General Terms and Conditions for Purchases and Contracts
(1) These General Terms and Conditions for Purchases and Contracts shall only apply to business enterprises, legal entities under public law or special fund assets governed by public law or a public law entity with special funds.
(2) Only our General Terms and Conditions for Purchases and Contracts shall apply. We do not recognise contrary or differing terms set by the supplier and/or contractor (Seller), unless we have expressly approved of them in writing. Our General Terms and Conditions for Purchases and Contracts shall also apply, if we unreservedly accept the Seller's delivery and/or services knowing that the Seller's conditions are inconsistent with, or deviate from, ours.
(3) These General Terms and Conditions for Purchases and Contracts shall also apply to all future contractual relationships with the Seller without any requirement on our part to make repeated reference to them in each individual case.
§ 2 Purchase Orders
We shall place our orders in writing. Verbal agreements, conclusion of contracts and orders, including modifications, supplements or cancellations of contracts or orders, shall be individually confirmed in writing by the parties. Before accepting any purchase order, the Seller must inform us about obvious mistakes (e.g. typing errors or calculation errors) and any incompleteness in the purchase order, including the order documents so that they can be corrected and/or completed.
§ 3 Prices, Packing, Delivery, Transfer of Risk, and Terms of Payment
(1) The prices specified in our order are fixed prices. They include all expenses connected with the goods and services to be provided by the Seller. If no particular agreement has been made, the prices are to be understood as "Delivered in named town" (DAP according to Inco terms 2010), including packaging, and plus the statutory value-added tax.
For shipments from outside the EU, the pricing term "Delivered Duty Paid at named place of destination" (DDP according to Inco terms 2010) shall apply.
(2) Prices are generally valid from order date.
(3) We must be notified in writing of price increases at least 90 days in advance.
(4) If the price is "ex works" (EXW in accordance with Inco terms 2010), shipping is to be effected by the Seller at the lowest possible costs and by the most appropriate carrier, unless we collect the goods ourselves or through a transport company commissioned by us. The Seller shall bear any additional costs not previously agreed.
(5) The Seller shall respect our packing instructions and pertinent national and international packaging, labelling and transport requirements. The shipment must include a detailed delivery note with ordering information. All costs incurred in relation to the disposal of the delivered packaging material shall be borne by the Seller.
(6) Unless otherwise agreed, we shall pay the purchase price within 14 days from delivery of all goods and receipt of the invoice with a 3% cash discount, or within 30 days net. Invoices shall be sent to us separately, in due form, after receipt of the goods or services, along with any and all documents and data related thereto. Invoices that are not properly submitted shall only be deemed to have been received by us when they are accurate.
(7) The Seller shall not be entitled to transfer, assign, sublicense or pledge rights arising from the contracts concluded with us without our prior written consent. The Seller shall only be entitled to offsetting rights if its counterclaims have been finally legally established or have been recognised by us. The Seller shall not be entitled to any rights of retention. We shall be entitled to set-off and retention rights to the extent provided for by law.
(8) The Seller shall be liable for material risk until our or our representative's receipt of the goods at the place of destination where the goods are to be delivered according to the order.
(9) In the absence of an agreement on the type of delivery/transport, the Seller shall deliver "free on ramp" at ASSMANN BÜROMÖBEL GMBH & CO. KG, Heinrich- Assmann-Straße 11, 49324 Melle, from Monday to Thursday between 06:00 - 12:30, and on Fridays between 06:00 – 12:00.
§ 4 Delivery Period and Delays in Delivery
(1) The period for delivery shall run from the date of the order. Agreed performance dates and deadlines are binding. The date of arrival of the goods at the place of receipt or point of use specified by us is decisive for the observance of the delivery date or period. With regard to machines, capital goods and services, the completeness of delivery and/or performance is essential. The Seller is obliged to request all documents to be provided by us which are necessary for the execution of the order, in ample time.
(2) The Seller is not entitled to partial performance. We have the right but no obligation to accept partial performance by the Seller.
(3) If the agreed period or the agreed deadline for delivery or service cannot be met by the Seller, he must notify us in writing, stating the reasons for, and expected duration of, the delay. The observance of such notification obligation does not release the Seller from the obligation to fulfil its delivery or service duties on time.
