All sales including subsequent orders and contracts of sale concluded on that basis as well as all sales during the initiation of business prior to placing an order shall be subject to these terms of sale. By placing an order Buyer / Customer acknowledges our general terms and conditions. Upon receipt of our terms an interested party acknowledges our terms. These terms shall be legally binding. An interested party’s terms shall have no legally binding effect. Terms conflicting with these terms of sale as well as verbal supplemental agreements shall be confirmed by us in writing. DIN/EN details refer to the current version of these measurement / quality standards. Modifying individual provisions shall not affect the remaining provisions.
Our offers shall be free and not binding upon us. An order is deemed to have been accepted, if confirmed by us in writing even if an order is received by a representative. We shall be free to accept Customer’s contractual offer or we may refuse to conclude a contract until confirmation of an incoming order.
Following the conclusion of a contract Customer’s cancellation of an order shall generally be excluded.
Prices confirmed by us in writing until the delivery date are deemed agreed unless there is a fixed price.
Due to the very dynamic development of the prices of steel, consumables and transport caused by the pandemic our suppliers currently only quote daily prices or weekly prices. Please note that in view of the unfolding dynamics our offer is non-binding / free and that we will be bound by the prices quoted in our offer and/or our written confirmation of order only until the date specified in our written confirmation.
If after concluding a contract prices, freight rates, taxes or other charges are introduced or increased, we shall be entitled to retroactively add them to the agreed purchase price. Otherwise prices are quoted in Euro ex works for unpacked materials. In the event that after conclusion of a contract the net purchase price of contractual materials payable by a contractor rises by more than 20 percent upon delivery thereof, both parties shall be entitled to request the other party to enter into additional negotiations in order to ensure a reasonable adjustment of contractually agreed prices of the contractual materials to the current delivery prices on the basis of an agreement.
4. Terms of payment
a) Unless otherwise provided for our invoices shall be settled in cash without deduction and/or by bank transfer within 8 days after delivery, with the obligation to pay being fulfilled if the payment amount is credited to our account. If we inform Customer in writing or in textual form that goods are ready for dispatch this is deemed equivalent with delivery. We shall be entitled to count incoming payments (also by using security or credit notes to be issued by us) at our sole discretion towards Buyer’s existing obligations (if any) despite Buyer’s conflicting payment notes.
b) Buyer shall not exercise any rights of retention due to counterclaims. Setting off against claims other than undisputed or legally established claims shall be excluded. Customer shall not assert any claims arising from a current account or a current relationship in terms of Section 355 et. seq., German Commercial Code.
c) In case of a default in payment all claims including deferred claims shall be due immediately. Default interest shall be subject to the respective statutory provisions. Dunning charges amounting to EUR 20.00 per dunning letter (extra work) shall be charged.
d) In case of failure to comply with the terms of payment we reserve the right to exercise a right of retention concerning our contractual obligations.
5. Reservation of title
a) Goods shall be delivered subject to a reservation of title pursuant to Section 455, German Civil Code, including the following additions.
b) Goods delivered by us shall remain our property until the satisfaction of all claims (including future claims) against Buyer arising from the business relationship with us. This provision shall apply even if the purchase price for certain deliveries is paid. In case of running accounts such reservation of title shall be regarded as security for our balance claim.
c) As long as our claim exists we shall be entitled to request Customer to provide information which goods delivered subject to a reservation of title are still held by Customer and where such goods are situated. We shall be entitled to inspect goods belonging to us at the place where they are situated. If we assert our claim for surrender Customer shall acknowledge such claim without lodging any objections and shall provide access to the business premises and the storage area for the purpose of enforcing our claim for surrender.
d) Customer shall bear the risk of the goods delivered by us subject to reservation of title. Customer shall be obligated to store the goods carefully and adequately insure them against loss (theft, fire, etc.). In the event a loss occurs Customer shall assign its claim against an insurance company to us. This provision shall apply if a loss is not covered in full by an insurance so a proportional compensation can be paid to us.
e) Customer shall process goods on behalf of us without any obligations having to be fulfilled by us. Processed goods shall be equal to the value of the conditional commodity. If Customer processes it with other goods not belonging to us we shall have a co-ownership right in this new object in proportion of the value of the conditional commodity to the other processed goods. Otherwise the provisions applying to conditional commodity shall apply, too. It is deemed to be conditional commodity in terms of these provisions and shall be kept by Customer exercising the due diligence of a prudent businessman. As regards a combination or mixing of conditional commodity aforementioned provision on processing shall apply mutatis mutandis.
