Art. 1 Scope of validity, form
Art. 1 Scope of validity, form
(1) These General Terms and Conditions of Purchase (hereinafter referred to as “GTCP”) apply to all the business relationships held by markilux GmbH + Co. KG, Hansestrasse 53, 48282Emsdetten (hereinafter referred to as “Seller”) with its customers (hereinafter referred to as “Purchaser”). These GTCP shall only apply if the Purchaser is a trader (Sec. 14 German Civil Code (BGB)), a legal person under public law or a special fund governed by public law.
(2) The GTCP shall in particular apply to any agreements on the sale and / or supply of movable items (“goods”), without regard to whether the Seller manufactures the goods itself or purchases them from its suppliers (Secs. 433, 650 German Civil Code (BGB)). Unless anything to the contrary has been agreed, these GTCP shall apply as amended as of the date of the Purchaser’s order, or, in any event, in the version last notified to the Purchaser in written form, as a general agreement that will also apply to similar future contracts, without the Seller having to make reference to them again in each individual case.
(3) These GTCP shall apply exclusively. Any deviating, conflicting or additional general terms and conditions of business of the Seller shall only form a component of the agreement if - and only in so far as - the Purchaser has expressly agreed to their validity in writing. This requirement of consent shall apply in every case, for example even if the Purchaser accepts the Seller’s deliveries unconditionally in cognizance of the Seller’s General Terms and Conditions of Business.
(4) Provisions agreed with the Seller in any individual case (including any subsidiary agreements, additions and amendments) shall, in any case, take precedence over these GTCP. Subject to anything being proven to the contrary, a written contract or the Purchaser’s written confirmation shall be binding in regard to the content of such agreements.
(5) Any legally significant statements and notices of the Purchaser in regard to the agreement (e.g.the setting of a deadline, giving notice of a defect, shrinkage, withdrawal from the agreement) are to be submitted in writing, i.e.in written or text form (e.g. letter, e-mail, telefax). Any formal statutory requirements and further proof, in particular in cases of doubt concerning the legitimation of the party making the declaration, shall not be affected thereby.
(6) Any references to the validity of statutory provisions are only provided for clarification. Even without such clarification, the statutory provisions shall therefore apply, unless they have been directly amended in or explicitly excluded from these GTCP.
Art. 2 Conclusion of the agreement
(1) The Purchaser’s order shall at the earliest be considered binding upon being placed or confirmed in writing. The Seller shall be required to point out any obvious errors (e.g. typographical or calculation errors) and omissions in the order, including the order documentation, to the Purchaser, for the purpose of correction or completion, prior to accepting the order. Otherwise, the contract shall be deemed not to have been concluded.
(2) The Seller is expected to confirm orders from the Purchaser in writing within a period of 8 days (acceptance).
(3) Any delayed acceptance shall be considered to be a new offer, and shall require acceptance by the Purchaser.
Art.3 Term of and delay in delivery
(1) The term of delivery specified by the Purchaser in the order shall be binding. The Seller shall be obliged to inform the Purchaser in writing without delay if it expects not to be able to adhere to agreed dates of delivery - for whatever reason.
(2) Should the Seller fail to fulfil its services, or fail to provide them within the agreed delivery period, or should it fall behind in fulfilling its services (default), the Purchaser’s rights – in particular with regard to withdrawal from the contract and compensation for damage – shall be governed by the statutory provisions. The provisions laid down in paragraph 3 shall not be affected thereby.
(3) Should the Seller fall behind with its deliveries (default), the Purchaser may - besides any statutory claims - demand flat-rate compensation of the damage incurred by it which were caused by the delay in the amount of 1% of the net price per complete calendar week, however in total not more than 5% of the net price of the goods delivered late. The Purchaser reserves the right to show that greater damage has been incurred. The Seller remains entitled to provide evidence that no damage at all or only considerably less damage has been incurred.
§4 Force majeure
(1) Events of force majeure, which severely impede or prevent markilux from providing a service or meeting its obligations, give markilux the right to delay the fulfillment of said service or obligation by the length of the hindrance or by institution of a commensurate completion time.