(4) Where performance is delayed beyond the agreed delivery or service deadline due to circumstances for which the Seller is responsible, the Seller is liable to compensate us for the damages incurred by us. Should the Seller not meet the delivery date agreed, we shall be entitled, upon expiry of an appropriate grace period and in the absence of a successful outcome, to withdraw from the contract, and, if the Seller is responsible for the delay, to demand compensation in lieu of performance, or reimbursement of expenses incurred in vain. The statutory provisions relating to the dispensability of a deadline or of a reminder shall remain unaffected.
(5) In case of delayed delivery or service, our claim to performance under the supply contract shall only expire when a claim for compensation in lieu of performance has been explicitly asserted in writing, waiving the claim to performance, upon assertion of the claim for compensation in lieu of performance in a court, upon payment of damages or upon the Seller's declaration that it recognises the claim for compensation and that it will pay damages.
(6) Should the Seller delay in making delivery, we shall be entitled to demand lump-sum damages for said delay in the amount of 0.15 % of the contract value for each working day of the delay, subject to a maximum of 5 % of the contract value. In addition, we reserve the right to claim further compensation over and above the contractual penalty, for the loss suffered as a result of the delay. Any non-compliance with the agreed delivery deadline will be considered a default. The Seller is entitled to prove that no damage or significantly less damage has resulted from the default than the total amount claimed by us.
(7) We reserve the right to assert further rights and remedies available to us by virtue of the law or the agreement due to the delayed performance or failure to meet obligations.
§ 5 Warranties, Defective Delivery and Product Liability
(1) The Seller warrants that the delivered goods are of the contractually agreed quality or of a quality which is usually found in items of the same kind and that the guarantees assumed are fulfilled.
(2) The Seller further warrants that the delivered goods conform to the relevant recognised state of the art, meet the agreed quality standards and are free of faults and any third party rights.
(3) We are entitled to the full statutory warranty rights (subsequent performance, rescission of contract, reduction, damages). In any case of defect, we shall be entitled to demand from the Seller, at our choice, remedy or replacement (subsequent performance). We shall be entitled to return defective goods at the Seller's expense. Following the fruitless expiry of a suitable period of grace set by us for subsequent performance, we can remedy the defect ourselves or have it remedied by third parties or procure a substitute item from a third party and demand reimbursement from the Seller for any expenses and cost incurred thereby, unless it is entitled to refuse subsequent fulfilment. We shall be entitled to have defects remedied, even without granting a grace period, if a substantially higher damage may occur as a result of a defect and if, as a result of this particular urgency, it is no longer possible to inform the Seller of the defect or the threat of damage and to allow the Seller a period of time, even a short one, to take remedial steps, and if we advise the Seller of the fact that we will rectify the defect ourselves.
(4) The warranty period shall be two years, unless a longer period for warranty claims and rights is prescribed by law. The warranty period will recommence to run for any replaced goods or services by the Seller as from the date of remedy of the defect, unless it refutes the existence of the defect and expressly makes the proviso at the time of the replacement delivery that this is only a gesture of goodwill. The same applies to subsequent fulfilment. In this case, the warranty period shall, however, only recommence to run to cover any future re-emergence of the same defect or the consequences of a faulty repair.
(5) We perform a goods inward inspection only with regard to obvious defects or transport damages. We reserve the right to perform further goods inward inspections. We will give notice of such defects without undue delay. In all other respects, we will send notification of defects as soon as these have been identified in our normal course of business. In this respect, the Seller shall explicitly waive the objection of a delayed notification of defects.
(6) Any claims made against us owing to product liability regulations will be forwarded by us to the Seller if they stem from goods supplied by the Seller. In this context, the Seller is also obligated to reimburse us for any costs that result from, or in connection with, a precautionary call-back action initiated by us, pursuant to sections 683 and 670 of the German Civil Code (BGB).
§ 6 Supplier Declaration
(1) Before the first delivery, the Seller must ensure that we receive an unrequested long-term supplier declaration with preferential origin for the current calendar year. The long-term supplier declaration must be sent to us at the beginning of each year, unrequested. If, during the calendar year, changes occur that are the basis of the long-term supplier declaration, we must be informed about this immediately.
(2) The Seller is obliged to enable the inspection of the proof of origin by the customs service, provide the information necessary for this purpose, and produce any necessary of cial con rmations.