f) Customer shall be entitled to sell the goods delivered in the ordinary course of business subject to a reservation of title. Pledging or transferring ownership shall be prohibited. Prior to an attachment or another impairment of our rights by third parties Customer shall forthwith notify us in writing or in textual form.
g) Customer’s claims arising from a further delivery of conditional commodity including all ancillary rights shall be assigned to us subject to the provisions of the following section irrespective of whether conditional commodity is delivered without or after being processed, combined or mixed, whether it is delivered separately or together with other objects, whether it is shipped in one delivery or as part deliveries to one customer or whether it is delivered to several customers. A portion of the mutually agreed (i.e. between us and Customer) purchase price of the conditional commodity delivered by Customer to its buyer due to an obligation arising from the further delivery of a conditional commodity, with such portion forming part of Customer’s total claim is deemed to be assigned. Such assignment the sum of which is limited shall apply irrespective of whether or when Customer has satisfied its purchase price claim for the conditional commodity in full or in part. Claims assigned to us are intended to hedge our claims (including future claims) against Customer arising from the business relationship with us. Par. b) shall apply mutatis mutandis. Upon request Customer shall notify third party purchasers of such assignment and provide us with any information and documents needed to enforce our rights towards third party purchasers. Customer shall be allowed to collect all claims assigned and use the proceeds as long as Customer duly meets its payment obligations. In case of part payments by third party purchasers an assignment to us shall continue to exist until full payment of the claim.
h) We undertake to release the security due to us as referred to hereinbefore at our sole discretion if the value thereof exceeds the claims to be secured by 20%.
6. Delivery periods / scope of delivery
a) Delivery periods shall only be binding if specified in writing or in textual form. The clarification of Customer’s desired design details shall be prerequisite for a binding promise. A delivery period is deemed to have been observed if we inform Customer that the goods are ready for dispatch. Notwithstanding our rights arising from Customer’s default promised delivery periods shall be extended by the period during which Customer is in default of its obligations under this contract or another contract. If we are in default Customer shall grant a reasonable time limit. Customer shall rescind the part of the contract that has not yet been performed unless the goods are ready for dispatch until expiration of the time limit. Customer shall not refuse part deliveries.
b) Our obligation to deliver shall be subject to a correct and timely self-delivery (and in case of imports subject to the receipt of monitoring documents and import authorizations provided that such papers are required for such import) unless we are at fault for a delivery not effected correctly or in a timely manner. We shall be entitled to rescind the contract if despite previously concluded purchase contracts and acting with the due diligence of a prudent businessman we do not receive a delivery item. We shall forthwith notify Customer that a delivery item will not be available in time and shall forthwith exercise the right of rescission for that reason. Following our information Customer, too, shall be entitled to rescind the contract. If the contract is rescinded by a party we shall forthwith refund the consideration.
c) If special tools are specified in an order, the quantity ordered may be exceeded / fall short of by 10% or by max. 2 pieces. The quantity actually delivered will be charged. Special tools means tools produced upon express request of Customer and which are not part of our line of products.
7. Shipment and passing of risk
a) Goods shall be shipped for Buyer’s account. The risk shall pass to Buyer upon transferring the goods to a forwarder or carrier but upon leaving the factory at the latest. We reserve the right to transport goods in open or closed vehicles. Loading tackles (dunnage, frames, covers, etc.) shall be used at Customer’s risk subject to a special lending fee or a compensation for the costs incurred by us; in case of lending loading tackles shall be returned at Buyer’s risk and expense. We shall not be liable for any damage during the delivery process. A transport insurance shall only be effected upon Buyer’s express request; transport insurance costs shall be borne by Buyer.
b) If goods we reported to Buyer that they are ready for shipment are not immediately disposed of or if shipment cannot be effected due to circumstances beyond our control we shall be entitled to store them outdoors and shall not assume any liability for corrosion or damage. Buyer shall bear all principal costs and incidental costs incurred due to a belated collection or provision of means of transport. Buyer undertakes to collect goods ordered and ready for shipment on our premises within 3 days at the latest. If goods ordered and ready for shipment are not collected, we reserve the right to debit storage costs to Buyer’s account. Storage costs amounting to EUR 500.00 plus VAT a day shall be agreed upon.
c) Inadmissible export: If upon Customer’s request we are required to deliver goods directly to a foreign country, Buyer shall be liable for all taxes, customs duties, etc. We do not check deliverability in a recipient country. We, therefore, shall not assume any liability in this respect.
d) In the event that we use a carrier (parcel service, airline) or a forwarder, we shall not be liable for any delays in deliveries effected by a carrier or a forwarder. Claims for damages due to a delayed delivery by a carrier or forwarder shall be excluded. In case of a delayed delivery Customer shall not be entitled to a compensation for freight costs we debit to Customer’s account.