(2) Force majeure is deemed to be any event whixh lies outside the control of markilux, through which markilux is prevented as a whole or in part from completing its obligations, especially including strikes, lawful lockouts, fire damage caused by a third party, floods, and other interruptions of operations caused by a third party or official directive as well as epidemics and pandemics.
(3) markilux will make the institution and cessation of force majeure status immediately known to the Seller.
(4) If, on the basis of the type of hindrance, it is not to be expected that the service can be fulfilled within an acceptable period of time, markilux is entitled - because of the unfulfillable nature of the service - to withdraw completely or in part from the contract.
§5 Service, delivery, the passing of risk, delay in acceptance
(1) The Seller shall not be entitled, without the Purchaser’s prior written consent, to have the services it owes provided by third parties (e.g. by sub-contractors). The Seller shall bear the procurement risk for its services, unless something to the contrary has been agreed in any specific case (e.g. by limiting stocks).
(2) The delivery shall be effected carriage paid within Germany to the location specified in the order. Should a destination not be specified, and nothing to the contrary have been agreed, the delivery shall be made to the Purchaser’s place of business in Emsdetten. The respective destination shall also be the place of fulfilment for the delivery and any subsequent fulfilment (debt to be discharged at creditor's domicile).
(3) A delivery note is to be supplied with the delivery, giving details of the date (of issue and shipping), the content of the delivery (part number and quantity) and the Purchaser’s order ID (date and number). Should the delivery note be missing or incomplete, the Purchaser shall not be responsible for any delays in processing and payment resulting therefrom. A corresponding notification of despatch having the same content is to be sent to the Purchaser separately from the delivery note.
(4) The Seller shall be obliged to comply in all respects with the technical specifications, the respective, applicable accident prevention regulations and any other statutory provisions, the VDE regulations and the latest standard engineering practice requested by the Purchaser for its deliveries.
(5) In order to guarantee their quality, the Seller is required to carry out state-of-the-art quality assurance inspections which are suitable for the nature and scope of its deliveries.
(6) With regard to their dimensions, quantity and quality, the values ascertained by the Purchaser when conducting the incoming goods inspection and quality check shall be honoured.
(7) Any costs incurred by the Purchaser due to the Seller failing to comply with the shipping regulations are to be borne by the Seller. The same shall apply if any additional costs of expedited transport are required, incurred through circumstances that are the fault of the Seller. The Purchaser shall not recognise the imposition of any additional transport insurance.
(8) Road haulage will only be accepted at the Purchaser’s factories from Mondays to Fridays. Delivery is also possible on a Saturday following consultation. The delivery times specified in the order are to be adhered to.
(9) Should nothing to the contrary have been agreed in the order, Incoterms 2012 shall apply.
(10) The Seller shall be required to meet the environmental requirements in accordance with German and European law, including EU Directive 2011/65/EU, “Restriction of the use of certain hazardous substances in electrical and electronic equipment” (RoHS Directive) and the Electrical and Electronic Equipment Act in full.
(11) Electrical and electronic devices in any equipment category, as well as components for the latter, must comply with the substance prohibitions of EU Directives 2011/65/EU (RoHS Directive 2) and the acts, ordinances, decisions and any other provisions enacted for their implementation. Upon request, the Seller shall be required to hand over to the Purchaser a written declaration of conformity. Said devices must bear the symbol shown in Appendix IV of EU Directive 2002/96/EG (WEEE).
(12) The Seller guarantees that all products are in line with the requirements of the RoHS Directive. The Seller shall be required to compensate the Purchaser for any damage and expenses (including the costs of legal prosecution) and for any claims filed by third parties which are based on a transgression of the RoHS Directive or other applicable environmental regulations, which is the fault of the Seller.
(13) The Seller shall be obliged to confirm to the Purchaser that its products and packaging do not contain any substances in the candidate list pursuant to Article 59 (1) of Regulation (EC) No. 1907/2006 („REACH“) which exceed 0.1 % by mass.
(14) The risk of accidental destruction or accidental impairment of the item shall pass to the Purchaser upon the delivery being handed over at the place of fulfilment. In so far as acceptance has been agreed, this shall be pertinent to the passing of risk. In all other respects, too, the statutory provisions of the law on contracts for work and services shall apply accordingly for formal acceptance of the goods. The handing over or acceptance shall still be deemed to have taken place if the Purchaser is in arrears with formal acceptance.
