Terms & Conditions
I. Scope of Application
1. These General Terms and Conditions for delivery and payment are valid for all sales transactions of the Pister Kugelhähne GmbH (Seller), if the purchaser is an entrepreneur, a legal body under public law or a special fund under public law (§ 310 I BGB [German Civil Code]).
2. These General Terms and Conditions for delivery and payment shall apply exclusively even if the Seller, in the knowledge of opposed or different terms and conditions of the Purchaser, performs deliveries or services without reservation. Such opposed or different terms and conditions shall be binding on the Seller only if it has expressly agreed in writing to their applicability.
3. These General Terms and Conditions for delivery and payment shall also be valid, in their most recent version, as framework agreements for all future sales transactions of the Seller with the Purchaser, without the Seller being required to refer to them in each individual case; in such a case the Seller shall inform the Buyer without undue delay of amendments to the general terms and conditions of delivery and payment.
II. Basic Principles of the Contractual Agreement
1. The Seller’s offer will always be non-binding and subject to change.
2. The Purchaser’s purchase order for the product will be considered a binding contractual offer. If the purchase order does not stipulate otherwise, the Seller is entitled to accept it as a contractual offer within five working days. Acceptance can be declared either in writing, in text form, by e-mail, or by delivery of the product to the Purchaser.
3. The Seller reserves all ownership and copyrights to the figures, diagrams, calculations, and other documents surrendered with the offer, according to Clause II.1. of these Terms and Conditions.
III. Volume and Delivery
The written order confirmation of the Seller shall be decisive with regard to the volume of delivery. Supplements and changes to the agreement shall require confirmation by the Seller in text form or by e-mail.
IV. Payment Terms
1. The Seller’s price shall be considered “ex works” plus the statutory turnover tax unless a different agreement is made with the Purchaser. Packaging costs are not included in the price.
2. If it has not otherwise been agreed in writing with the Purchaser, the purchase price shall fall due for payment without deduction upon the provision of an invoice and delivery or acceptance of the goods. Insofar as a trade discount has been agreed upon, this shall only be permissible if at the time of payment all invoices have been settled dating back to more than 30 days.
3. The Buyer shall only have a right to set off or retain insofar as its claim has become res judicata or is not disputed. Delivery faults shall not affect the Buyer’s counter-rights, in particular those resulting from sub-section VIII. of these conditions.
4. The Purchaser shall not be entitled to assign claims arising from the purchasing agreement without the Seller’s consent.
5. The Seller’s offer under Clause II No. 1 shall be based on applicable primary commodity prices at that point in time.
If more than four months pass between the time at which the contract is entered into and delivery without a delay in delivery that is the Seller’s responsibility, and if the Seller’s material costs – in particular the cost of procuring precious metal or stainless steel – increase, the Seller shall be entitled to increase the price by such additional material costs. On request, the Buyer is to be furnished with proof of corresponding price changes. If the purchase price increases as a result by more than 20 %, the Buyer shall be entitled to withdraw from the contract.
V. Delivery Period
1. Delivery periods shall be individually agreed upon in each case, or stated by the Seller in the acceptance of the purchase order.
2. The delivery period shall be extended to an appropriate extent in case of the occurrence of unforeseen events beyond the Seller’s control (e.g. force majeure, work stoppages, and disruptions of transport routes). The failure of timely delivery by a sub-supplier of the Seller shall count as such an event, if the Seller has concluded a delivery contract under which the Purchaser would have been able to be supplied without interruption (congruent supply transaction), and if the Seller is not responsible for the non-delivery by the sub-supplier. The Seller shall inform the Purchaser immediately in cases of such events. Should such events fundamentally complicate the delivery or make it impossible, and the hindrance not be merely temporary, the Seller may withdraw completely or in part from the agreement. In this case, offsetting services already provided by the Purchaser shall be immediately reimbursed. Other legal rights of withdrawal and cancellation of the Seller, as well as those of the Purchaser, shall otherwise remain unchanged.