8. Act of God
In case of an Act of God we shall be released from our obligation to deliver. Act of God means an external event such as a pandemic and its impacts on the delivery chain, accidents, natural disasters, strike, war and civil commotion, traffic disruptions, interruption of operations and delays in the delivery of raw materials to be processed (e.g. steel) and similar events, with such events not being linked to operational activities and being unpreventable even when exercising utmost diligence. In view of the ongoing pandemic we and Customer expect a permanent impredictability of events. Customer’s claims for damages due to our nonobservance of promised delivery dates in connection with events classified as Act of God shall be excluded. Such exclusion of liability shall only apply to the period of an event classified as Act of Good. If delivery is possible, a delivery period shall be reasonably extended if one of aforementioned conditions exists. If Customer does not know the circumstances preventing a fulfilment of an obligation we shall only invoke such circumstances if Customer is notified without delay.
9. Notice of defects and warranty claims
a) Notices of defects of any kind shall be given to us (not to representative) in writing or in textual form within 3 days upon receipt (receipt by Customer or at the place designated by Customer) including a detailed description of the individual defects claimed. Defects that cannot be detected even in case of a careful examination within the time limit shall be complained about right after detection and processing shall be stopped. Warranty claims shall become statute-barred within one year after delivery of the goods ordered at the latest.
b) If a notice of defects is given in good time and accepted by us, we shall take back the goods if in the state of delivery and we shall replace them by faultless goods free of charge. We shall be entitled to refund the purchase price in lieu of a replacement delivery. Additional claims such as costs of reworking and wages not approved by us as well as freight costs, delay penalties, replacement of direct damage, etc. shall be excluded.
c) As long as the goods are held by Customer irrespective of whether under a contract of sale, a safekeeping contract or any other contract Customer shall bear the risk of loss of the goods.
10. Exclusion of liability
a) We shall be liable in case of intent or gross negligence on the part of a representative or a vicarious agent or a culpably caused damage to life or health as provided for by law. As for the rest, we shall only assume liability under the Product Liability Act for a culpable breach of essential contractual obligations or if we fraudulently conceal a defect or if we assume a warranty for the properties of a delivery item. The claim for damages arising from a culpable breach of essential contractual obligations shall, however, be limited to the foreseeable damage typical of the contract unless otherwise provided for in sentence 1 or sentence 2.
b) The provisions of par. a) shall apply to all claims for damages (damages in addition to performance and damages in lieu of performance, in particular) for whatever cause in law, particularly due to defects, a violation of duties arising from the contractual obligations or tort. They shall also include a claim for a compensation for wasted expenses.
c) Aforementioned provisions shall not imply a change in the burden of proof to the detriment of Buyer.
11. Properties of processed and delivered products
We supply steel products. The property of steel depends on numerous factors. We make an incoming goods inspection upon receipt of the steel to be processed. However, we can only guarantee a random check of the materials supplied. We check the mechanical and chemical properties of the material supplied. As we cannot provide any grinding patters the structure of the steel supplied cannot be fully determined. Supplied steel cannot be warranted to be usable for processing. All DIN/EN standards for the processing of steel are complied with.
12. Obligation of secrecy / confidentiality obligation
a) During the parties’ cooperation we will disclose information to Customer for the purpose of cooperation, offers and orders. Such information are private and shall, therefore, be treated as confidential. Cooperation shall start upon sending confidential information to wit prior to placing an order confirmed by us. The ensuing obligation shall start to run if we evidently provide confidential information such as price lists to an interested party.
b) “Confidential information” in this respect means all information made accessible verbally, in writing or electronically including, above all, presentations, price lists, corporate concepts and business models, business data and planning data, construction plans, trade secrets as well as resultant findings and results and know-how exchanged. If documents or other data media constitute information referring to us it is irrelevant whether they were created by us, Customer or a third party.
c) “Entitled persons” means Customer and/or an interested party receiving information, its bodies and employees. Entitled persons also include Customers’ / an interested party’s consultants required to maintain professional or contractual secrecy. “Employees” means Customer’s and/or an interested party’s employees as well as employees not holding the status of an employee such as freelancers and temporary workers.
d) Customer or an interested party undertakes to treat all confidential information it directly or indirectly gains knowledge of as strictly confidential and not to disclose them or otherwise make them accessible to third parties not being entitled persons without our prior written approval. Customer or an interested party undertakes to take adequate precautions to protect confidential information. Confidential information shall only be disclosed to entitled persons who are required to receive them in order to achieve the purpose of this contract. Customer or an interested party shall see to it that all entitled persons in its sphere receiving confidential information have been informed about both content and extent of such obligation and that they observe the provisions of this contract.