(15) The statutory provisions shall apply to any delay occurring in acceptance on the part of the Purchaser. The Seller must, however, also expressly offer its services to the Purchaser if a particular or specifiable calendar date has been agreed for any action or co-operatiion on the part of the Purchaser (e.g. in the provision of material).
(16) Should the Purchaser fall into arrears with acceptance, the Seller may request compensation for any extra expense it has incurred, in line with the statutory provisions (Sec. 304 German Civil Code (BGB). Should the agreement concern a non-fungible item that is to be manufactured by the Seller (bespoke manufacture), the Seller shall only be entitled to assert any further rights if the Purchaser has undertaken to offer its co-operation and is then at fault for failing to fulfil its obligations.
Art. 6 Prices and terms of payment
(1) The price specified in the order shall be binding. All prices are understood to include the statutory VAT unless this has been shown separately.
(2) In so far as nothing to the contrary has been agreed in any specific case, the price shall include all services and ancillary services of the Seller (e.g. assembly, installation), as well as any ancillary expenses (e.g. proper packaging, transportation costs, including any transportation and third-party liability insurance).
(3) Should prices according to weight have been agreed, the net weight ascertained by the Purchaser shall apply for calculation purposes.
The agreed price shall be due for payment within 30 calendar days as from complete delivery and the services having been provided in full (including any acceptance agreed), as well as from an orderly invoice for payment being received. Should nothing to the contrary expressly have been agreed, the Seller shall grant the Purchaser 3% prompt payment discount on the net amount of the invoice if the Purchaser makes payment within 14 calendar days.
(4) In the case of bank transfers, the payment shall be deemed to have been made in good time if the Purchaser’s order for remittance is received by the Purchaser's bank prior to expiry of the payment deadline. The Purchaser shall not be responsible for any delays caused by the banks involved in the payment transaction.
(5) In the case of advance payment, the Purchaser shall be entitled to demand a bank guarantee.
(6) The Purchaser shall not owe any interest on maturity. Any payment arrears shall be subject to the statutory provisions.
(7) The Purchaser shall have off-setting and retention rights, as well as the defence of non-performance of the contract within the scope of the statutory provisions. The Purchaser shall in particular be entitled to withhold any payments due if it still has any outstanding claims against the Seller arising from incomplete or impaired services.
(8) The Seller shall only have off-setting or retention rights based on counterclaims that have been established as being legally valid or that are undisputed.
Art. 7 Confidentiality and reservation of title
(1) The Purchaser retains rights of title and copyright in any illustrations, plans, drawings, calculations, implementation instructions, product descriptions or any other documentation. Such documentation is to be used exclusively to facilitate performance of the contracted services, and returned to the Purchaser once the contract has been fulfilled. The documents are to be kept confidential from third parties, also once the contract has been terminated. The obligation of confidentiality shall only lapse if and in as much as the expertise contained in the documents handed over has become common knowledge.
(2) The above provision shall apply accordingly to substances and materials (e.g. finished and semi-finished goods), as well as to tools, templates, samples and any other items which the Purchaser provides to the Seller for manufacture. Such items are to be stored separately at the Seller’s expense, and insured against destruction and loss to a reasonable extent, until they are being processed.
(3) Any processing, merging or composition (further processing) of items provided by the Seller shall be carried out for the Purchaser. The same shall apply if the goods supplied are further processed by the Purchaser, in as much as the Purchaser is then considered the manufacturer and acquires ownership in the product at the latest upon its further processing of the goods if the statutory regulations so dictate.
(4) Ownership of the goods will be transferred to the Purchaser unconditionally and without regard to payment of the price. Should the Purchaser, however, in any specific case, accept an offer from the Seller to transfer ownership by executing payment of the purchase price, the reservation of ownership on the part of the Seller shall lapse at the latest upon payment of the purchase price for the respective goods. The Purchaser shall, in the ordinary course of business, also remain authorised to sell on the goods prior to payment of the purchase price, subject to prior assignment of the claim arising therefrom (alternatively, the ordinary reservation of ownership extended to any resale shall apply). In any event, all other forms of reservation of ownership shall be excluded, in particular extended or transferred reservation of ownership as well as reservation of ownership extended to the stage of further processing.
