GENERAL TERMS AND CONDITIONS OF BUSINESS
General Purchasing Conditions
1. Order, Order Confirmation
These General Purchasing Conditions apply to all business relations between us (referred to as “Purchaser” below) and our business partners and suppliers (referred to as “Supplier”below) unless they are modified by express written agreement. They apply to all supplies and services (referred to, for example, as “goods” below) from the Suppliers. The present General Purchasing Conditions shall also apply exclusively if the Purchaser accepts supplies or services from the Supplier and conflicting terms and conditions of the Supplier should exist, even if the Purchaser did not expressly object to such terms and conditions. The present General Purchasing Conditions shall apply in the specific version as a skeleton agreement also for future contracts relating to sales and/or supply of movable goods with the same supplier without need for the Purchaser to refer to them specifically again in each individual case; the Purchaser will inform the Supplier under these circumstances immediately about any changes to these General Purchasing Conditions. These General Purchasing Conditions apply only to agreements/contracts concluded with entrepreneurs under §14 BGB (German Civil Code), legal entities under public lawor special funds under public law.
2. Conclusion of Contract, Production of Samples
A supply contract shall not be deemed concluded until the Purchaser has responded to an offer by sending a written notice of acceptance within the offer validity period or, in default of such an offer validity period, within 14 days. Design drawings, dimension and weight specifications, quantities, prices, other descriptions and other data such as those that appear in catalogues, newsletters, advertisements or price lists of the Purchaser are only approximate values and shall be without commitment for the Purchaser until they are expressly incorporated into a contract. Such data communicated to the Supplier prior to conclusion of contract shall remain the exclusive property of the Purchaser and must not be disclosed to any third party; after completion of the purchase order, they must be returned to the Purchaser on request or deleted. The same shall apply accordingly if the Purchaser makes tools available to the Supplier for the production of the goods. If products are ordered according to the Purchaser’s design drawings, the Supplier shall deliver one sample product free of charge. Series production must not be initiated until the sample product is released by the Purchaser. The Supplier is obliged to draw the attention to any concerns regarding design, functional capability, materials used, etc. Prior to any modification to the production of the product sampled, written consent must be obtained from the Purchaser. Products that are based on design drawings shall exclusively be delivered to the Purchaser unless the Purchaser expressly agrees to delivery to a third party.
3. Purchase Price, Payment Terms
The price specified in the purchase order is binding and based on „Free Carrier“ (FCA Incoterms 2010). The agreed purchase price includes, however, proper packaging, loading and load securing of the products by the Supplier and the and the legal V.A.T. rate. Invoices can only be processed by the Purchaser if they refer to the order number or commission number shown in the purchase order and are received by the Purchaser in duplicate and separately from the goods shipment. Payment and delivery shall be made in the mode and time as agreed by the parties in each individual case. If an agreement is not made in an individual case, payment shall normally be made within 14 days after delivery and receipt of the invoice with a 3% cash discount or net without any deduction within 30 days. The Purchaser shall not be liable for any interest after due date. The Purchaser shall pay interest on arrears in the amount of 5 percentage points above the current base lending rate at any one time in case of default.
4. Delivery Conditions, Contractual Penalty
The Supplier shall not be entitled without prior written consent of the Purchaser to have its contractual obligations fulfilled by one or more third parties (e.g. subcontractors). Delivery shall be made on the date of delivery specified in the contract or purchase order. The Supplier shall be obliged to notify the Purchaser immediately in writing if a delay in delivery should occur. If the Supplier should be in default, the Purchaser shall be entitled to claim a contractual penalty in the amount of 1 % of the value of the delivery for each full calendar week of delay, however, not exceeding a total of 5 % of the full or proportional purchase price of the goods that are in delay, as appropriate, unless otherwise agreed in the contract. The Purchaser shall be at liberty to prove that a higher loss has occurred. The Supplier shall be at liberty to prove that a loss has not occurred at all or is substantially lower than claimed. Acceptance of a delayed delivery shall not be construed as a waiver of a claim for contractual penalty or damages, as appropriate. A claim for contractual penalty shall be deemed to have been made in due time if the Purchaser deducts the contractual penalty from the next invoice due. Partial deliveries shall generally not be admissible unless the Purchaser consented to these expressly or if they are just and reasonable to the Purchaser. Acceptance of an unwanted partial delivery by the Purchaser shall not affect the Purchaser’s rights regarding the overall delivery in any way, even if such reservation should not be made expressly at acceptance. The Purchaser shall not be obliged to accept any delivery before the agreed date of delivery.
