General terms and conditions of purchase and production (full version)
1 Scope, Form
(1) These General Terms and Conditions of Purchase and Production apply to all business dealings with our business partners who are entrepreneurs as defined by section 14 BGB (Bürgerliches Gesetzbuch [German Civil Code]) (“Contractual partners”).
(2) Our General Terms and Conditions of Purchase and Production apply to contracts of sale and contracts for work and materials, as well contracts to produce a work, service contracts and other contracts with our contractual partners.
(3) Unless agreed otherwise, these General Terms and Conditions of Purchase and Production shall apply in the version in force at the time of the conclusion of the contract, or at all events in the version last communicated to the contractual partner. The applicable version of the General Terms and Conditions of Purchase and Production in each case shall apply as the basis for the legal relationship between us and our contractual partner as a framework agreement for future contracts of the same type as well.
(4) These General Terms and Conditions of Purchase and Production apply exclusively. General terms and conditions of business of the contractual partner shall only become part of the contract if and to the extent that we have expressly agreed this in writing or in text form (“in writing”). The acceptance of the contractual partner’s performance without reservation shall not constitute acceptance of the contractual partner’s general terms and conditions of business.
(5) The basis for the content of any individual agreements with precedence over these General Terms and Conditions of Purchase and Production shall be, subject to proof to the contrary, a contract concluded in writing or our written confirmation. Legally relevant declarations and notifications by the contractual partner (e.g. deadlines, reminders, withdrawal from the contract) shall be submitted in writing. Formal requirements prescribed by law and further proofs remain unaffected and we reserve the right to request further evidence, particularly if the authority of the declaring party is in doubt.
(6) Statutory regulations apply or apply in addition, unless directly modified or expressly excluded by these General Terms and Conditions of Purchase and Production.
2 Conclusion of the contract
(1) Our order or instruction shall only be binding if made in writing and shall be valid for 5 (five) days thereafter. Any obvious errors (e.g. spelling or calculation error) and incompleteness of the order, including the order documents, must be drawn to our attention by the contractual partner; otherwise the contract shall be regarded as not concluded.
(2) The contractual partner is required to confirm our order or instruction in writing within 5 (five) days or, in particular, to provide its performance without reservation by sending the goods or by coordinating and announcing the provision of the performance (acceptance).
3 Delivery time and late delivery
(1) The delivery date given by us in the order is binding. The contractual partner must immediately notify us in writing if – for whatever reason – it anticipates that it will not be able to comply with agreed delivery times.
(2) If the contractual partner fails to deliver on time, we shall be entitled – in addition to our statutory claims – to demand flat-rate compensation for the damage caused by the delay in the amount of 1% of the net price per complete calendar week, but no more than a total of 5% of the net price of the goods that were not delivered on time. We reserve the right to demonstrate that the damage incurred by us exceeds this amount. The contractual partner reserves the right to demonstrate that no damage or only significantly lower damage was incurred by us.
(3) The acceptance of a delayed delivery or performance without reservation shall not constitute a waiver of claims for compensation for damages.
4 Performance, delivery, transfer of risk, default of acceptance
(1) The contractual partner may not render the performance owed by it by commissioning third parties (e.g. subcontractors) without our prior written agreement. Unless otherwise agreed in writing, the contractual partner bears the procurement risk for its performance.
(2) The contractual partner guarantees that its performance will correspond to the designated use required by the contract, the latest state of the art, the statutory provisions applicable for its use, and the relevant provisions of the authorities and trade associations, that it is in line with environmental protection regulations which apply in each case and with any quality assurance agreement concluded with us, and that it does not violate the rights of third parties.
(3) The most recent version of the quality assurance agreement is binding and represents the quality requirements for the performance of the contractual partner that must be strictly complied with.
(4) Delivery shall be made to the location stated in the order. Unless agreed otherwise, delivery shall therefore be made to our place of business in Neutraubling. The place of destination shall also be the place of performance and, where applicable, remedial performance in each case (obligation to be performed at the creditor’s place of business).
(5) A dispatch note shall be sent to us for every delivery no later than the day of dispatch. Invoices, delivery notes and packing slips included in the goods shipment shall not count as dispatch notes. Order and catalogue numbers, article numbers and the quantity contained in the delivery, plus the date shall be included in the dispatch notes, waybills, package labels, invoices and correspondence. The goods to be delivered shall be packed in such a way that they cannot be damaged.