e) If after termination of cooperation or if an order confirmed by us does not materialise Customer or an interested party shall upon request at our sole discretion return, destroy or delete all documents constituting confidential information. Corresponding evidence thereof shall be produced.
f) Customer or an interested party undertakes to pay a contractual penalty of up to EUR 5,001.00 (in words: five thousand and one Euro) for each culpable violation of the obligation of confidentiality under this contract. Paying such contractual penalty does not preclude the enforcement of an injunctive relief or an additional claim for damages. Customer or an interested party shall be liable for its employees in terms of par. 12 c) hereof.
g) Such obligation to be fulfilled by Customer or an interested party shall take effect upon establishing a cooperation with us to wit the transmittal of confidential information at the earliest and an order placed by Customer at the latest; in the event of a permanent cooperation in terms of recurrent orders such obligation shall be in force over the entire period of such cooperation even if there is a period of 12 months between such recurrent orders.
13. Copyright of entrusted illustrations
a) Customer shall be allowed to solely use catalogue data, product photos, brand logos and other data for advertising until such approval is withdrawn. Customer acknowledges that aforementioned rights of use transferred to it are exclusively held by us and that they shall be used for advertising until such approval is withdrawn.
b) Customer undertakes to use data received solely for advertising our products. If Customer advertises our cooperation Customer shall use the rights transferred.
c) Customer undertakes not to change or alienate any illustration or advertisement of our products, trademarks or catalogues (see 13 a) without our express prior approval in writing or in textual form. Product photos transmitted shall only be used in connection with the trademark “Völkel” and/or “V-Coil”. Products received from us shall only be presented by referring to our trademark. Transmitting such data to third parties shall be prohibited.
d) Any modification or alienation of the trademark shall be prohibited. Trademarks shown shall only be in black or white and the dots being part of the trademark shall be in cyan. Using other colours for the trademarks shall be prohibited.
e) Based on this contract Customer undertakes to pay a contractual penalty of EUR 5,100.00 for each violation of such obligation. A plea of connection with any previous act of contravention shall be excluded. We reserve the right to prove and claim a higher damage.
f) A use of catalogue data, product photos, trademark logos and other data may be suspended by us without giving any reasons. Such suspension shall be in writing or in textual form. Upon receipt of such objection Customer shall stop using catalogue data, product photos, trademark logos and other data within a period of two weeks. To the extent catalogue data have been distributed Customer undertakes not to send them to customers any longer after the expiration of two weeks.
g) Customer undertakes to fully return the data and objects referred to in par. 13 a upon expiration of the period of use (par. 13 f) without being asked or destroy them upon Völkel’s request.
14. Privacy / consent to receipt of newsletter and additional product information
a) Pursuant to the Federal Data Protection Act and the General Data Protection Regulation we process and store Customer’s personal data for the purpose of achieving business purposes and objectives. Customer is herewith informed about the first-time storage of its personal data.
b) Customer undertakes to comply with and implement the provisions of the Federal Data Protection Act and the General Data Protection Regulation. Customer also expressly consents to the processing of its personal data by us.
c) We undertake to use, process, publish, make accessible or otherwise use personal data solely for the purpose of performance and store them only for the purpose of fulfilling statutory retention obligations. Unless Customer is statutorily required to disclose personal data disclosing personal data shall require Customer’s prior written consent that is given herewith. Processing is required to perform a contract the data subject is a party to or perform pre-contractual activities as requested by the data subject. We shall make sure that all persons involved were trained in data protection and they shall be required to observe data secrecy in terms of Section 5, Federal Data Protection Act, and they shall not collect, process or use personal data unauthorisedly during or after their activities. We shall see to it with due care that all persons dealing with and executing orders comply with all statutory data protection provisions of the Federal Data Protection Act.
d) Data protection obligations under this contract shall survive the termination of existing and established business relations.
e) Customer undertakes to treat all information about products to be delivered by us provided in the course of our cooperation as our business secret in terms of the Business Secret Protection Act. This includes, among others, construction plans, drawings, advertising, technical details, documents and notes Customer is required to return to us and/or not to disclose them to third parties.
f) If Customer wants to advertise that it manufactures products for us, our express approval shall be required.
g) Customer agrees to receive our e-mail newsletter and information about our products.
