Terms and conditions of purchase
Dural GmbH
TERMS AND CONDITIONS OF PURCHASE for production materials, equipment and services
Status: February 2016
Scope of application
1. These Terms and Conditions of Purchase apply to entrepreneurs, legal entities under public law and special funds under public law.
2. Our orders are placed exclusively on the basis of the following terms and conditions. Terms and conditions of the partner that are not expressly recognized by us are not valid.
3. The terms and conditions of purchase also apply to all future orders and contractual relationships between the partner and us.
General provisions
4. The contracting parties shall confirm verbal agreements in writing without delay.
5. Should individual parts of these Terms and Conditions of Purchase be or become invalid, this shall not affect the validity of the remaining provisions.
6. We are entitled to terminate the contract without notice if insolvency proceedings are applied for against the partner’s assets.
7. The Quality Assurance Guidelines for Suppliers of Dural GmbH are an integral part of the contract.
Order
8. If the Partner does not accept our order within 2 working days of receipt, we shall be entitled to cancel the order.
9. Delivery call-offs shall become binding at the latest if the Partner does not object within 2 working days of receipt.
10. We may request changes to the delivery item within the scope of what is reasonable for the Partner. The effects, in particular with regard to additional and reduced costs as well as delivery dates, are to be regulated appropriately by mutual agreement.
Long-term and call-off contracts, price adjustment
11. Open-ended contracts and contracts for more than 1 year can be terminated with a notice period of 6 months.
12. If, in the case of long-term contracts (contracts with a term of more than 12 months and open-ended contracts), a significant change in wage,
material or energy costs occurs, each contracting party shall be entitled to demand negotiations on a
reasonable adjustment of the price, taking these factors into account.
Confidentiality
13. Each contracting party shall use all documents (including samples, models and data) and knowledge obtained from the business relationship only for the jointly pursued purposes and shall keep them secret from third parties
with the same care as its own corresponding documents and knowledge if the other contracting party designates them as confidential or has an obvious interest in keeping them secret.
This obligation begins from the first receipt of the documents or knowledge and ends 36 months after the end of the business relationship.
14. the obligation shall not apply to documents and knowledge which are generally known or which were already known to the contractual partner upon receipt,
without the contractual partner being obliged to maintain secrecy, or which are subsequently transmitted by a third party authorized to pass them on, or which are developed by the contractual partner receiving
without using documents or knowledge of the other contractual partner which are to be kept secret.
Drawings and descriptions
15. Drawings and descriptions provided by us to the partner shall remain our inalienable material and intellectual property,
which must be returned to us without request after completion of the order. The partner shall transfer ownership of drawings and descriptions produced according to our specifications to us when they have been paid for in full.
Samples and means of production
16. Production equipment (tools, molds, templates, parts, raw materials, etc.) and documents (including samples and data) that we provide to the partner remain our property.
17. The partner is obliged to label this production equipment with a reference to our ownership and to insure it at its own expense against fire, water and
theft at replacement value. Upon request, the partner shall provide us with evidence of the existence of corresponding insurance policies.
18. The partner shall inform us immediately of any damage to the production equipment.
19. The partner shall carry out maintenance and repair work on the production equipment at its own expense.
20The processing, conversion or installation of production equipment which we have provided to the partner shall be carried out for us.
If this leads to an inseparable mixing of our items with items of the partner or a third party, we shall become co-owners of the newly created item
in the ratio of the value of our items to the new item. If the processing, conversion or installation is carried out in such a way that our
items are to be regarded as essential components of a main item of the partner, we shall acquire co-ownership of the main item in the ratio of the value
of our items to the new item. In both cases, the partner shall keep the co-ownership share for us.
Prices
21. Prices include packaging, freight, tolls, postage, insurance, customs duties and other charges and exclude taxes, in particular value added tax.
Proofs of origin, VAT certificates and export restrictions
22. The partner shall provide any proof of origin requested by us with all necessary information and duly signed without delay to
. The partner shall inform us immediately and without being asked in writing if the information in the proofs of origin for the delivered goods is no longer correct.
23. The same shall apply to proofs under VAT law for foreign and intra-Community deliveries.
24. The partner shall inform us immediately if a delivery is subject in whole or in part to export restrictions under German or other law
.
Terms of payment, assignment of claims
25. Unless otherwise agreed, we shall pay subject to the provision in Clause 27 after delivery and receipt of the proper invoice within 30 days of receipt of the invoice at our premises with a 3% discount or 60 days net.
26. In the event of acceptance of early delivery, the due date shall be based on the agreed delivery date.
27In the event of defective delivery or delay in delivery, we shall be entitled to withhold payment pro rata until proper performance.
28. The Partner shall not be entitled to assign its claims against us or have them collected by third parties without our written consent, which may not be unreasonably withheld. In the event of extended retention of title, consent shall be deemed to have been granted.
If the partner assigns its claim against us to a third party contrary to sentence 1 without our consent, the assignment shall nevertheless be effective. However, we may, at our discretion, pay
to the partner or the third party with discharging effect.
29. If, after conclusion of the contract, it becomes apparent that our delivery claim is jeopardized by the partner’s inability to pay, we may refuse
payment and set the partner a reasonable deadline within which it must deliver concurrently with payment or provide security.
If the partner refuses to do so or if the deadline expires without success, we shall be entitled to withdraw from the contract and claim damages.
Delivery and transfer of risk
30. Unless otherwise agreed, the Partner shall deliver “free domicile”. The risk shall pass to us when the Partner has brought the goods into our warehouse.