Art. 8 Defective delivery
(1) In regard to the Purchaser’s rights in the case of material defects in the goods or defects in title (including erroneous delivery or the delivery of a shortfall in quantity, as well as improper assembly or defective assembly or inaccurate operating instructions or instructions for use), and in the event of any other breaches of duty by the Seller, in so far as nothing to the contrary has been provided for below, the statutory provisions shall apply.
(2) In accordance with the statutory provisions, the Seller shall in particular be liable for the goods having the agreed quality upon the passing of risk to the Purchaser. In any case, such product specifications which are the subject of the respective agreement or have been included in the agreement in the same way as in these GTCPs, shall be deemed to form an agreement with regard to the quality of the goods – in particular if they have been designated or reference has been made to them in the Purchaser’s order. In that regard, it shall not make any difference whether the product specification originates from the Purchaser, the Seller or the manufacturer.
(3) Other than as laid down in Section 442 paragraph (1) sentence 2 German Civil Code (BGB), the Purchaser shall have an unlimited right to claim the goods are defective, even if, as a result of gross negligence, the Purchaser is still unaware of the defect upon conclusion of the agreement.
(4) In regard to the commercial inspection and claim obligations, the statutory regulations (Secs. 377 and 381 German Commercial Code (HGB)) shall apply with the following stipulation: The Purchaser’s obligation to examine the goods shall be limited to defects which are apparent at the time of the incoming goods inspection carried out by the Purchaser, involving an external check which includes the delivery documents (e.g. transportation damage, erroneous deliveries and shortfalls in the quantity delivered) or are recognisable in the context of the quality control checks conducted by the Purchaser on a sampling basis. In so far as acceptance has been agreed, the requirement to inspect the goods shall lapse. Otherwise, taking the circumstances of each individual case into consideration, it shall depend upon the extent to which an inspection is feasible within acceptable business practice.The Purchaser's obligation to give notice of any claims in regard to defects discovered at a later date shall not be affected thereby. Notwithstanding the Purchaser’s obligation to examine the goods, the Purchaser’s complaint (notice of defects) shall, in any event, be deemed immediate and in good time if it is sent within five working days of discovery or, in the case of obvious defects, after delivery.
(5) Subsequent fulfilment shall also include the dismantling of the defective goods and renewed installation, in so far as the goods, as per their nature and intended use, are integrated into or affixed to another item. The Purchaser’s statutory claim to compensation in line with expenditure shall not be affected thereby. The expenditure of the Seller for the purpose of checking the goods and subsequent fulfilment of the agreement shall still be borne by the Seller, even if it transpires that in fact no defect existed. In the event of an unjustified request for a defect to be remedied, the right of the affected party to assert the liability to pay compensation for damage is reserved. The Purchaser shall, however, only be liable if it has recognised - or grossly negligently has not recognised - that no defect existed.
(6) Notwithstanding the Purchaser’s statutory rights and the provisions laid down in paragraph 5 , the following shall apply: Should the Seller fail to comply with its obligation of subsequent fulfilment – the Purchaser may nominate to have the defect remedied (subsequently improved) or replaced by an item free of defects (replacement delivery) – within a reasonable deadline set by the Purchaser, the Purchaser may remedy the defect itself and request compensation from the Seller for the expenditure necessary to do this, or request a corresponding advance in the form of goods, credit or payment. Should the subsequent fulfilment by the Seller fall through or be unacceptable to the Purchaser (e.g. as a result of particular urgency, a risk to operational security or the impending occurrence of disproportionate losses, etc.), no deadline needs to be set. The Purchaser shall notify the Seller of such circumstances without delay - if possible, in advance.
(7) The Purchaser shall, moreover, in the case of a material defect or defect in title, be entitled to reduce the purchase price or withdraw from the contract in line with the statutory provisions. In addition, the Purchaser will have claim to compensation for damage and expenses under the statutory provisions.