15. Place of fulfilment and venue
a) Place of fulfilment for both parties shall be our registered office. Venue shall be Remscheid. We shall also be entitled to sue Customer in any other jurisdiction. The laws of the Federal Republic of Germany shall be agreed upon. The United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
b) If a provision of these terms or the delivery contract is or becomes invalid, this shall not affect the validity of the remaining provisions. Such invalid provision shall be reinterpreted in a way that the intended legal and economic purpose is achieved. This provision shall apply mutatis mutandis, if there is a gap that needs to be filled. The parties undertake to immediately add legally effective agreements to such invalid provision or close such gap.
c) Due to the size of our company, we are not subject to the legal requirements of the Supply Chain Due Diligence Act. We fulfill the objectives of this law to the extent possible for us, but we can only partially fulfill any information obligations in the course of the legal reporting obligations of the contractual partner subject to the law towards contractual partners who are subject to the aforementioned law and therefore exclude any information obligations regarding these contractual partners in this context.
GENERAL TERMS OF PURCHASE
Last updated on 6th July 2022
applicable to companies establishing a supply relationship with Völkel GmbH
Unless otherwise provided for in writing our orders shall be subject to the following terms. Supplier’s terms shall only be applicable, if expressly approved by us. Lacking an express written approval they shall not form part of the contract even if referred to upon acceptance of an order. This provision shall apply mutatis mutandis, if we receive ordered goods in full or in part or if we effect payments. Execution of an order by Supplier constitutes an acceptance of the following terms even if there is no written confirmation. These terms shall apply to all future transactions entered into with Supplier and exclusively to merchants.
Offers submitted shall be binding and free.
2. Orders, conclusion of contract
a) Our orders and other contract declarations shall only be binding if made or confirmed in writing. Such confirmation may also be in textual form.
b) Supplier shall confirm our order in writing within 5 working days. A confirmation received after expiration of such period is deemed to be a new binding offer.
a) Prices shall be fixed prices unless a price escalation clause or prices subject to special terms of agreement are expressly confirmed by us. Executing orders at prices exceeding those quoted by us shall require our approval in writing and/or in textual form.
b) Prices shall be free our place of business including packaging costs and freight costs. If other provisions are agreed, we will only bear the lower freight costs. Costs incurred until transfer to carrier shall be borne by Supplier. We reserve the right to accept excess deliveries or short deliveries.
4. Invoice and payment
a) Invoices shall not be included in a shipment but shall be made out for each delivery and each order including value-added tax, our order number and the order date. If reverse charge is applied, Supplier undertakes to disclose its VAT identification number.
b) Payment shall be made net within 14 days (3% discount) using the means of payment selected by us or within 30/60/90 days net. The term of payment agreed with Supplier and confirmed by us in writing shall apply.
c) Payment periods generally start upon receipt of an invoice but not before goods are received by us or before services are provided.
d) Cash on delivery or advance payments are refused.
e) Our payments shall be effected subject to correction in case of subsequent complaints. In the event of a warranty defect we shall be entitled to refuse payment until a proper remedy (right of retention).
5. Assignment, offsetting
a) Supplier shall not be entitled to assign its claims against us or cause third parties to collect same without our prior written approval which shall not be unduly withheld. If contrary to sentence 1 Supplier asserts a claim against us to a third party without our approval, such assignment shall nonetheless be effective. However, we may at our sole discretion effect performance vis-à-vis Supplier or a third party with discharging effect.
b) Supplier shall only be entitled to set off claims acknowledged or legally established by us or claim a right of retention on grounds of such claims.
6. Delivery item
a) Content, type and extent of a delivery and a service shall exclusively be subject to our order. We shall be entitled to demand a modified performance and or corrections of obvious spelling or calculation mistakes and other errors at any time.
b) Drawings, descriptions, etc. forming part of an order shall be binding upon Supplier. However, Supplier shall check same for inconsistencies and forthwith notify us of discovered or presumed errors in writing or in textual form. Supplier shall be responsible for its drawings, plans and calculations even if same are approved by us.
c) To the extent an order includes additional requirements all delivery items shall be delivered in good merchantable quality and in compliance with DIN standards or equivalent standards (if any). Delivery items shall be produced and equipped in a way that they comply with all applicable safety regulations and ergonomic findings at the delivery date.
d) Upon delivery of the delivery items at the latest Supplier shall provide the following export control details: - country of origin - customs tariff number (statistical commodity code) - export list number (AL number) - Export Control Classification Number (ECCN)
The following additional documents shall be provided at our request: - long-term Supplier declaration / Supplier declaration with preferential originating status - certificate of origin / chamber of commerce declaration for non-preferential origin
e) If weight needs to be determined incoming weight determined by us using our company scales shall be decisive. If we cannot weigh any items the net weights determined by the railway company as evidenced by the consignment note or, in case of a delivery by truck, the net weights determined using public scales or, in case of a transport by ship, the net weights determined at the port of discharge shall be decisive.