(3) The Seller is obliged to compensate us for damage that is caused to us because the declared origin is not recognised by the competent authority due to incorrect certi cation or a lack of review possibilities. However, the liability is only applicable in the event of culpable conduct.
§ 7 Retention of Title
We shall recognise a simple retention of title by the Seller, provided that we are authorised to process, connect, mix or resell the processed and unprocessed goods in the ordinary course of business. We do not recognise any extended or prolonged retention of title.
§ 8 Con dentiality and Industrial Property Rights
(1) The Seller shall be obliged to treat the conclusion of the contract, the purchase order and all commer- cial and technical details in connection with such, as con dential and may not refer to the business relationship with us in advertising materials without our express consent. The Seller undertakes to treat as a business secret any not obvious and/or not generally known economic and technical details of which it gains knowledge during the business relationship, and to disclose them only to the extent that is absolutely necessary for executing the respective order or contract. This obligation of secrecy and non-disclosure shall also apply beyond the duration of the respective order or contract. Seller‘s subcontractors and employees shall be required to enter into the above con dentiality obligations. We shall treat the Seller‘s personal data in accordance with the relevant legal provisions.
(2) Documents, drawings, data, software, materials and other objects, such as samples, patterns, renderings and tools, which are made available to the Seller by us for the purpose of lling the order shall remain our property. They must be protected against unauthorised inspection or use and must be returned to us at our request or, at the latest, after completed delivery. Any copies made thereof by the Seller must be destroyed immediately.
(3) Documents, drawings, data, software, materials and other objects, such as samples, patterns, ren- derings and tools, which are our property pursuant to subs. (2) above or which are produced by the Seller on the basis of our data, documents or calculations, may only be used, reproduced, exploited or disclosed to third parties subject to our prior written consent.
(4) If and insofar patents or any other industrial property rights of a third party are infringed in the Federal Republic of Germany or in the country of destination by the delivery and use of the goods or services, provided the Seller is informed thereof, the Seller shall be obliged to compensate us for any costs, expenses and damages resulting thereof and to hold us harmless in relation to claims raised by third parties provided that the Seller is responsible for the respective infringement. We shall be entitled to demand that the Seller obtains, at the Seller‘s own expense, from the holder of the infringed patent or other industrial property rights the required approvals or licenses for the delivery, commissioning, use, resale, or other use and realisation of the object of delivery or service as stipulated in the pur- chase order, unless the acquisition of the appropriate license cannot reasonably be expected from the Seller due to its costs. Acceptance or approval of drawings, renderings and samples submitted by the Seller shall not release the Seller from his responsibility.
(5) The Seller is not entitled to make our business relationship publicly known for reference purposes, or to disclose it to third parties in any other way without our prior express consent.
§ 9 Contractual Penalty
For each individual incident of violation of the aforementioned con dentiality obligations speci ed in Section 7.1 and of the prohibition regarding the use, exploitation and publication specied in Section 7.3 of these General Terms and Conditions for Purchases and Contracts, we shall be entitled to claim a contractual penalty from the Seller in the amount of 1 % of the contractual amount, subject to a maximum of 5 % of the contract value. In addition, we reserve the right to demand further compensation for the loss suffered due to the violation, over and above the contractual penalty.
§ 10 Environmental Protection
The Seller guarantees that any environmental laws and regulations have been complied with in the manufacturing process or procurement of the delivered products.
§ 11 Place of Performance, Place of Jurisdiction and Applicable Law
(1) Unless otherwise agreed, the place of performance for deliveries or services shall be the place of delivery or point of use speci ed by us, and, for all other obligations of both parties, the registered of ce of our company, Melle.
(2) Place of jurisdiction shall be the registered of ce of our company, Melle. We are also entitled to take action against the Seller at its own place of jurisdiction.
(3) The order or contract shall be exclusively governed by the laws of the Federal Republic of Germany. The validity of the United Nations agreement regarding contracts about the international sale of goods (UN Convention on Contracts) is excluded. (4) In the event that one or more provisions of these General Terms and Conditions for Purchases and Contracts is, or shall become invalid or unenforceable, the validity of the other provisions shall not be affected thereby. In the place of the void provision, a provision shall be agreed that approximates the original intent of the contracting partners as closely as possible when they had considered that issue. The same shall be applicable in case of a gap.
Status as at: August 2018