3. The delivery time shall likewise be extended by an appropriate period in case of supplementary changes to service initiated by the Purchaser, and in case of delays in cooperative assistance actions by the Purchaser.
Should the Purchaser cause a delay in acceptance, omit a cooperative assistance action or delay the delivery due to other causes for which the Purchaser is responsible, the Seller is entitled to store the products with the Purchaser or with a third party, at the expense and risk of the Purchaser. In case of such storage by the Seller, the Seller may demand from the Purchaser the costs of storage customary to the location. This shall apply correspondingly if shipping is delayed at the request of the Purchaser.
4. The Purchaser may only demand damages for delay after expiration of an appropriate grace period, to be set by the Purchaser.
5. Partial deliveries and services are permitted.
VI. Risk Transfer and Acceptance
1. Goods shall be delivered ex works, which is also deemed the place of performance. Risk shall be passed to the Purchaser with the sending of a partial delivery, even when partial deliveries occur or the Seller has undertaken other services in addition; for example, transport costs or haulage and assembly.
At the Buyer’s request and cost, the goods shall be dispatched to another place of destination (sale by delivery to a place other than the place of performance). Risk of potential loss and potential deterioration of the goods shall pass to the Buyer at the latest at the hand over. In the case of a sale by delivery to a place other than the place of performance, risk shall pass at the earlier time of delivery of the goods to the forwarding agent, carrier or the person or agent otherwise determined with regard to performing the dispatch. This shall be authoritative with regard to the passing of risk insofar as acceptance has been agreed upon.
At the Buyer’s request, the consignment shall be insured by the Seller at the Buyer’s cost against theft; breakage; transport, fire and water damage as well as other insurable risks.
2. Should the shipment be delayed due to circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser from the day of readiness for shipment; however the Seller is obligated, at the Purchaser’s request and expense, to secure such insurances as the Purchaser may demand.
VII. Reserved Right of Title
1. The Seller’s deliveries take place, without exception, with right of title reserved. Ownership of the products delivered by the Seller (hereinafter: goods subject to reservation of title) is only passed to the Purchaser if it has fulfilled all of its obligations arising from the business relationship with the Seller, and all the liabilities arising from bills of exchange and cheques taken by the Seller at the instigation of the Purchaser have been settled.
2. The Purchaser shall be obligated to handle goods subject to reservation of title with care; it is particularly obligated to insure them at their replacement value, at its own expense, against damages caused by fire, water, and theft. Insofar as maintenance and inspection work is required, the Purchaser must perform this on time at its own expense.
3. The Purchaser may combine or mix goods subject to reservation of title with other things, process or sell them, in the customary course of business.
4. The processing or alteration by the Purchaser of the goods subject to reservation of title will always be carried out for the Seller, without liability for the Seller arising from this. Should goods subject to reservation of title be mixed or blended with other things – including goods subject to reservation of title of other suppliers – or combined with another object (primary object) in such a way that they become essential parts of it, it is agreed that co-ownership of the entire quantity, or of the primary object, passes to the Seller, in the ratio of the invoiced value of the goods subject to reservation of title to the value of the other things or the primary object at the time of mixture or blending. The entire quantity or the primary object will be kept for the Seller by the Purchaser with due care and diligence, and free of charge.
5. Should goods subject to reservation of title become the object of a purchase, factory or other contract of the Purchaser with a third party, on the basis of which the third party would acquire ownership of them, the Purchaser will then assign to the Seller its claims for value consideration, in the amount of the purchase price of the goods subject to reservation of title, plus a one-off charge of 15% for interest charges and costs; the Seller will then accept this assignment. The Purchaser may not agree with its contractual partner on a prohibition of assignment, and on its part may deliver only under reservation of ownership; upon request, the Purchaser must name the contractual partner to the Seller, and deliver or distribute the information and documents required in pursuance of the Seller’s rights. For recovery of the assigned receivable, the Purchaser is revocably authorised to collect the receivable itself, without prejudice to the entitlement of the Seller; the Seller will only revoke the authorisation and collect the receivable itself if the Purchaser falls into default of payments or financial collapse – suspension of payments, application for the opening of insolvency proceedings.