7. Provision, means of production
a) Items provided by us shall be processed properly as instructed by us and shall remain our property at each production stage. When processing them with other items not belonging to us we shall be entitled to a co-ownership in the new item in proportion of the value of our order to the total of all items used for production including Supplier’s expenses incurred in connection with the production thereof. Insofar Supplier shall keep the items for us free of charge. This provision shall apply mutatis mutandis, if our title is extinguished by mixing or combining. We shall be notified of a legal or actual impairment of items provided without delay.
b) Supplier shall be liable for a loss or damage to items provided. The value of the tools to be processed that do not have to be reworked by Supplier shall be charged to Supplier; additional costs of reworking shall not be charged. If reworking of tools provided by us is commissioned, we shall not be required to pay any compensation for poor work performance due to subcontracting. In case of accidental loss or accidental damage to items provided Supplier shall not be entitled to a compensation for its expenses incurred in connection with the processing of these items.
c) Means of production such as models, specimens, tools, gauges, moulds, devices, drawings, data sheets, etc., provided to Supplier (also in textual form) or produced by Supplier or by third parties for Supplier shall not be sold, pledged, transferred in any way whatsoever to third parties or used or copied for third parties without our written approval. This provision shall apply mutatis mutandis to items manufactured using these means of production; they shall exclusively be delivered to us unless another use is agreed in writing. Following the execution of an order means of production shall be returned to us in proper condition without delay.
d) Tools, moulds, devices, patterns, films, drawings, engravings, models, specimens, data sheets, etc. (also electronic versions) provided or ordered by us shall remain our property or shall become our property upon acquisition or production; a transfer shall be replaced in a way that Supplier shall keep items for us. Items shall be identifiable as our property, treated carefully, repaired and adequately insured. Section 690, German Civil Code (liability for gratuitous safekeeping) shall be inapplicable. Title to items involves our right to give items to third parties for production. This provision shall apply in case of Supplier’s difficulties in production. If we call upon Supplier to return items, Supplier shall immediately do so without exercising a right of retention. Notwithstanding that we are prepared to allow Supplier to hold items as long as deliveries are effected by Supplier as ordered and, in particular, in time and at competitive prices.
e) If Supplier infringes the provisions of par. c and d, we shall be entitled without prejudice to other rights to rescind the contract in full or in part or claim damages in lieu of performance or a compensation for expenses incurred.
f) To the extent moulds, dies and other tools are given to a party carrying out the work these items shall be our property. A right of retention to these items shall be excluded.
a) We shall be entitled to rescind the contract in full or in part without compensation if Supplier’s creditworthiness or ability to deliver has deteriorated in a way that in our opinion a performance of the contract is at risk, if Supplier stops payment or contractually agreed deliveries in full or in part, if insolvency proceedings are instituted against its assets or if the institution of insolvency proceedings is refused for lack of funds.
b) If, due to circumstances beyond our control (Act of God, in particular), we are prevented from fulfilling our contractual obligations or if it is significantly more difficult for us to fulfil same, we may rescind the contract in full or in part or demand subsequent performance without any claims being due to Supplier in this respect.
9. Delivery date
a) Delivery dates or delivery periods agreed shall be binding, if such delivery dates are confirmed by us in writing or in textual form or if Supplier confirms delivery dates or delivery periods to us in writing or in textual form.
b) If delivery promises involve Supplier’s cooperation (e.g. customs) and if recipient fails to cooperate, delivery periods shall be extended by the period of Supplier’s failure to cooperate.
c) If it becomes apparent that a delivery period is exceeded, Supplier shall forthwith inform us about the reason and the expected period in writing or in textual form.
d) Exceeding a delivery date or a delivery period shall entail the statutory consequences of default unless exceeding a delivery date or a delivery period is evidently attributable to an Act of God in the sphere of Supplier (e.g. labour disputes). Supplier shall make good the damage caused by delay (e.g. margin we cannot attain due to goods not delivered). Accepting belated deliveries does not imply any waiver of claims for damages against Supplier. When exceeding a delivery date or a delivery period we shall be entitled to rescind the contract after a reasonable time limit. In addition to a rescission we shall be entitled to claim damages in lieu of performance or a compensation for expenses unless Supplier proves that it is not responsible for exceeding the delivery date or the delivery period. In the course of a permanent supply relationship we shall be entitled to exercise a right of retention to purchase price payments of goods already supplied. The value of a retained claim for payment of a purchase price shall be equal to the value of the goods in respect of which Supplier is in default of delivery.
e) In the event that Supplier fails to comply with promised delivery dates a contractual penalty shall be due to us in a way that for each day by which the time limit is exceeded we shall be entitled to claim 0.1% of the net value of Supplier’s delayed delivery. Such contractual penalty shall be limited to 10% of the net value of a delivery delayed by Supplier.
