Art. 1 Scope of validity, form
Art. 1 Scope of validity, form
(1) The present General Terms and Conditions of Purchase (hereinafter referred to as “GTCP”) shall apply to all business relations of markilux GmbH + Co. KG, Hansestrasse 53, D - 48282 Emsdetten (hereinafter referred to as “Purchaser”) with our business partners and suppliers (hereinafter referred to as “Sellers”). The GTCPs shall only apply if the Seller 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 GTCPs shall in particular apply to any agreements on the sale and/or supply of movable goods (“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 GTCPs shall apply as amended as at the date of the Purchaser’s order, or, in any event, in the form of the version last notified to the Purchaser in text form, as a general contract that will also apply to similar future agreements, without the Seller having to make reference to them again in each individual case.
(3) These GTCPs 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 - and only in so far as - the Purchaser has expressly agreed to their validity in writing. This consent requirement shall apply in every case, for example even if the Purchaser accepts the Seller’s deliveries without reservation in awareness of the Seller’s General Terms and Conditions of Business.
(4) Any provisions agreed with the Seller in the individual case (including any subsidiary agreements, additions and amendments) shall, in any case, take precedence over these GTCPs. Subject to anything being proven to the contrary, a written contract or the Purchaser’s written confirmation shall be pertinent in regard to the content of such agreements.
(5) Any legally significant declarations and notices of the Seller in regard to the agreement (e.g. setting a deadline, a warning letter, withdrawal from the agreement) are to be submitted in writing, i.e. in written or text form (e.g. letter, e-mail, telefax). Any statutory formal requirements and further evidence, in particular in cases of doubt concerning the proof of identity or capacity to act 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 or explicitly excluded in these GTCPs.
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 computational 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 agreement 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 a new offer, and shall require acceptance by the Purchaser.
§3 Delivery time and delay in delivery
(1) The delivery time 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 delivery times - for whatever reason.
(2) Should the Seller fail to provide its services, or fail to provide them within the agreed delivery time, or should it fall behind in providing the services (default), the Purchaser’s rights– in particular in regard to withdrawal from the agreement 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 statutory claims - demand flat-rate compensation of the damage caused by delay incurred to it 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. It shall be up to the Purchaser to prove that greater damage has been incurred. It shall be up to the Seller to prove that no damage whatsoever has been incurred, or only considerably lesser damage.
§4 Performance, delivery, passing of risk, delay in acceptance
(1) The Seller shall not be entitled, without the Purchaser’s prior written consent, to have the services owed by it provided by third parties (e.g. by sub-contractors). The Seller shall bear the procurement risk for its services, unless anything to the contrary has been agreed in the individual 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 placed with the delivery, giving details of the date (of issue and shipping), the content of the delivery (item 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 from the latter. 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 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.
(5) The Seller shall be required to carry out quality assurance on its deliveries, suitable in regard to the nature and scope, and corresponding to the state of the art.
(6) In regard to measurements, quantities and quality, the values obtained by the Purchaser when conducting the incoming goods inspection and quality check shall be pertinent.
(7) Any costs incurred to the Purchaser due to the Seller failing to comply with the shipping regulations are to be borne by the Seller. The same shall apply to any additional costs of expedited transport required, incurred through circumstances that are the fault of the Seller. The Purchaser does not recognise 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 equipment 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. The Seller shall be required to hand over to the Purchaser a written declaration of conformity, upon request. 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 violation of the RoHS Directive or other applicable environmental regulations, for which the Seller is at fault.
(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“) above 0.1 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. To the extent that an acceptance has been agreed, this shall be pertinent for the passing of risk. Moreover, should the goods be formally accepted the statutory provisions of the law on contracts for work and services shall apply accordingly. The handing over or acceptance shall still be deemed to have taken place if the Purchaser is in default with acceptance.
(15) The statutory provisions shall apply to the occurrence of any delay in acceptance on the part of the Purchaser. The Seller must, however, also expressly offer the Purchaser its services if a particular or certain calendar date has been agreed for any action or co-operative involvement on the part of the Purchaser (e.g. the provision of material).
(16)Should the Purchaser fall into arrears with acceptance, the Seller may request compensation for the extra expense incurred to it, 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 (individual manufacture), the Seller shall only be entitled to assert any further rights if the Purchaser undertakes to co-operate and is then at fault for failing to co-operate.
Art. 5 Prices and terms of payment
(1) The price specified in the order shall be binding. All prices are quoted inclusive of the statutory VAT unless the latter has been shown separately.
(2) In so far as nothing to the contrary has been agreed in the individual 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, transport costs, including any transport and third-party liability insurance).
(3) Should prices according to weight have been agreed, the net weight ascertained by the Purchaser shall apply, for the calculation.
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% cash 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 require a bank guarantee.
(6) The Purchaser shall not owe any default interest. Any payment arrears which may occur shall be subject to the pertinent statutory provisions.
(7) The Purchaser shall have the right of offsetting and retention, as well as the defence of the agreement not having been fulfilled, in the statutory scope. The Purchaser shall in particular be entitled to retain any payments due if it still has any outstanding claims against the Seller arising from incomplete or defective services.
(8) The Seller shall only have a right of offsetting or retention based on counterclaims that have been established as being legally valid or that are undisputed.