31. The delivery period shall commence with the dispatch of the order confirmation and shall be extended appropriately if the conditions of force majeure exist.
32. Partial deliveries shall only be permitted by special agreement.
33. Production-related excess or short deliveries shall be permitted within a tolerance of 5 percent of the total order quantity. The total price shall change accordingly.
Activity in our company
34. Persons who work within our company in fulfillment of the partner’s obligations are subject to the provisions of our company regulations
and our instructions with regard to the accident prevention, occupational safety, environmental and other regulations applicable at our company. Hazardous substances may only be used within our company after consultation with our specialist personnel and must be properly labeled.
Provision of materials
35. Materials, parts, containers and special packaging provided by us shall remain our property. These may only be used as intended. The processing of materials and the assembly of parts shall be carried out for us. It is agreed that we shall be co-owners of the products manufactured using our materials and parts in the ratio of the value of the materials provided to the value of the overall product, which shall be stored for us by the supplier.
Delay in delivery
36. If the partner can foresee that the goods cannot be delivered within the delivery period, the partner shall inform us immediately and in writing at
, stating the reasons for this and, if possible, the expected delivery date. This shall not affect our claims due to the partner’s delay in delivery.
Retention of title
37. The Partner shall retain title to the delivered goods until full payment has been made (simple retention of title).
Material defects
38. The goods must meet the agreed specifications and that which must be assumed by the Partner with knowledge of the intended use, but at least the mandatory statutory requirements and the state of the art. Decisive for the contractual condition of the goods is the time of the transfer of risk.
39. In its deliveries, the Partner shall comply with the applicable statutory regulations of the European Union and the Federal Republic of Germany, e.g. the REACH Regulation (Regulation EC No. 1907/2006), the Act on the Return and Environmentally Sound Disposal of Electrical and Electronic Equipment (ElektroG) as national implementation of Directive 2002/95/EC (RoHS) and Directive 2002/96/EC (WEEE) and the End-of-Life Vehicles Act
as national implementation of EU Directive 2000/52/EC. The Partner shall inform us immediately of any relevant changes to the goods, their deliverability, usability or quality caused by statutory regulations, in particular by the REACH Regulation, and shall coordinate suitable measures with us in individual cases. The same shall apply as soon as and insofar as the partner recognizes that such changes
will occur.
40. Acceptance shall be subject to an inspection for freedom from defects, in particular also for correctness and completeness, insofar and as soon as this
is feasible in the ordinary course of business. Defects shall be notified by us immediately after discovery. In this respect, the supplier waives the objection of delayed notification of defects.
41. Claims for material defects shall become time-barred after 3 years. This shall not apply if the law provides for longer periods, in particular for defects in a building and for goods that have been used for a building in accordance with their normal use and have caused its defectiveness.
42. If the partner allows a reasonable deadline set for it to expire without having rectified the defect or delivered defect-free goods, we may rectify the
defect ourselves or have it rectified by a third party at the partner’s expense. The statutory provisions on the dispensability of setting a deadline and all statutory rights due to defects, including rights of recourse, shall remain unaffected.
Defects of title
43. The partner warrants that all deliveries are free of third-party rights and, in particular, that the delivery and use of the goods does not infringe any
patents or other industrial property rights of third parties in the country of the agreed place of delivery, in the European Union, Switzerland, Turkey, the USA and – insofar as the partner has been informed – in the intended countries of use.
44Insofar as the partner is directly liable to the third party by law, the partner shall indemnify us against claims by third parties arising from any infringements of industrial property rights and shall bear all necessary costs incurred in this connection.
45. Claims due to defects of title shall become statute-barred after 3 years.
Other claims, liability of the partner
46. If the Partner is responsible for product damage, it shall be obliged to indemnify us against claims for damages by third parties to the extent that the
cause lies within its sphere of control and organization and it is itself liable in relation to third parties. Within the scope of this liability, the partner is also obliged to reimburse any expenses pursuant to Sections 683, 670 BGB and Sections 830, 840, 426 BGB arising from or in connection with a recall campaign carried out by us or our customers. We will inform the partner – as far as possible and reasonable – about the content and scope of the recall measures to be carried out and give him the opportunity to comment. Other statutory claims remain unaffected.
The partner undertakes to maintain product liability insurance that is appropriate in scope and amount. If we are entitled to further claims for damages, these shall remain unaffected.
Our liability
47. Any claims for damages for whatever legal reason can only be asserted against us in the event of intent, gross negligence on the part of our legal
representatives or executive employees and in the event of culpable breach of material contractual obligations. In the event of culpable breach
of material contractual obligations, we shall only be liable for reasonably foreseeable damage typical of the contract. The limitation of liability shall not apply in cases in which we are compulsorily liable under the Product Liability Act for personal injury or damage to property and in the event of injury to life, limb or health.
Force majeure
48. Force majeure, labor disputes, unrest, official measures and other unforeseeable, unavoidable and serious events shall release
the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. The contractual partners are obliged to provide the necessary information without delay within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
Place of performance, place of jurisdiction and applicable law
49. The place of performance for the delivery of the goods is the destination specified by us. The place of performance for our payments is the location of our company that concluded the contract.
50. The place of jurisdiction for all legal disputes, including in the context of a bill of exchange and check process, is our registered office. We are also entitled to take legal action at the registered office of the partner.
51. The contractual relationship shall be governed exclusively by the law of the Federal Republic of Germany.