10. Packaging, shipment, acceptance
a) If it is required or usual to package a delivery item, Supplier shall ensure adequate packaging at its expense. Our packaging guidelines specified in a drawing and/or an order shall be observed.
b) We shall only pay packaging material in addition to the agreed price, if a corresponding compensation was expressly agreed upon.
c) Shipment shall be free to the place of receipt designated by us. Deliveries ex works shall be forwarded to the carrier designated by us. If there are no shipping information they shall be requested in good time. If costs are borne in part, goods shall be shipped by the carrier designated by us at the most favourable freight rates. Freight costs shall be limited to the amount which upon placement of an order would be paid for shipment by a carrier selected by us.
d) In case of deliveries involving assembly or installation the risk shall pass to us upon acceptance; otherwise the risk shall pass upon arrival of a delivery item at the required point of receipt. To this point delivery and shipment shall be at Supplier’s risk unless we are in default of acceptance.
e) Costs of a transport insurance or a breakage insurance shall only be borne by us on the basis of a prior written agreement.
f) Notices of dispatch shall be submitted to us in writing or in textual form upon dispatch of each delivery. A consignment note shall be attached to each shipment. Our order numbers shall be included in the shipping documents.
g) If no duly executed shipping documents are submitted to us upon receipt of a delivery item or if shipping documents include wrong order numbers or item numbers, additional expenses incurred in this respect shall be paid by Supplier. In such cases, too, we shall be entitled to refuse acceptance of a delivery at Supplier’s expense. This provision shall apply mutatis mutandis in case of damaged packaging of incoming deliveries.
h) We may refuse to accept a delivery if due to Force Majeure or circumstances beyond our control including labour disputes or a pandemic it is impossible for us or if we cannot reasonably be expected to accept deliveries. In such case Supplier shall store all delivery items at its expense and risk.
i) In the cases referred to in par. g and h we shall not be in default of acceptance.
j) If deliveries not accepted by us or if defective goods are returned, a return transport shall be at Supplier’s risk. The return value shall be charged to Supplier’s account.
a) Unless otherwise provided for hereinafter Supplier’s warranty obligations shall be subject to the respective statutory provisions. We shall be entitled to demand at our sole discretion a removal of defects or a delivery of an item that is free of defects. In urgencies or in case Supplier fails to remove a defect within a reasonable period of time we shall automatically be entitled to remove or have removed a defect by a third party or otherwise obtain replacements at Supplier’s expense. If Supplier is in default of fulfilling its warranty obligations, we shall be entitled to rescind the contract.
b) A substitute delivery shall be without charge for freight and packaging. Returns of unusable goods shall be without charge for freight and packaging. Costs involved in a removal of defects shall be at Supplier’s expense.
c) Unless otherwise provided for the warranty period shall be 2 years extended by the period during which goods cannot be used due to defects. In case of a substitute delivery a new period of 2 years shall start.
d) Defects becoming apparent when processing or putting into use goods delivered may forthwith be complained about by us as they are discovered. Insofar Supplier shall waive the claim of late notification of defects. Our payments do not constitute an unconditional receipt of the goods.
e) If due to a defective delivery an incoming goods inspection exceeding standard incoming goods inspections is required, Supplier shall bear the costs involved. In urgencies we shall be entitled to remove the defects detected at Supplier’s expense.
a) We reserve the right to check the quality of the materials used, dimensional accuracy and quantitative accuracy and other qualities of the parts produced and compliance with other purchase conditions. We shall do so on Supplier’s premises and on its subcontractors’ premise during production and prior to delivery.
b) If we reserve the right of technical acceptance of a finished delivery item on Supplier’s premises by us or by a third party mandated by us, we and/or the mandated third party shall be informed in writing within a period of 14 days prior to readiness for dispatch that the goods are ready for acceptance. Actual costs of acceptance shall be borne by Supplier.
c) Manufacturing inspections and/or a technical acceptance shall not relieve Supplier from its fulfilment of general obligations and warranty obligations.
13. Product liability
a) If damage is caused due to a defect of Supplier’s product, Supplier shall be obligated to indemnify us against third party claims for damages at first request.
b) In this respect Supplier shall also be obligated to refund our expenses incurred due to or in connection with our recall. If deemed feasible and reasonable we will inform Supplier about content and extent of such recall and Supplier shall be given the opportunity to make a statement.