5. Force Majeure
The Purchaser shall not be obliged to accept timely delivery if prevented from acceptance by legal industrial action, interruption of operations through no fault of its own, government interventions, riots or other inevitable events. The Purchaser shall communicate the occurrence and the anticipated duration of such circumstances to the Supplier without delay. If the hindrance should persist for more than 2 months, the Supplier shall have the statutory rights based on the concept of definite obstacles of performance occurring through no fault of one’s own. The Purchaser shall be entitled to cancel the contract in full or in part in such a case. The Supplier shall then be entitled to invoice those supplies and services that were delivered until the time of cancellation in analogy to the provisions of § 645 BGB, excluding any further claims. The stipulations regarding delay of a contractual partner shall remain unaffected by this clause.
6. Passage of Risk
Unless otherwise specified in the individual delivery contracts, the time of passage of risk is defined according to the Incoterms of the International Chamber of Commerce (Incoterms 2010). If an agreement is not made in this regard in an individual case, the “delivery duty paid” mode (Incoterms 2010) shall apply by default.
7. Right to Audit and Duty to Inspect
The Purchaser shall be entitled to audit the Supplier’s production. With regard to the commercial duties to inspect goods for defects and notify any defects found, the statutory provisions (§§ 377, 381 HGB – German Commercial Code) shall apply with the following requirements: The Purchaser’s duty to inspect goods shall be limited to those defects which become obvious in the Purchaser’s incoming goods inspection by exterior inspection of the goods including delivery documents or in the quality inspection by random sampling (e.g. transport damage, wrong or short delivery). A duty to inspect does not apply insofar as acceptance is agreed or if the goods are intended to be implemented in a building. In all other respects, this shall be governed by the reasonableness of an inspection, considering the specific circumstances of each individual case in the ordinary course of business. The Purchaser’s duty to notify any defects found later shall remain unaffected. In any case, our complaint (notice of defect) shall be deemed to have been communicated without delay and in due time if it is received by the Supplier within 8 working days.
8. Claims for Defects
8.1. Claims for Material Defects
The Supplier undertakes that the delivery item including its appearance and reference to the purchase order is free from defects and complies with the latest state of the art, the relevant legal regulations and standards of government authorities, employers’ liability insurance associations and technical associations and that the Supplier does not know of any impending modifications thereof. The Supplier’s liability for defects shall be valid for 36 months from the passage of risk, if the goods are intended to be implemented in a building, 5 years and 6 months.
8.2. Legal Compliance
The Supplier assures that the execution of the individual delivery contracts will not involve any violation of any legal regulation, particularly laws, ordinances or other regulations of any official agency
8.3. Claims for Defects of Title
The Supplier assures that it has absolute title to all objects subject to the purchasing contracts and that there are no conflicting rights whatsoever of any third party (such as liens, other creditor titles from assignment of claims or other collateral securities, sale of receivables, hire-purchase, conditional sale, etc.).
8.4. Further Claims for Defects
Any further statutory claims for defects to the benefit of the Purchaser shall remain unaffected.
9. Warranties, Warranted Properties
If the Supplier assumed a warranty for the condition of the delivery item or warranted a particular property, the Supplier shall be liable for damages including loss in lieu of performance pursuant to the statutory provisions. The statutory period of limitation shall be 36 months from the discovery of the lack of the warranted or guaranteed property, if the goods are intended to be implemented in a building, 5 years.
10. Recourse for Delivery
If a customer should make a claim on the Purchaser in respect of a sale of consumer goods and this claim is based on a defect of the item delivered by the Supplier, the Purchaser’s right to assert a recourse claim shall be subject to a statutory limitation of 6 months from the passage of risk from the Supplier to the Purchaser.
11. Product Liability
If a product should show a defect which is attributable to the Supplier and for which the Supplier itself has third-party liability, the Supplier shall be obliged to indemnify the Purchaser against any claims for damages from any third party and reimburse to the Purchaser any expenses that may result from a product recall. The Purchaser shall notify the Supplier as far as possible about its intention to initiate a product recall and provide an opportunity for the latter to make representations. The Supplier agrees to maintain product liability insurance at an insured sum of 2 million € – flat rate – for each instance of injury/damage; any further claims for damages to which the Purchaser might be entitled shall remain unaffected.