6. The Seller may neither pledge the goods subject to reservation of title nor convey them to a third party as security or tolerate their being attached. The Purchaser must immediately notify us of pledges or other access to goods subject to reservation of title, if necessary by transmittal of a copy of the hypothecation protocol.
7. Should the value of collateral security exceed the total amount of the receivables (including possible bills of exchange or cheque receivables) by more than 10%, the Seller shall release, at the Purchaser’s demand, a corresponding amount of collateral to be chosen by the Seller.
VIII. Warranty
1. The documents taken as a basis for the offer under Clause II.1, such as figures, diagrams, weight and mass information, are not considered an agreement on properties and condition.
The Seller does not accept any liability for third party statements (e.g. advertising statements by suppliers).
2. The Purchaser must inspect the product immediately and notify the Seller in writing of any defects. Obvious defects (including false and short deliveries) must be objected to within five working days of the handover. Hidden defect claims must be raised within five working days after they become known.
3. The Seller will provide supplementary performance in cases of timely and well-founded defect claims: At the Seller’s choice, it will either take back the defective product and deliver a product free of defects (replacement delivery), or repair the defect (remedy of defect).
The Seller shall be entitled to render the due subsequent performance conditional on the fact that the Buyer pays the due purchase price. However, the Buyer is entitled to retain a portion of the purchase price that is proportionate to the defect up until the defect has been rectified.
The Buyer is to grant the Seller the time required to provide the subsequent performance. At the Seller’s request, a delivery item about which a complaint has been lodged is to be returned freight-free to the Seller. In the event of justified notification of defects, the Seller shall reimburse the cost of the most cost-effective shipping route; this does not apply to additional costs attributable to the fact that the delivery item is at a location other than the location agreed for use. In the case of justified notification of defects, the Seller shall additionally carry the expenses that are also required for the inspection and subsequent improvement such as work and material costs.
However, the subsequent performance shall neither contain the set-up nor the renewed installation costs if the Seller was not initially under obligation to install.
4. In the event that the replacement fails, the Customer may, at its own discretion, reduce the purchase price or withdraw from the contract.
In case of a defect which reduces the value or serviceability of the product only by an insignificant amount, the Purchaser may neither demand supplementary performance nor reduce the purchase price.
5. Should materials or work substances be supplied by the Purchaser for the carrying out of the order, the Seller is not obligated to inspect them; the Seller gives no warranty for defects of products which are based on deficiencies in the supplied materials or work substances.
6. Subject to the regulation of Clause IX below, other claims by the Purchaser – on whatever grounds – are ruled out.
7. Warranty claims resulting from this contract as well as the Buyer’s contractual and non-contractual claims for damages based on faulty goods shall fall under the statute of limitations in one year from delivery. This does not affect the liability for intentional or gross negligent violations of obligations, damage resulting from the loss of life, physical injury or detrimental effects on health or maliciously concealed defects or the provision of a quality guarantee for the goods. Furthermore, liability in accordance with the German Product Liability Act and the statutory special regulations for third party in rem claims for return (Section 438(1) No. 1 BGB) or claims involving recourse against suppliers in the case of a final delivery to a consumer (Section 479 BGB). The respective statutory limitation period and the respective statutory start of the limitation period shall apply insofar as the liability is not affected.
IX. Liability
1. The Seller is liable for deliberate and gross negligence. The Seller is also liable in case of simple negligence, if it involves
- damages arising from the breach of contractual obligations whose preservation is necessary to make orderly performance of the contract possible, and whose fulfilment the Purchaser normally relies upon and may rely upon; in such a case, however, liability is limited to the compensation of foreseeable, typically occurring damages.
- damages arising from death, injury to body and health.
