognise such claims ourselves. In this regard, we shall authorise the supplier to take over the dispute with the third parties, both judicially and extrajudicially.
In the event of a culpable infringement of third-party property rights, the supplier shall defend third-party claims at their own expense, the claims having been made against us on account of infringements of property rights based on deliveries and services from the supplier. The supplier shall indemnify us against all claims arising from the use of such property rights on first request, provided that they are responsible for them.
If our use of the delivery is impaired by existing third-party property rights, the supplier must, at their own expense, acquire the relevant approval or modify or replace the affected parts of the delivery so that use of the delivery no longer infringes any third-party property rights and simultaneously complies with the contractual agreements.
15. Data protection
We are entitled to save and process all data that the supplier requires in the context of them fulfilling the contractual relationship, even if personal data is involved. The supplier shall obtain any consent required from legal representatives, employees and other persons deployed by the supplier for the fulfilment of their obligations.
16. References / advertising
The supplier is not entitled to use information concerning an intended or existing contractual collaborative relationship with us for reference or marketing purposes without our written approval. Supplier photography on our property or in any other business premises and operating facilities belonging to us shall be strictly prohibited without written approval. The use and/or publication of any type of information, documents and data carriers shall only be permitted as intended. Use by the supplier for reference / advertising purposes is strictly prohibited.
17. Transfer of purchase orders, assignment, reservation of ownership
17.1 The supplier shall only be permitted to transfer the execution of deliveries or services or significant parts of the ordered deliveries or services to third parties (subcontractors) following our prior written approval. The seller shall bear the procurement risk for their services, unless agreed otherwise on a case-by-case basis (e.g. limitation to stock).
17.2 The supplier shall only be able assign their claims against us to third parties or have third parties collect the same with our prior written approval, unless the demands are legally established or are undisputed. Section 354a of the German Commercial Code shall remain unaffected by this regulation.
17.3 The transfer of ownership of the goods to us must take place unconditionally and without regard to payment of the price. The supplier’s reservation of ownership regulations that extend beyond simple reservation of ownership require prior written agreement by us to be valid. If the supplier’s subcontractors assert ownership rights, joint ownership rights or rights of lien against us, or allow compulsory enforcement measures to be taken, we shall be entitled to invoice the supplier for all the losses arising from the same and to deduct them from their claims.
18. Place of performance, applicable law, place of jurisdiction, severability clause
18.1 The place of performance for all of the supplier’s obligations shall be our stipulated place of receipt; for payments, the place of performance shall nevertheless always be Lastrup.
18.2 The law of the Federal Republic of Germany shall apply to these GPC and the contractual relationship between us and the Seller to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
18.3 The place of jurisdiction is Lastrup. However, we are also entitled to institute proceedings against the supplier at the place of jurisdiction of their place of business.
Last update: 07/2021