of Borchers GmbH, Berghausener Str. 100, 40764 Langenfeld, Germany
1. Applicability
1.1.
Any deliveries, services and offers of our suppliers are exclusively based on these general conditions of purchase. These are an integral part of any contracts we conclude with our suppliers for the deliveries and services offered by them. They shall also apply for any future deliveries, services or offers to the client even if they are not separately agreed upon again.
1.2.
Terms and conditions of our suppliers or third parties shall not apply even if we do not sepa-rately disagree to their applicability in the individual case. Even if we make reference to a letter which contains or refers to terms and conditions of the supplier or any third party, this shall not constitute an agreement to the applicability of such terms and conditions.
2. Offer
2.1.
In their offer, the supplier shall exactly comply with our request and expressly point out any deviations.
2.2.
The offer shall be prepared free of charge and shall not give rise to any obligation on our part. Cost estimates shall only be remunerated after previous separate agreement.
3. Orders, required Information
3.1.
Orders and modifications of orders shall always be made in writing. The content of oral and telephone conversations shall regularly only be binding if confirmed by us in writing.
3.2.
Any order and modification of orders shall be confirmed in writing by the supplier.
3.3.
The following information must be indicated in any written document exchanged between the contractual parties:
complete order number,
order date,
our (order) reference.
4. Prices, invoice information, payment conditions
4.1.
The price indicated in the order shall be binding. Anything else shall only be applicable if the supplier has reduced the prices and/or improved the conditions in the time between the order placement and delivery. In such case, the prices and conditions applicable at the day of de-livery shall apply.
4.2.
With regard to phrasing, order of text and prices, invoices shall correspond to the order. Any additions and deletions shall be separately listed on the invoice.
4.3.
Unless anything else was expressly agreed upon in writing, we shall pay the agreed price within 14 days as of the day of delivery of the goods and receipt of the invoice with a discount of 3% or net within 30 days. Receipt of our transfer order towards our house bank shall be sufficient for timeliness of the due payments.
4.4.
In case of default in payment, we shall be obliged to pay default interest in the amount of five percent points above the respectively valid basic interest rate according to § 247 BGB (Ger-man Civil Code).
4.5.
Any payment effected by us shall not imply the recognition of conditions and prices. The time of payment shall not have any influence on the supplier’s warranty and right of complaint.
5. Delivery time and delivery, transfer of risk
5.1.
The delivery time (date and/or period of delivery) indicated in the order shall be binding. The delivery time shall start on the date when the order is placed. As soon as the supplier can reasonably assume that they will not be able to fulfil their contractual obligations completely or partially or not in due time, the supplier shall notify us about this upon indication of reasons and the expected duration of the delay. If the supplier fails to notify us, the supplier may not invoke the impediment towards us.
5.2.
If the date when the delivery shall be effected at the latest can be determined based on the contract, the supplier shall be in default with the expiration of such date without any warning from us being necessary.
5.3.
In case of default, we shall be entitled to the legal claims without any limitation, including the right of rescission and claim for damages instead of performance after effectless expiration of an appropriate deadline. Any possible contractual penalty agreed for the case of late delivery shall remain unaffected of this within the frame of § 340 para. 2 BGB. If a contractual penalty is agreed, this may be asserted until the maturity of the final payment without this requiring any reservation according to §§ 341 para. 3 BGB, 11 para. 4 VOB/B [German Construction Contract Procedures part B].
5.4.
We shall be entitled to demand a contractual penalty in the amount of 0.5% but a maximum of 5% of the respective order value for any started week of default in delivery in case of delays in delivery after previous written warning to the supplier. The contractual penalty shall be counted against the damage caused by delay to be replaced by the supplier.
5.5.
Without our previous written consent, the supplier shall not be entitled to make partial deliveries.
5.6.
The risk shall only be transferred to us when the goods are handed over to us at the agreed point of destination, even if shipment was agreed.
6. Warranty Claims
6.1.
In case of defects of the object of delivery, the legal claims shall be available to us without any restrictions. If the supplier has granted a warranty for the quality or durability of the object of delivery, we shall also be entitled to assert the claims from this warranty.
6.2.
Any quality and quantity deviations as well as other defects shall be considered as notified in due time if we notify the supplier thereof within 7 working days after receipt of the goods. Hidden material defects shall in any case be considered as notified in due time if we notify the supplier thereof within 14 days after identification and notice by us.
6.3.
The supplier’s warranty shall also cover parts manufactured by subsuppliers.
6.4.
With the acceptance and/or approval of submitted patterns or samples, we do not waive any warranty claims.
6.5.
Unless anything else has expressly been agreed upon, the legal periods of limitation shall apply.
6.6.
With the receipt of our notice of defects by the supplier, the period of limitation of warranty claims shall be suspended until the supplier rejects our claims or declares the defect removed or otherwise refuses to continue negotiations of our claims. In case of delivery of substitutes and removal of defects, the warranty period for replaced and improved parts shall start again, unless we had to assume that the supplier did not feel obliged to carry out such measure from the supplier’s behaviour but has only carried out the replacement delivery or removal of defects as a gesture of goodwill or similar reasons.
6.7.
The parts criticised based on the warranty shall remain at our disposal until replacement and shall then become the property of the supplier by means of replacement.
6.8.
The legal warranty claims to which we are entitled shall not be affected by the acceptance of the supplier’s delivery and service by us.
6.9.
Apart from that, the supplier shall be liable according to the legal provisions.
7. Product/manufacturer’s liability
7.1.