This does not include cases of any sort of liability under the Produkthaftungsgesetz [Product Liability Law] or claims involving recourse against suppliers in the case of a final delivery to a consumer (Section 479 German Civil Code). Furthermore, this does not affect liability for maliciously concealed defects or the provision of a quality guarantee for the goods. The statutory regulation shall apply insofar as liability is not affected.
2. The Seller is not liable for damages based on inappropriate or improper use, faulty assembly or operation, faulty or negligent handling by the Purchaser or a third party, or on customary wear and tear, inappropriate operating equipment, substitution of work substances, or chemical, electrochemical or electrical influences. Sealing elements are subject to wear. The causal connection between a substantial alteration of the purchased object by the Purchaser, and the defects or damages which have occurred, is assumed.
In particular, no warranty for defects or damages shall be assumed if these have arisen from substantial changes carried out by the Purchaser – especially by bore holes or by the welding of other objects – on the products delivered by the Seller.
3. Insofar as the Seller’s liability is excluded or limited, this also applies to the personal liability of the Seller’s staff, contractors, employees, representatives and vicarious agents.
X. Confidentiality
The Purchaser shall have to treat all commercial and technical details connected with the contract and its execution – especially documents of all types which are given to the Purchaser by the Seller for purposes of carrying out the contract, including in electronic form – as business secrets. The Purchaser is also bound to confidentiality on the handling of the contract, and is authorised to copy such documents only under operational requirements and copyright terms. Disclosure to third parties may take place only with express consent of the Seller in text form.
XI. Place of Fulfilment, Applicable Law and Jurisdiction
1. The place of fulfilment for all obligations arising from the contractual relationship, including payment obligation, shall be Muggensturm.
2. The law of the Federal Republic of Germany shall apply by way of exclusion of international uniform law, in particular the UN Sales Law.
3. The place of jurisdiction is Muggensturm. However, the Seller may also sue the Purchaser at its place of jurisdiction.
Updated Version: 05.10.2015
General Purchasing Conditions
1 General - Scope
(1) These General Purchasing Conditions (GPC) apply to all business relationships with our business partners and Suppliers ("Supplier"). The GPC shall only apply if the Supplier is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GPC apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), regardless of whether the Supplier manufactures the goods itself or purchases them from sub-Suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GPC in the version valid at the time of the Buyer's order or in any case in the version last notified to the Supplier in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) These GPC apply exclusively. Deviating, conflicting or supplementary general conditions of the Supplier shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if we accept the Supplier's deliveries without reservation with knowledge of the Supplier's general conditions.
(4) Individual agreements made with the Supplier in individual cases (including collateral contracts, supplements and amendments) shall in any case take precedence over these GPC. Subject to proof to the contrary, either a written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Our General Purchasing Conditions shall also apply to all future transactions with the Supplier.
(6) If written form is required under individual provisions of this contract, text form is not sufficient.
(7) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GPC
2 Offer
The Supplier is obliged to accept our order within a period of three working days.
3 Delivery time
(1) The delivery time stated in the order is binding. If the delivery time is not specified in the order and has not been otherwise agreed, it shall be .........two........... weeks from order.
(2) The Supplier is obliged to inform us in writing without delay if circumstances arise or become apparent to it, which indicate that the delivery time cannot be met.
(3) If the Supplier does not perform its service or does not perform its service within the agreed delivery time or if it falls into delay, our rights - in particular to contractual rescission and damages - shall be determined in accordance with statutory provisions. The provisions in para. 4 shall remain unaffected.
(4) If the Supplier is in delay and a contractual penalty has not been agreed or has not been validly agreed, we may - in addition to further statutory claims - demand flat-rate compensation for the prejudice caused to us by the delay in the sum of 1% of the net price per completed calendar week, but in total not more than 5% of the net price of the goods delivered late. We reserve the right to prove that higher prejudice has been incurred. The Supplier reserves the right to prove that no prejudice at all or only significantly less prejudice has been incurred.
4 Service, delivery, transfer of risk, default of acceptance
(1) Without our prior written consent, the Supplier shall not be entitled to have the service owed by having it provided by third parties (e.g. subcontractors). The Supplier bears the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).