12. Supplier Statement, Foreign Trade
The Supplier shall demonstrate the provenance/origin of the goods in compliance with the relevant regulations, particularly by providing a supplier’s declaration or a declaration of origin and statement of the country of origin of the goods. The Supplier shall inform the Purchaser about whether the goods are subject to an export license. The Supplier shall communicate to the Purchaser the control list item number according to the German foreign trade law (Annex AL) and according to US law (ECCN). On request, the Supplier shall communicate to the Purchaser any further export-related data applicable to the goods.
13. Confidentiality
The Supplier undertakes to refrain from passing to any third party any and all information or data relating to the Purchaser that become known to it in the course of fulfilling or executing a contractual relationship with the Purchaser or disclosing them in any other way. The Supplier shall only be authorized to make information and data received from the Purchaser available to those persons who need to use them necessarily for the purpose of making a delivery to the Purchaser and who have also been committed to maintaining confidentiality. The Supplier shall impose these obligations to maintain confidentiality also upon any and all persons employed and make sure that they comply with this obligation to maintain confidentiality. An obligation to maintain confidentiality shall not apply by way of exception
(a) to any data or information that have already been in lawful possession of the Supplier at the time of their disclosure;
(b) to any data or information that were already in the public domain at the time of their disclosure to the Supplier or became publicly available thereafter;
© if and to the extent the Supplier or any of its employees should be bound by law or a decision of a court or administrative authority to communicate the information disclosed by the Purchaser to the Supplier and/or provide information about it;
(d) if the Purchaser has previously consented to the disclosure of data or information received by the Supplier from the Purchaser. The Supplier shall bear the burden of proof for the applicability of the exceptions referred to in the preceding phrases (a‑d). The Purchaser reserves all rights to such information (including copyrights and the right to file industrial property rights such as patents, etc.). If and to the extent that such information was disclosed to the Purchaser by any third party, this legal reservation shall also apply to the benefit of such third parties.
14. Compliance
The Supplier commits to complying with any and all laws and regulations of those countries in which it performs activities. The Supplier assures the Purchaser that it will neither engage in any bribery offense nor any violation of human rights – neither directly nor indirectly, neither actively nor passively. The Purchaser is responsible for the protection of its personnel and the environment. The Purchaser shall impose these obligations also upon its suppliers in each individual case.
15. Legal Venue; Jurisdiction, Precedence of Language
The present agreement is subject to German law alone, excluding the application of the UN Convention on International Sale of Goods. The Purchaser’s domicile shall be the legal venue for any disputes arising out of the contractual relationship, if the supplier is a merchant in the sense of the German Commercial Code (HGB) , a legal entity under Public Law or a special fund under Public Law.. However, the Purchaser shall also be entitled to bring an action or an application for an injunctive order against the Supplier before the court having jurisdiction at the Supplier’s domicile. Any interpretation of a specific contract and the present General Purchasing Conditions shall be based on the original German text even if the contract and/or the present General Purchasing Conditions are translated into a different language.
16. Severability Clause
If any individual provision of the present General Purchasing Conditions should be void in full or in part, this shall not affect the validity of the remaining provisions. The parties agree to replace any void provision by a valid one which comes as close as possible to the economic intent of the invalid provision. This shall not apply in case of invalidity due to a violation of §§ 305 to §§ 310 BGB. In such a case, the statutory provision shall apply unless it is appropriate to make a supplementary interpretation of the contract for the purpose of filling a gap.
General Purchasing Conditions of Broszeit GmbH, January 2018
GENERAL TERMS OF DELIVERY AND PAYMENT
1. General
1.1 All our supplies and services shall be governed exclusively by our General Terms of Delivery and Payment as set out below. In addition and at a lower rank the Tegernseer customs of timber trade shall apply even if the customer has its place of busines outside of Germany.
1.2 Any other deviating or conflicting terms and conditions shall not be accepted by us without our previous express consent. The present General Terms of Delivery and Payment shall also apply to any future business transactions between the parties even if we should proceed with delivery of the goods knowing about the existence of deviating or conflicting conditions.