Art.6 Confidentiality and reservation of ownership
(1) The Purchaser reserves the rights of ownership and copyrights in any illustrations, plans, drawings, calculations, instructions for implementation, product descriptions or any other documentation. Such documentation is exclusively to be used for the contractual services, and returned to the Purchaser once the agreement has been fulfilled. The documents are to be kept confidential from third parties, also once the agreement has been terminated. The confidentiality obligation shall only lapse to the extent that the expertise contained in the documents handed over has become generally known.
(2) The above provision shall apply accordingly to substances and materials (e.g. finished and semi-finished products), as well as to tools, templates, samples and any other items with which the Purchaser provides 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, as long as they are not processed.
(3) Any processing, mixing or connection (processing on) of items provided by the Seller shall be done for the Purchaser. The same shall apply if the goods supplied are processed on by the Purchaser, so that the Purchaser is considered the manufacturer and acquires ownership in the product at the latest upon processing the goods on in accordance with the statutory regulations.
(4) The goods will be transferred to the Purchaser unconditionally and without regard to payment of the price. Should the Purchaser, however, accept an offer from the Seller to transfer ownership, 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.7 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 improper 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 respective agreement, or have been included in the agreement in the same way as in these GTCPs, shall be deemed an agreement regarding 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 Sec. 442(1) sentence 2 German Civil Code (BGB), the Purchaser shall have an unlimited right to claim defects, even in cases where the Purchaser is still unaware of the defect after concluding the agreement due to gross negligence.
(4) In regard to the commercial inspection and reporting obligations, the statutory regulations (Secs. 377 and 381 German Commercial Code (HGB)) shall apply: The Purchaser’s obligation to examine the goods shall be limited to defects which are obvious at the time of the incoming goods inspection carried out by the Purchaser, involving an external check, including the delivery documents (e.g. damage in transit, erroneous deliveries and shortfalls in the quantity delivered), or are recognisable in the context of the quality control conducted by the Purchaser on a sampling basis. To the extent that an official acceptance has been agreed, no inspection obligation shall exist. Otherwise, it shall depend upon to what extent an inspection, taking into consideration the circumstances of the individual case, is appropriate in the ordinary course of business. The requirement to give notice of defects in regard to defects discovered later 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 installed inside another item or affixed to another item. The Purchaser’s statutory claim to compensation in line with expenditure shall not be affected thereby. The costs expended by the Seller for the purpose of checking and carrying out subsequent improvements to goods shall also 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 – at the Purchaser’s option by either remedying the defect (subsequent improvement) or supplying 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 for the necessary expenditure for it from the Seller, or request a corresponding deposit. Should the subsequent fulfilment by the Seller fail, or be unacceptable to the Purchaser (e.g. due to 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 a claim to compensation for damage and expenses under the statutory provisions.
Art.8 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 the 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 the individual case. The statutory option of the Purchaser (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 request a written response, briefly explaining the circumstances. Should a substantiated response not be received within a reasonable period of time, and should no amicable solution be brought about either, the claim for defects actually conceded 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 processed on by the Purchaser or another trader, e.g. through being installed inside another product.
Art.9 Manufacturer's liability
(1) Should the Seller be responsible for product damage, it shall, to that extent, be obliged to indemnify the Purchaser against any damage asserted by third parties, should the cause be established to be found within its sphere of control and organisation and if it itself is liable under any third-party relationships.
(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 having to resort to claiming from third parties, including any product recalls undertaken by the Purchaser. The Purchaser shall – to the extent possible and reasonable - discuss the content and scope of the product recall procedures to be implemented with the Seller in advance and give the Seller an opportunity to respond. The right to assert any further statutory claims is reserved.
(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 maintain it.
Art. 10 Statute of limitations
(1) The mutual claims on the part of the contracting parties shall become statute-barred in line with the statutory provisions, in so far as nothing to the contrary is provided for 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. To the extent that an official acceptance has been agreed, the period of limitation shall commence upon acceptance. The three-year period of limitation shall accordingly also apply to any claims arising from defects in title, in regard to which the statutory period of limitation for in rem claims on the part of third parties for goods to be handed over (Sec. 438 (1)(1) German Civil Code (BGB)) shall not be affected thereby. Any claims arising from defects in title shall, furthermore, not become statute-barred at all for as long as the third party can continue to assert the corresponding right against the Purchaser – in particular due it not having become statute-barred yet.
(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 (cf. Secs. 195 and 199 German Civil Code (BGB)) unless the application of the periods of limitation under the UN Sales Convention leads to longer periods of limitation in the individual case.
Art.11 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall govern these GTCPs and the contractual relationship, subject to exclusion of the international conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the Customer is a trader, a legal person under public law or a special fund governed by public law, the exclusive place of jurisdiction for any disputes arising from 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 trader within the meaning of Sec. 14 German Civil Code (BGB).
(3) The Purchaser shall, however, in all cases, also be entitled to sue at the place of fulfilment of the delivery obligation, in line with these GTCPs or any prior-ranking individual agreement, or at the general place of jurisdiction of the Seller. Prior-ranking statutory provisions, in particular in regard to exclusive jurisdictions, shall not be affected thereby.