(2) Delivery shall be made "free domicile" within Germany to the place specified in the order. If the destination is not specified and nothing else has been agreed, the delivery shall be made to our place of business. The respective destination is also the place of performance for the delivery and any subsequent performance (obligation to deliver).
(3) The delivery shall be accompanied by a delivery note stating the date (issue and dispatch), the content of the delivery (item number and quantity) and our order identifier (date and number). If the delivery note is missing or incomplete, we shall not be responsible for any delays in processing and payment resulting therefrom. A corresponding dispatch note with the same content must be sent to us separately from the delivery note.
(4) The risk of accidental loss and accidental deterioration of the item shall pass to us on handover at the place of performance. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law regarding contracts for work and services shall also apply accordingly, in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(5) Statutory provisions shall apply to the inception of our default in acceptance. However, the Supplier must also expressly offer to perform its service for us if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. the provision of material). If we are in default of acceptance, the Supplier may demand compensation for its additional expenses in accordance with the relevant statutory provisions (§ 304 BGB). If the contract concerns an exceptionally difficult and unusual item that must be manufactured by the Supplier (individual production), the Supplier shall only be entitled to further rights if we are obliged to cooperate and are responsible for a failure to cooperate.
5 Force majeure
(1) In cases of force majeure, the contracting party affected thereby shall be released from the obligation to deliver or accept for the duration and to the extent of the effect of the force majeure. Force majeure is any event beyond the control of the respective contracting party which prevents it either in whole or in part from fulfilling its obligations, including fire damage, floods, strikes and lawful lockouts as well as operational disruptions or official decrees for which it is not responsible. Supply difficulties and other service performance disruptions on the part of the Supplier's subcontractors shall only be deemed to be force majeure if the subcontractor, for its part, is prevented from performing the service incumbent upon it by an event pursuant to sentence 1.
(2) The affected Party shall immediately notify the other Party of the occurrence and cessation of the force majeure and shall use its best endeavours to remedy the force majeure and to limit its effects as far as possible.
(3) In the event of force majeure, the contracting parties shall agree on a further course of action and shall determine whether, after it ends, the products not delivered during this period should be delivered subsequently. Notwithstanding the foregoing, either party shall be entitled to withdraw from the orders affected thereby if the force majeure lasts for more than two weeks from the agreed delivery date. The right of each contracting party to terminate the contract for major cause in the event of prolonged force majeure shall remain unaffected.
6 Prices, terms of payment
(1) The price stated in the order is binding.
(2) All prices include statutory value added tax if this is not shown separately.
(3) Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the Supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
(4) Invoices must comply with tax requirements. Furthermore, the order number, article number and our commission number must be indicated. The Supplier shall be responsible for all consequences arising from non-compliance with this obligation, unless it proves that it is not responsible for them.
(5) The agreed price shall be due for payment within 30 calendar days of complete delivery and service performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Supplier shall grant us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.
(6) We do not owe any maturity interest. The relevant statutory provisions shall apply to payment default.
(7) Payments made shall not constitute recognition of the delivery as being in accordance with the contract.
(8) Insofar as costs and interest are incurred, payments shall first be credited against the main service performance, then against interest, and finally against costs.
(9) We shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent provided by law. In particular, we are entitled to withhold any payments due as long as we are still entitled to claims against the Supplier arising from incomplete or defective services performed.
(10) The Supplier shall only have a right of set-off or retention on the basis of counterclaims that have been established by a court or are undisputed.
7 Defects
(1) The Supplier guarantees that the contractual products delivered are free of material and processing defects, comply with contractual requirements and are otherwise free of defects. In addition to this guarantee of quality, it assumes a comprehensive durability guarantee for a period of 24 months from delivery. Statutory rights are not restricted thereby.
(2) Statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating or use instructions) and in the event of other breaches of duty by the Supplier, unless otherwise stipulated below.