Art.9 Supplier recourse
(1) The Purchaser shall be entitled to assert the statutorily established rights of recourse within a supply chain (supplier recourse under Secs. 445a, 445b, 478 German Civil Code (BGB)) without restriction, along with any claims for defects. The Purchaser shall in particular be entitled to require from the Seller exactly the type of subsequent fulfilment (subsequent improvement or a replacement delivery) which it owes to its customers in each individual case. The Purchaser's statutory right of choice (Sec. 439 (1) German Civil Code (BGB)) shall not be limited thereby.
(2) Before the Purchaser recognises or fulfils a claim for defects asserted by its customers (including reimbursement of expenses pursuant to Secs. 445a (1), as well as 439 (2) and (3), German Civil Code (BGB)), it will inform the Seller and, having briefly explained the circumstances, request a written response. Should a substantiated response not be received within a reasonable period of time, and should no amicable solution be found either, the claim for defects actually owned by the Purchaser shall be deemed owed to its customer. In such a case, it shall be up to the Seller to provide evidence to the contrary.
(3) Any claims on the part of the Purchaser based on supplier recourse shall also apply if the defective goods were further processed by the Purchaser or another business, e.g. by being integrated into another product.
Art.10 Manufacturer's liability
(1) Should the Seller be responsible for any product damage, it shall, to that extent, be obliged to indemnify the Purchaser against any damage asserted by third parties, should it be established that the cause lies within its sphere of control and organisation and if it is liable under any third-party relationship.
(2) Within the scope of its indemnification obligation, the Seller shall be required to reimburse any expenses under Secs. 683 and 670 German Civil Code (BGB) which arise as a result of or in connection with the institution of claims made by third parties, including any product recalls undertaken by the Purchaser. In as much as this is possible and reasonable, the Purchaser shall discuss the content and scope of any product recall procedure with the Seller and give the Seller an opportunity to respond. The right to assert further statutory claims shall not be limited thereby.
(3) The Seller shall be required to take out product liability insurance with a flat-rate sum insured of at least €10 million for each case of damage to persons / property and to maintain it.
Art. 11 Statute of limitations
(1) The mutual claims on the part of the contracting parties shall become statute-barred in line with the statutory provisions, unless otherwise stipulated below.
(2) Other than as laid down in Sec. 438 (1)(3) German Civil Code (BGB), the general period of limitation for claims for defects is 3 years as from the passing of risk. In so far as acceptance has been agreed, this shall be pertinent to the commencement of the period of limitiation for claims for defects.The three-year period of limitation shall also apply correspondingly to any claims arising from defects in title, whereby the statutory period of limitation for in rem claims for surrender on the part of third parties (Sec. 438 (1)(1) German Civil Code (BGB)) shall not be affected thereby. Furthermore, claims arising from defects of title shall not in any instance become statute-barred as long as the third party can still assert the right, in particular in the absence of a statute of limitations, against the Purchaser.
(3) The periods of limitation, under the United Nations Convention on Contracts for the International Sale of Goods including the above-mentioned extension, shall apply – within the statutory scope – to all contractual claims for defects. In so far as the Purchaser is entitled, due to a defect, to also assert non-contractual claims for compensation for damage, the usual statutory period of limitation shall apply (Secs. 195 and 199 German Civil Code (BGB)) unless the application of the periods of limitation (under the UN Sales Convention) leads to a longer period of limitation in any specific case.
Art.12 Choice of law and place of jurisdiction
(1) These General Terms and Conditions of Purchase shall be governed exclusively by the laws of the Federal Republic of Germany, with the exception of the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the Seller is a qualified merchant, a legal person under public law or a special fund governed by public law, the exclusive place of jurisdiction for disputes arising from any contractual relationships between the Purchaser and the Seller shall be the Purchaser’s place of business. The same shall apply if the Seller is a qualified merchant within the meaning of Sec. 14 German Civil Code (BGB).
(3) The Seller shall, however, in all cases, also be entitled to sue the Purchaser at the place of fulfilment of the delivery obligation, in line with these GTCP or any prior-ranking individual agreement, or at the general place of jurisdiction of the Purchaser. Prior-ranking statutory provisions, in particular in regard to exclusive jurisdictions, shall not be affected thereby.