(6) Regardless of the statutory regulations, the contractual partner must expressly offer its performance to us even if we have agreed that a particular action or contribution on our part (e.g. provision of materials) will take place at a defined or definable time. If we are in default of acceptance, the contractual partner shall only be entitled to demand reimbursement of its additional expenses in accordance with the statutory provisions (section 304 BGB). If the contract relates to a unique item to be produced by the contractual partner (individual production), the contractual partner only has further rights if we have agreed to contribute and are responsible for our failure to contribute.
5 Prices and payment terms
(1) The price specified in the order is binding. All prices are inclusive of statutory value added tax unless this is set out separately.
(2) Unless agreed otherwise in individual cases, the price includes all performances and additional costs of the contractual partner (e.g. assembly, installation, proper packaging, transport costs including transport and liability insurance, if applicable).
(3) We make payments by bank transfer on the 15th of the month following the delivery/service at a 2% cash discount, or of the net amount on the 15th of the second month. For payment by bank transfer, the payment has been made on time if our transfer order is received by our bank before the payment deadline expires; we are not responsible for delays caused by the banks that are involved in the payment process.
(4) No default interest shall be due from us. In case of late payment, the statutory provisions apply.
(5) The contractual partner’s right of set-off or retention is limited to counterclaims that have been confirmed by a legal ruling or are undisputed.
(6) The right of the contractual partner to assign claims against us is excluded.
6 Intellectual property rights, confidentiality and retention of title
(1) We reserve our proprietary rights, copyright and any other intellectual property rights in all images, plans, drawings, calculations, standard operating procedures, product descriptions and other documents. Such documents shall only be used to render the contractual performance and shall be returned to us after performance of the contract. The documents shall be kept secret from third parties, including after our business relationship has ended. The confidentiality obligation only expires if and to the extent that the knowledge contained in the documents has become common knowledge.
(2) The above provision also applies to substances and materials (e.g. software, finished and semi-finished products) and to tools, templates, samples and other items that we make available to the contractual partner for production. Insofar as they are not processed, such items must be stored separately at the contractual partner’s expense and must be adequately insured against destruction and loss.
(3) Any processing, mixing or combination (further processing) by the contractual partner of items provided shall be carried out on our behalf. The same applies to further processing of the delivered goods by us, so that we are deemed to be the manufacturer and acquire ownership of the product in accordance with the statutory provisions at the latest upon further processing.
(4) The transfer of ownership of the goods to us shall occur unconditionally and irrespective of the payment of the price. However, if we accept an offer by the contractual partner that is conditional upon the payment of the purchase price in an individual case, the contractual partner’s retention of title shall expire upon payment of the purchase price for the delivered goods at the latest. We retain the right to resell the goods in the ordinary course of business even before payment of the purchase price by assigning the claim resulting from this resale in advance (in the alternative, application of the simple retention of title which is extended to the resale). In any event, all other forms of retention of title, particularly extended and assigned retention of title and retention of title which is extended to further processing are excluded.
7 Defective delivery and performance, infringement of property rights
(1) The statutory provisions apply to our rights in case of defects in quality and title and other breaches of duty by the contractual partner, unless otherwise stipulated below.
(2) Product descriptions, samples and drawings which - in particular through the designation or references to our order - are the subject of the respective contract shall be deemed to be an agreement on the quality. It makes no difference whether the product description comes from us, the contractual partner or the manufacturer.
(3) The statutory provisions apply to the commercial examination and notification obligations (sections 377, 381 HGB (Handelsgesetzbuch [German Commercial Code]), with the following limitation:
our examination obligation is limited to defects that become clearly apparent during the external inspection, including inspection of the delivery documents, which forms part our examination of incoming goods (e.g. transport damage, wrong and insufficient delivery), or defects that are discernible during the sampling procedure which forms part of our quality control. If a handover has been agreed, the examination obligation shall not apply. Otherwise, the determining factor is whether an examination during the ordinary course of business is possible in light of the circumstances of the individual case. Our notification obligation regarding defects that are discovered later remains unaffected. Irrespective of our examination obligation, our notification (defect notification) will be regarded as prompt and timely if it is sent within 14 working days of discovery or, in the case of obvious defects, of delivery.
(4) The obligation to remedial performance includes disassembly and reassembly of the defective goods if the goods were incorporated into another object or attached to another object in accordance with its type and intended purpose; our statutory right to reimbursement of relevant expenses remains unaffected. The contractual partner shall bear the expenses required to examine the goods and for remedial performance even if it turns out that there was no actual defect. Our liability for damage arising from unjustified demands to remedy defects remains unaffected; however, we shall only be liable in this regard if we were aware or were grossly negligent to not be aware that there were no defects.