(3) In accordance with statutory provisions, the Supplier shall be liable in particular for ensuring that the goods have the agreed quality at the time the risk passes to us. In any case, those product descriptions which - in particular by designation or reference in our order - are the subject matter of the respective contract or have been included in the contract in the same way as these GPC shall be deemed to be an agreement on quality. It makes no difference whether the product description comes from us, the Supplier or the manufacturer.
(4) Notwithstanding Section 442 (1) sentence 2 of the German Civil Code (BGB), we shall also be entitled to unlimited claims for defects if the defect remained unknown to us at the time the contract was concluded, due to gross negligence.
(5) Statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to examine and give notice of defects, subject to the following proviso: our duty to examine shall be limited to defects which become apparent during our incoming goods inspection by means of external examination including the delivery documents (e.g. transport damage, wrong delivery and short delivery) or which are recognisable during our quality control by means of random sampling. In this regard, a minimum period of five working days shall apply. Insofar as acceptance has been agreed, there shall be no duty to examine. Moreover, it depends on the extent to which an investigation is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Notwithstanding our duty to inspect, our complaint (notice of defect) shall be deemed to have been made without undue delay and in good time if it is sent within five working days of discovery or, in the case of obvious defects, of delivery.
(6) Subsequent performance shall also include removal of the defective goods and their re-installation if the goods have been installed in another item or attached to another item in accordance with their type and intended use; our statutory claim to reimbursement of corresponding expenses shall remain unaffected. The Supplier shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this regard, however, we shall only be liable if we recognised or were grossly negligent in not recognising that there was no defect.
(7) Notwithstanding our statutory rights and the provisions in para. 5, the following shall apply: If the Supplier fails to fulfil its obligation to remedy the defect - at our discretion by remedying the defect (rectification) or by delivering an item free of defects (replacement) - within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement of the expenses required for this from the Supplier or else a corresponding advance payment. If subsequent performance by the Supplier has failed or is unreasonable for us (e.g. due to special urgency, risk to operational safety or the imminent occurrence of disproportionate losses), no deadline need be set; we shall inform the Supplier of such circumstances without delay, if possible in advance.
(8) Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with statutory provisions. In addition, we are entitled to damages and expenses in accordance with statutory provisions.
8 Supplier recourse
(1) We shall be entitled to our legally determined recourse claims within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 BGB) without limitation in addition to the claims for defects. In particular, we are entitled to demand from the Supplier exactly the type of subsequent performance (repair or replacement delivery) that we owe our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) is not restricted by this.
(2) Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2) and (3) of the German Civil Code (BGB)), we shall notify the Supplier and request a written statement, briefly stating the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is brought about, the claim for defects actually conceded by us shall be deemed to be owed to our customer. In this case, the Supplier shall be obliged to prove the contrary.
(3) Our claims from Supplier recourse shall also apply if the defective goods have been further processed by us or by another entrepreneur, e.g. through incorporation into another product.
9 Producer liability
(1) If the Supplier is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause lies within its sphere of control and organisation and it is itself liable in relation to third parties.
(2) Within the scope of its indemnification obligation, the Supplier shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a third party claim including recall actions carried out by us. We will inform the Supplier about the content and scope of recall measures - as far as possible and reasonable - and give it the opportunity to comment. Further legal claims shall remain unaffected.
(3) The Supplier shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 5 million per personal injury/property damage. If we are entitled to further claims for damages, these shall remain unaffected.
10 Intellectual property rights
(1) The Supplier guarantees that no rights of third parties are infringed in connection with its delivery.
(2) If claims are made against us by a third party in this regard, the Supplier shall be obliged to indemnify us against such claims. The Supplier's indemnification obligation relates to all expenses and other costs necessarily incurred by us from or in connection with the claim by a third party.
11 Ownership of documents and tools, provision, confidentiality
(1) All illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents remain our property. Copyrights and other industrial property rights shall not be affected by handover to the Supplier. Such documents must be used exclusively for the contractual performance and returned to us after completion of the contract.