14. Property rights
a) Supplier shall guarantee that no third party patents and/or property rights are infringed when delivering or using the goods ordered. At our first request Supplier shall fully indemnify us against any claims by property right owners and Supplier shall be obligated to provide any assistance in defending third party claims and bear the costs involved. This shall also apply to third party deliveries to Supplier forwarded to us.
b) If Supplier is required to use brand names, Supplier shall manufacture the products using these specific brand names; this shall also apply to product numbers / article descriptions. Goods marked this way shall solely be delivered to us. If defective goods are returned, Supplier shall see to it that that returned goods are unusable. Reselling these products shall be prohibited.
15. Environmental protection
a) Supplier undertakes to comply with the respective statutory provisions on environmental protection and make efforts to reduce or even avoid any adverse effects of its activities on man and the environment. Besides commercial aspects energy efficiency, in particular, is crucial when placing our orders. In order to adequately consider environmental protection and energy efficiency, in particular, all national and international standards of the relevant EU directives shall be met.
b) Supplier shall perform a state-of-the-art quality control meeting all requirements in terms of type and scope.
c) We expect Supplier to maintain state-of-the-art quality of the goods to be delivered to us and inform us about possible improvements and technical modifications. However, modifications to a delivery item shall require our prior written approval.
d) Supplier shall guarantee compliance with all statutory and environmental provisions.
e) Furthermore, Supplier shall guarantee compliance with all customs regulations and local laws applicable to Supplier. In this respect Supplier shall comply with all standards of business conduct, i.e. putting strong emphasis on ethics and there shall be no involvement in corruption or similar activities. Supplier acknowledges that the provisions of the Act on Corporate Due Diligence Obligations in Supply Chains (Supply Chain Act) taking effect on 01/01/2023 are complied with.
f) Due to the size of our company, we are not subject to the legal requirements of the Supply Chain Due Diligence Act. We fulfill the objectives of this law to the extent possible for us, but we can only partially fulfill any information obligations in the course of the legal reporting obligations of the contractual partner subject to the law towards contractual partners who are subject to the aforementioned law and therefore exclude any information obligations regarding these contractual partners in this context.
16. Privacy / secrecy
a) Pursuant to the Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR) we process and store Supplier’s personal data for business purposes and objectives. Supplier shall be informed about the first-time storage of its personal data.
b) Supplier undertakes to comply with and implement the provisions of the Federal Data Protection Act and the General Data Protection Regulation.
c) Supplier undertakes to collect, process disclose, make accessible or otherwise use personal data solely for the purpose of performing a contract and subsequently store them solely for the purpose of meeting all statutory retention requirements. Disclosing personal data to third parties shall require our prior written approval unless Supplier is statutorily required to do so. Processing is required to perform a contract to which the data subject is a party or for the purpose of pre-contractual activities, with such processing being subject to a data subject’s request. Supplier shall ensure that all persons involved were instructed about data protection and are obligated to comply with data secrecy pursuant to Section 5, Federal Data Protection Act. During their activities and thereafter they undertake not to collect, process or use personal data without authorization. Supplier shall work towards compliance with all statutory data protection provisions including GDPR by all persons involved in the processing and execution of an order and make sure that information received from us are not disclosed to third parties or used otherwise.
d) Data protection officer’s contact data see website. Upon request, all required information shall be furnished to our data protection officer; data protection based on a data protection concept shall be evidenced and required documents shall be provided.
e) All data protection obligations under this contract shall survive the termination of the business relations existing or established between the parties.
f) Supplier undertakes to treat our information provided about the products to be delivered to us in the course of the cooperation as business secret in terms of the German Business Secret Protection Act. This includes, inter alia, construction plans, drawings, advertisements, technical details, documents and notes Supplier shall solely disclose to us but not to third parties.
g) If Supplier wants to advertise that it manufactures products for us, our express approval shall be required.
17. General provisions
a) Legal relations arising from or in connection with our order shall be governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods shall be expressly excluded.
b) Place of fulfilment shall be Remscheid, Federal Republic of Germany. If Supplier is a merchant, Remscheid shall be the venue, too. We shall also be entitled to sue Supplier at its place of general jurisdiction.
c) If a provision of these terms or the delivery contract is or becomes invalid, this shall not affect the validity of the remaining provisions. Such invalid provision shall be reinterpreted in a way that the intended legal and economic purpose is achieved. This provision shall apply mutatis mutandis, if there is a gap that needs to be filled. The parties undertake to immediately add legally effective agreements to such invalid provision or close such gap.