General Terms and Conditions of Purchase

§ 1 Scope, form

(1) These General Purchase Terms and Conditions (GPT) shall apply to all business relations with our business partners and suppliers (“Seller”). The GPT shall only apply if the Seller is an entrepreneur (§ 14 German Civil Code, BGB), a legal entity under public law or a special fund under public law. Our GPT apply worldwide.

(2) The GPT shall apply in particular to contracts for the purchase and/or delivery of movable goods (“Goods”). Unless otherwise agreed, the GPT the version valid at the time of the Buyer’s order or, in any case, the version most recently communicated to the Seller 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 GPT shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of the Seller shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. This consent requirement shall apply in any case, for example even if we accept the Seller’s deliveries without reservation in the knowledge of the Seller’s General Terms and Conditions of Business.

(4) Individual agreements made with the Seller in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GPT. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

(5) Legally relevant declarations and notifications of the Seller in relation to the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, remain unaffected.

(6) References to the validity of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPT.


§ 2 Conclusion of contract

(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The Seller shall notify us of obvious errors (e.g. typing and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.

(2) The Seller is obliged to confirm our order in writing within a period of 7 days or, in particular, to execute it without reservation by dispatching the goods (acceptance). A delayed acceptance shall be deemed to be a new offer and requires our acceptance.


§ 3 Delivery time and delay in delivery

(1) The delivery time stated by us in the order is binding. If the delivery time was not stated in the order and was not otherwise agreed, it shall be 7 days from the conclusion of the contract. The Seller is obliged to inform us immediately in writing if he is likely to be unable to meet agreed delivery times – for whatever reason.

(2) If the Seller does not perform his services or does not perform them within the agreed delivery time or if he is in default, our rights – in particular to rescission and compensation – shall be determined in accordance with the statutory provisions. The regulations in paragraph 3 remain unaffected.

(3) If the Seller is in default, we may – in addition to further statutory claims – demand lump-sum compensation for our damage caused by default in the amount of 0.25% of the net price per completed calendar day, but not more than 5% of the net price of the goods delivered late in total. We reserve the right to prove that higher damages have been incurred. The Seller reserves the right to prove that no damage at all or only a significantly lower damage has been incurred.


§ 4 Performance, delivery, transfer of risk, default of acceptance

(1) Without our prior written consent, the Seller shall not be entitled to have the performance owed by him rendered by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for his services unless otherwise agreed in individual cases (e.g. limitation to stock).

(2) Within Germany, delivery shall be made in compliance with the Incoterms® 2010 DDP to the place specified in the order. If the place of destination is not specified and unless otherwise agreed, delivery shall be made to the air freight centre in Stuttgart. The respective destination is also the place of performance for the delivery and any subsequent performance (obligation to be performed at the place of performance).

(3) The delivery shall be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (item number and quantity) and our order identifier (date and number). If the delivery note is missing or incomplete, we are not responsible for any delays in processing and payment resulting from this. Separated from the delivery note, a corresponding dispatch note with the same content must be sent to us.

(4) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery at the place of performance. If we are in default of acceptance, this shall be deemed equivalent to handover.

(5) The statutory provisions shall apply to the occurrence of our default of acceptance. However, the Seller must also expressly offer us his service if a specific or determinable calendar period has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may demand compensation for additional expenses in accordance with the statutory provisions (§ 304 BGB).


§ 5 Prices and terms of payment, assignment

(1) The price stated in the order is binding. All prices are exclusive of statutory value added tax.

(2) Unless otherwise agreed in individual cases, the price shall include all services and ancillary services of the Seller as well as all incidental costs (in particular proper packaging, transport costs including any transport and liability insurance and any remuneration within the meaning of §§ 54 ff. UrhG).

(3) The agreed price shall be due for payment within 30 calendar days from complete delivery and performance and receipt of a proper invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our bank receives our transfer order before the expiry of the payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.

(4) We do not owe any interest on maturity. The statutory provisions shall apply to default of payment.

(5) 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 permitted by law. In particular, we shall be entitled to withhold due payments as long as we are still entitled to claims from incomplete or defective performance against the Seller.

(6) The Seller shall only have a right of set-off or retention on the basis of counterclaims that have been determined as legally binding or are undisputed.

(7) Outside the scope of application of § 354a of the German Commercial Code (HGB), the Seller may only assign his claims and other rights against us with our prior express consent or agree with third parties that they are entitled to collect his claims.

§ 6 Confidentiality and reservation of title

(1) The Seller is obliged to keep all documents and information connected with our order and/or resulting from the course of business strictly confidential. The documents are to be used exclusively for the execution of the contract on the basis of our order and are to be returned to us unsolicited after execution of the order. They may only be disclosed to third parties with our prior express consent. The obligation of secrecy shall also apply after the execution or termination of this contract; it shall expire if and to the extent that the knowledge contained in the documents and information has become generally known or was demonstrably already known to the Seller at the time of disclosure. Insofar as the Seller uses vicarious agents, assistants or other third parties (“auxiliary persons”) to perform his duties, he shall be obliged to impose the confidentiality obligations incumbent on him also on the auxiliary persons employed by him.