1.3 These General Terms of Delivery and Payment apply only in relation to entrepreneurs, legal entities under public law or special funds under public law pursuant to § 310 para. 1 BGB (German Civil Code).
1.4 We reserve the right to implement technical modifications and reserve ownership and copyright to our documentation.
2. Offer, acceptance
Our offers are subject to confirmation. If a purchase order constitutes an offer pursuant to the provisions of § 145 BGB, we shall be entitled to accept it in writing or text format according to § 126 b BGB within two weeks.
3. Prices and terms of payment
3.1 Our prices are understood ex works.
3.2 The price agreed is based on the current cost of materials and wages. If these should change by the time of shipping the goods, the price shall also be adjusted in proportion with the percentage of the change in cost of materials and wages, being taken into account at equal percentages. The current state of progress of production at the time of occurrence of a change in cost of materials or wages shall be taken into account, i.e. the adjustment shall only apply to that portion of the price corresponding to the costs that will still be incurred.
3.3 The prices specified do not yet include value added tax at the statutory rate which has to be payed by the cusomer additionally.
3.4 Our invoices are payable within 10 days with a cash discount of 2 % of the net sales price or within 30 days without any deduction, counting from the invoice date in either case.
4. Delivery period
4.1 The beginning of the delivery time specified by us is contingent upon clarification of all technical issues in which the customer is required to cooperate.
4.2 If we should be unable to keep a binding delivery period for reasons beyond our control (unavailability of supply or service), we will inform the customer about this without delay and communicate the anticipated new delivery period at the same time. If the supply service should still be unavailable within the new delivery period, we shall be entitled to withdraw from the contract in full or in part; any consideration already effected by the customer will be reimbursed without delay. This concept of unavailability of supply service shall include, without limitation, failure of timely delivery by our sub-suppliers if we had concluded a congruent covering contract. The customer‘s statutory rights to cancellation and termination and the statutory provisions about winding up a contract in case of exclusion of the obligation to perform (e.g. impossibility or unreasonableness of rendering the service and/or remedial performance) shall remain unaffected.
4.3 The existence of a default in delivery shall be governed by the statutory provisions. However, a reminder by the customer shall be required in any case. If we should get into delay in delivery, the customer shall be entitled to claim flat damages for delay if we should be liable for ordinary negligence, excluding any further rights. The flat rate for damages shall be 0.5% of the net price (order value) for every full calendar week of delay, however, not exceeding a total of 5% of the order value of that part of the total order which cannot be used at all or according to the intention of the contract due to the delay. We shall be at liberty to prove that the customer has not suffered any loss or only a substantially lower loss than the flat rate specified above.
5. Offset, lien, cessation of payments
5.1 The customer shall be entitled to offset any amounts only to the extent that its counter-claims are either uncontested or established as final and legally binding. The customer shall only be entitled to assert any rights of retention on the basis of counter-claims from the same contractual relationship.
5.2 If the customer should cease payments, file for creditor protection proceedings or insolvency, all invoices shall become due and payable immediately, all discounts shall be forfeited and any pending shipments shall only be made against advance payment or security.
6. Retention of title
6.1 We reserve the right of ownership to any and all goods supplied by us until all our claims from the business relationship with the customer are settled. If the goods supplied should be incorporated into or integrated with other equipment, our right of ownership shall also extend proportionally to the finished goods or equipment created by the integration. This shall also apply if the compensation for certain shipments identified by the customer has already been paid, since the retention of title serves as a security for the balance in our favour. If the value of the goods delivered under retention of title for the purpose of security should exceed our total claim by more than 20%, we shall be obliged to make a reassignment to this extent on customer‘s request. The selection of the security to be released is at our discretion.
6.2 The customer shall have the right – revocable at any time – to resell the goods delivered within the scope of ordinary business transactions unless the claim resulting from such resale should already have been assigned to any third party; the right to resale shall also be forfeited if the customer should cease payments.
6.3 The customer hereby and now assigns to us as a security any claim to which customer may be entitled from resale or similar economic dispositions, regardless of whether the goods subject to retention of title are sold without or after integration with other goods.
6.4 If goods subject to retention of title are resold either separately or in combination or after integration with other goods not owned by us or after further processing, the assignment shall only cover the invoice amount relevant between us and the customer for the goods subject to retention of title including value added tax.