(5) Notwithstanding our statutory rights and the provisions of subsection 4, if the contractual partner fails to comply with its remedial performance obligation within a reasonable period established by us, we shall be entitled to remove the defect ourselves and demand reimbursement of the expenses required or an appropriate advance payment. If the contractual partner fails to comply with its remedial performance obligation or if it is unreasonable to us (e.g. because of particular urgency, risk to operational safety or risk of disproportionate damage), a period for remedial performance need not be granted; we shall inform the contractual partner of such circumstances immediately, if possible before they occur.
(6) The contractual partner shall be liable for patents or other intellectual property rights not being infringed by the use of the delivery items. It shall release us from all claims asserted against us or our customers due to the infringement of industrial property rights.
8 Supplier’s recourse
(1) In addition to the claims for defects, we may rely on our statutory rights to recourse within a supply chain (supplier’s recourse in accordance with sections 445a, 445b, 478 BGB) without restriction. In particular, we shall be entitled to demand that the contractual partner use the particular type of remedial performance (rectification or replacement delivery) that we owe to our buyer in each case. This shall not restrict our statutory right to choose the type of remedial performance (section 439 (1) BGB).
(2) Before we accept or meet a defect claim asserted by our buyer (including reimbursement of expenses in accordance with sections 445a (1), 439 (2) and (3) BGB), we shall notify the contractual partner, briefly summarise the facts and ask the contractual partner for comments in writing. If the contractual partner fails to provide substantiated comments within a reasonable period and no amicable solution is found either, the defect claim shall be regarded as owed to the buyer if we actually grant it. In this case the contractual partner shall bear the burden of furnishing evidence to the contrary.
(3) Our claims to supplier’s recourse also apply if the defective goods were further processed by us or another entrepreneur, e.g. by incorporating them into another product.
9 Manufacturer’s liability
(1) If the contractual partner is responsible for a product defect, it must indemnify us against claims by third parties to the extent that the cause for the defect is within its sphere of control and organisation and the contractual partner is liable in relation to third parties.
(2) As part of its indemnity obligation, the contractual partner shall reimburse us for expenses resulting from or in connection with claims by third parties, including in relation to recall campaigns conducted by us, in accordance with sections 683, 670 BGB. To the extent possible and reasonable, we shall inform the contractual partner of any recall campaigns and give the contractual partner the opportunity to comment. Additional statutory rights remain unaffected.
(3) The contractual partner shall purchase and maintain product liability insurance for a flat-rate sum insured of EUR 10 million per personal injury/property damage.
(4) The contractual partner is obliged to support us appropriately at the first request in clarifying and defending against claims by third parties as well as in enforcing claims against third parties.
10 Limitation period
(1) Unless stipulated otherwise below, the statutory provisions on the statute of limitations apply to mutual claims of the parties.
(2) Notwithstanding section 438 (1) (3) BGB and section 634 (1) (1), the general limitation period for defect claims is four years from the passing of risk. If a handover is agreed, the limitation period starts running from the handover. The four-year limitation period also applies to claims for defects in title, but the statutory limitation period for real rights of a third party for return of the item (section 438 (1) (1) BGB) remains unaffected; in addition, claims for defects in title shall not become time-barred under any circumstances as long as the third party can still assert the right against us – especially by reason of it not being time-barred yet. If the general limitation period for our warranty rights falls short of the statutory limitation period, the statutory limitation period applies.
(3) The limitation periods of sales law including the above extensions apply – to the extent stipulated by law – to all contractual defect claims. If we have non-contractual claims for damages due to a defect, the regular statutory limitation period applies (sections 185, 199 BGB), unless the application of the limitation periods under sales law leads to a longer limitation period in a particular case.
11 Applicable law and place of jurisdiction
(1) The law of the Federal Republic of Germany applies to these General Terms and Conditions of Purchase and Production and to the contractual relationship between us and the contractual partner under exclusion of uniform international law, particularly the United Nations Convention on Contracts for the International Sale of Goods.
(2) If these General Terms and Conditions of Purchase and Production are translated into a language other than German, the German version of the relevant provision shall be authoritative and binding in cases of doubt with regard to content and interpretation.
(3) The exclusive place of jurisdiction – including international – for all disputes arising from the contractual relationship is Regensburg. The same applies if the contractual partner is an entrepreneur as defined by section 14 BGB. However, we shall also be entitled to take legal action at the place of performance of the performance obligation or at the general place of jurisdiction of the contractual partner. Overriding statutory provisions, particularly on exclusive jurisdiction, remain unaffected.
Maschinenfabrik GUIDO GmbH
Version: 04/2021