(2) The transfer of ownership of the goods to us must be made unconditionally and without regard to the payment of the price. If, however, we accept in individual cases an offer of transfer of title made by the Seller conditional upon payment of the purchase price, the Seller’s reservation of title shall expire at the latest upon payment of the purchase price for the goods delivered. We remain authorised to resell the goods in the ordinary course of business even before payment of the purchase price by assigning the resulting claim (alternatively, the simple reservation of title extended to resale). This excludes all other forms of retention of title, in particular the extended, the forwarded and the extended retention of title for further processing.


§ 7 Defective delivery

(1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including wrong and short delivery as well as defective operating or instruction manuals) and in the event of other breaches of duty by the Seller, unless otherwise provided for below.

(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk 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 incorporated into the contract in the same way as these GPT shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, the seller or the manufacturer.

(3) We shall not be obliged to inspect the goods or make special enquiries about any defects at the time of conclusion of the contract. Partially deviating from § 442 para. 1 sentence 2 BGB (German Civil Code), we are therefore entitled to claims for defects without restriction even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.

(4) For the commercial duty of inspection and notification of defects, the statutory provisions (§§ 377, 381 HGB) shall apply with the following proviso: Our duty of inspection shall be limited to defects which are openly apparent during our incoming goods inspection under external appraisal including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognisable during our quality control in a random sampling procedure. Otherwise, it depends on the extent to which an inspection is feasible in the normal 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 (notification of defects) shall in any case be deemed to be prompt and timely if it is sent within 10 working days of discovery or, in the case of obvious defects, of delivery.

(5) The Seller 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 unjustified requests for the removal of defects shall remain unaffected; however, in this respect we shall only be liable if we have recognised or grossly negligently failed to recognise that there was no defect.

(6) Notwithstanding our statutory rights and the provisions in para. 5, the following shall apply: If the Seller does not fulfil his obligation to provide subsequent performance – at our discretion either by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery) – within a reasonable period of time set by us, we may remedy the defect ourselves (in particular, make a covering purchase) and demand from the Seller reimbursement of the expenses required for this or a corresponding advance payment. If the subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without delay, if possible in advance.

(7) Otherwise, in the event of a material defect or defect in title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.


§ 8 Supplier recourse

(1) In addition to claims for defects, we shall be entitled without restriction to our legally determined rights of recourse within a supply chain (supplier recourse according to §§ 445a, 445b, 478 German Civil Code, BGB). In particular, we are entitled to demand from the Seller exactly the type of subsequent performance (repair or replacement) that we owe to our customer in the individual case. Our legal right of choice (§ 439 para. 1 German Civil Code, BGB) is not restricted by this.

(2) Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with §§ 445a para. 1,  439 para. 2 and 3 German Civil Code, BGB), we shall notify the Seller and request a written statement with a brief description of the facts. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Seller shall be responsible for providing proof to the contrary.


§ 9 Liability for infringements of property rights

(1) The Seller shall be liable for infringements of intellectual property rights or applications for intellectual property rights (property rights) for which he is responsible, such as trademark rights, which arise when the goods and services are used in accordance with the contract.

(2) If claims are made against us or our customers by a third party on account of the infringement of intellectual property rights for which the Seller is responsible, the Seller shall be obliged to indemnify us and our customers from these claims on first written request. The obligation to indemnify refers to all costs incurred by us or our customers from or in connection with the claim by a third party.

(3) The limitation period for these claims is three years from the transfer of risk.

(4) The contractual partners undertake to inform each other immediately of any infringement risks and alleged cases of infringement that become known and to give each other the opportunity to counteract the claims by mutual agreement.

(5) Upon our request, the Seller shall be obliged to inform us at its own expense of the use of published and unpublished own and licensed intellectual property rights and property right applications for the delivery items.


§ 10 Producer liability

(1) If the Seller is responsible for a product damage, he shall indemnify us from third party claims to the extent that the cause is within his sphere of control and organisation and he is liable himself in the external relationship.

(2) Within the scope of his obligation to indemnify, the Seller shall reimburse us for expenses pursuant to §§ 683, 670 BGB (German Civil Code) which arise from or in connection with a third-party claim, including recall actions carried out by us. We shall inform the Seller – as far as possible and reasonable – about the content and scope of recall measures and give him the opportunity to comment. Further legal claims shall remain unaffected.

(3) The Seller shall take out and maintain a product liability insurance policy with a cover amount per personal injury/property damage customary in the industry.


§ 11 Limitation period

(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise provided for below.

(2) Notwithstanding § 438 (1) No. 3 BGB (German Civil Code), the general limitation period for claims for defects is 3 years from the transfer of risk. The 3-year limitation period shall also apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for third-party claims for surrender in rem (§ 438 para. 1 No. 1 BGB) shall remain unaffected; moreover, claims arising from defects of title shall in no case become statute-barred as long as the third party can still assert the right – in particular in the absence of a limitation period – against us.

(3) The limitation periods of the law on the sale of goods, 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 here, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.


§ 12 Choice of law and place of jurisdiction

(1) These GPT and the contractual relationship between us and the Seller shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Sales Convention.

(2) If the Seller 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 – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Hamburg. The same applies if the Seller is a business within the meaning of § 14 BGB (German Civil Code). In all cases, however, we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the Seller. Priority statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.


Status: November 2020