(2) The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.
(3) The above provisions shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the Supplier for production. Such items shall - as long as they are not processed - be stored separately at the Supplier's expense and insured to a reasonable extent against destruction and loss. At the same time, the Supplier hereby assigns to us all claims for compensation arising from this insurance; we hereby accept the assignment.
(3) The Supplier is obliged to use the tools exclusively for the manufacture of the goods ordered by us. The Supplier is obliged to carry out any necessary maintenance and inspection work on our tools as well as all maintenance and repair work in good time at its own expense. It shall notify us immediately of any malfunctions; if it culpably fails to do so, claims for damages shall remain unaffected.
(4) Any processing, mixing or combination (further processing) of items provided by the Supplier shall be carried out for us. The same shall apply in the event of further processing of the delivered goods by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with statutory provisions.
(5) Transfer of title to the goods to us shall be unconditional and without regard to payment of the price. If, however, we accept an offer of transfer of title from the Supplier conditional on payment of the purchase price in an individual case, the Supplier's retention of title shall expire at the latest on payment of the purchase price for the goods delivered. We shall remain authorised to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the claim arising therefrom (alternatively, the simple reservation of title extended to the resale shall apply). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.
12 Workforce
(1) The Supplier assures that it will only use workers from countries outside the European Union if they are in possession of a valid work permit and a valid social security card. Work permits must be presented at our request.
(2) The Supplier also undertakes towards us to fulfil its obligations to pay the applicable minimum wage and to pay social security contributions and taxes. It assures to comply with the regulations of the Minimum Wage Act.
(3) The Supplier is aware that it is obliged to report its employees to the competent social insurance collection agency in accordance with § 28 SGB IV. The Supplier shall submit declarations of no objection from the social insurance institutions in good time before commencing execution of the work.
(4) The Supplier assures that all necessary work permits and certificates are available at the time of conclusion of the contract as well as at the start of deployment of its employees
(5) In the event of deployment abroad, the Supplier undertakes to observe the mandatory labour law regulations applicable in the respective country of deployment for all employees deployed for this order. All necessary official permits must be obtained at the Supplier's expense, and notification procedures must be observed.
(6) Working time records and other documentation shall be made and kept in accordance with the Minimum Wage Act. They must be submitted to us immediately on request.
(7) The Supplier shall indemnify us against all claims and costs which are asserted against us in the event of a breach by the Supplier of the provisions referred to above. This also applies to any fines or penalties.
(8) In the event of delays or interruptions in the execution of the order due to incorrect or incomplete approvals or certificates, these costs shall also be charged to the Supplier for any damages or contractual penalties which we may be required to pay, as well as any consequential costs.
13 Limitation Periods
(1) The mutual claims of the contracting parties shall become statute-barred in accordance with statutory provisions, unless otherwise stipulated below.
(2) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims for defects shall be three years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The three-year limitation period shall also apply accordingly to claims arising from defects of title, whereby the statutory limitation period for claims in rem of third parties for surrender of goods (§ 438 para. 1 no. 1 BGB) shall remain unaffected; claims arising from defects of title shall furthermore not become time-barred in any case as long as the third party can still assert the right - in particular in the absence of prescription - against us.
(3) The limitation periods of the law on sales including the above extension shall apply - to the statutory extent - to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply for this, unless application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
14 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GPC and the contractual relationship between us and the Supplier to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Supplier is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - including international - place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office. The same shall apply if the Supplier is an entrepreneur within the meaning of § 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 GPC or a prior individual agreement or at the general place of jurisdiction of the Supplier. Overriding statutory provisions, in particular on exclusive competences, shall remain unaffected.
(3) Unless otherwise stated in the order, our registered office shall be the place of performance.
15 Severability
Should individual provisions of these GPC, the framework agreement or other contractual agreements between the parties be or become invalid after conclusion of the contract, this shall not affect the validity of the rest of the respective contract.
Muggensturm, 01.01.2021