6.5 The customer is entitled to collect any assigned claim as long as customer meets the payment obligations towards us; the amounts collected by the customer shall be paid over to us immediately insofar as our claims are due and payable. If the customer should fail to meet its payment obligations, we shall be entitled to communicate the assignment of claims to the customer‘s contractual partner.
6.6 We shall be entitled to request surrender of the goods subject to retention of title if the customer should not meet its payment obligations either after a calendared deadline or after fixing a time-limit. Such request to surrender shall be deemed cancelation of contract at the same time.
6.7 The customer must neither pledge the goods nor assign them by way of security. In case of any writ of attachment or other order by a third party, the customer must notify us without delay
7. Passage of risk and shipment
7.1 The risk shall pass to the customer on shipment of the goods at the latest; this shall also apply if partial deliveries are made or if we should have agreed to provide other items or services such as, for example, shipping costs or delivery to destination.
7.2 If shipment should be delayed as a result of circumstances attributable to the customer, the risk shall pass on the date we establish readiness for shipment.
7.3 Partial deliveries shall be admissible
8. Warranty for defects
8.1 The customer‘s rights regarding warranty for defects are contingent upon the customer meeting its obligations regarding inspection and notification properly pursuant to § 377 HGB (German Commercial Code). If the customer intends to implement the supplied goods into another good or real property, the customer is obliged to inspect the supplied goods prior to implementation.
8.2 In case of a defect at the time of transfer of risk, we shall be entitled to remedy it at our discretion by repair or replacement free of charge, notwithstanding the customer‘s rights out of §§ 439 Sec.3 and 445 a) German Civil Code (BGB). Should the costs of repair or replacement of the supplied goods be disproportionate high, we are entitled to refuse repair or replacement. This will be the case if the costs of repair or replacement would be ten or more times higher than the contract value. If we should not be ready or unable to perform rectification of the defect, particularly if this should be delayed beyond reasonable time-limits for reasons attributable to us, or if at least two rectification attempts should fail, thecustomer shall be entitled – without prejudice to any claims for damages pursuant to clause 9 below – to cancel the contract or claim reduction of payment.
8.3 If the customer is entitled to make claims for material defects at its discretion, customer shall be obliged to state on our request and within reasonable time whether it will demand – subject to the appropriate requirements – remedial performance, cancel the contract, claim reduction of the purchase price and/or claim damages in lieu of performance.
8.4 The expenses incurred for the purpose of remedial performance, particularly costs of transport, travel, labour and materials shall be at our charge unless the expenses should be increased because the delivery item was later relocated to a place other than the customer‘s domicile and such relocation was not agreed with us in writing.
8.5 We do not warrant that the goods supplied by us comply with foreign national regulations unless specifically agreed in writing.
8.6 With regard to our liability, article 9 shall apply in all other respects. Any further claims in case of defects shall be excluded.
9. Liability
9.1 In case of wrongful intent or gross negligence on our part or on the part of our representatives or auxiliary persons we shall be liable pursuant to the statutory provisions; the same shall apply in case of culpable violation of essential contractual obligations. Our liability for damage shall be limited to the typical foreseeable damage except in case of deliberate violation of contract.
9.2 Liability for loss of life, limb or health and liability according to the product liability legislation shall remain unaffected.
10. Governing law, legal venue
10.1 The present agreement is governed by the law of the Federal Republic of Germany (excluding the provisions on conflict of laws of international private law and the UN Convention on International Sale of Goods). The place of performance for all our supplies and services is our place of business.
10.2 If the purchaser is a merchant, a legal entity under public law or a special fund under public law, the exclusive legal venue shall be Ravensburg, Germany. However, we shall also be entitled to institute an action or claim for injunctive orders against the customer at the latter‘s place of business or domicile.
11. Other provisions
11.1 The above provisions shall also apply to deliveries abroad unless otherwise agreed in writing.
11.2 Shipments abroad shall additionally be subject to the „ex works“ clause of INCOTERMS 2010.
11.3 If any individual provision should be legally ineffective, all other provisions and agreements shall remain unaffected.
11.4 The contract language is German. In case of differences in the meaning of the German and the English text of this General Terms and Conditions the German Text shall prevail.
Broszeit GmbH, June 2018