The supplier shall be responsible for any personal or material damages asserted by third parties which are due to a defective product delivered by the supplier and shall be obliged to hold us harmless against any liability resulting thereof. If we are obliged to carry out a product recall for third parties because of a defect of a product delivered by the supplier, the supplier shall bear any costs related to such product recall.
7.2.
The supplier shall be obliged to maintain a product liability insurance with a limit of liability of at least 1 million USD which does not need to cover the risk of recall or punitive or similar damages unless anything else is agreed upon in the individual case. The supplier shall at any time send a copy of the liability policy to the ordering party upon request.
8. REACh
8.1.
With the written confirmation of our order according to section 3.2. of these conditions, the supplier promises and warrants that the supplier’s deliveries comply with the provisions of the Regulation (EC) 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACh Regulation).
8.2.
The substances contained in the supplier’s products are pre-registered and/or registered after expiration of the transition periods as far as required according to REACh unless the substance is exempt from registration.
8.3.
According to the provisions of the REACh Regulation, the supplier shall provide safety data sheets and/or the information required according to art. 32 REACh. Moreover, the supplier shall also provide the information according to art. 33 of the REACh Regulation upon request.
8.4.
Suppliers whose company headquarters are located in non-EU member states undertake to transmit their registration number directly after registration but at the latest with their order confirmation if they ordered from an Only Representative (art. 8 of the REACh Regulation) and their registration covers the agreed delivery. If the Only Representative has effected a pre-registration or registration which covers the delivery, the supplier shall attach the correspond-ing confirmation to the delivery. In this, the Only Representative headquartered in the EU must be mentioned by name upon indication of the address within the EU.
8.5.
If the supplier violates any of the obligations described under 8.1.-8.4, we shall at any time be entitled to cancel the respectively concerned order immediately and free of charge as well as to refuse acceptance of such delivery. The assertion of damages caused by the breach of duty described above shall be subject to applicable law.
9. Examinations
If examinations are planned for the object of delivery, we shall bear any related personnel expenses incurred. Any other examination costs incurred shall be borne by the supplier.
The supplier shall bindingly notify us about the readiness for examination at least one week in advance and arrange an examination date with us. If the object of delivery is not presented at this date, our personnel examination expenses shall be charged to the supplier. If repeated or additional examinations are necessary due to defects found, the supplier shall bear any material and personnel costs for these. The supplier shall bear the material and personnel costs for material certificates of the primary materials.
10. Insurances
10.1.
The transportation insurance shall be concluded by us.
10.2.
The conclusion of a special erection insurance in addition to the third-party liability insurance according to section 8.2 shall require an agreement between us and the supplier in the indi-vidual case.
10.3.
The machines, substances, devices etc. which are provided to us as a loan are insured against the common risks by us. Any liability beyond this on our part for ruin and/or damages of the provided machines, devices etc. shall be excluded except for cases of intent or gross negligence.
11. Shipment regulations
11.1.
The delivery shall be accompanied by the delivery note, packing slip and respective analysis certificate upon indication of the respective order number, order date and reference of the ordering party. In case of shipment by ship, the name of the shipping company and of the ship must be indicated in the shipment documents and on invoices. The supplier shall choose the transportation options which are most favourable and best suited for the ordering party. In any dispatch notes, delivery notes, packing slips, consignment notes, invoices and on the outer packaging etc. the order references required by the ordering party shall be completely indicated.
11.2.
In principle, the supplier shall package, label and ship dangerous products according to the nationally/internationally applicable regulations. In addition to the danger class, accompanying documents shall also include any further information as stipulated by the respectively applicable transport regulations.
11.3.
The supplier shall be liable for damages and bear the costs incurred due to non-compliance with these regulations. The supplier shall also be responsible for compliance with these shipment regulations by their sub-suppliers.
11.4.
Any shipments which cannot be accepted because of non-compliance with these regulations shall be stored at the expenses and risk of the supplier. The ordering party shall be entitled to determine the content and state of such shipments. Tools and equipment may not be loaded together with objects of delivery.
12. Ownership protection
12.1.
We reserve the ownership or copyright in any drawings, standards, guidelines, analysis methods, recipes and other documents which we provided to the supplier for production of the object of delivery as well as in any documents which the supplier prepares according to our specifications. The supplier shall not make them accessible to third parties, publish them, use or reproduce them or allow their use or reproduction by third parties without our previous express written approval. The supplier shall completely return these documents to us at our request. This shall also apply if the documents are no longer needed by the supplier in their ordinary course of business or if negotiations do not result in the conclusion of a contract. Any copies made of them by the supplier shall in any case be destroyed. Exempt from this are only the documents which are required to be kept within the frame of legal duties to preserve records as well as storing of data for backup purposes within the frame of common data protection.
12.2.
The supplier shall regard the request, order and related works as a trade secret and accord-ingly treat them confidential. The supplier shall be liable for any damages from any violation of one of these obligations incurred by the ordering party.
12.3.
The supplier shall provide us with any documents that are necessary for the determination of the object of delivery. Any such determination or other involvement on our part shall exclu-sively fall under the supplier’s area of responsibility and shall not release the supplier from any warranty and other obligations.
12.4.
Documents of any type which we need for the use, erection, assembly, processing, ware-housing, operation, maintenance, inspection and repair of the object of delivery shall be pro-vided by the supplier in due time and without being requested free of charge.
12.5.
The standards and guidelines indicated by us shall apply in their respectively latest versions. Company standards and guidelines of the ordering party shall be requested by the supplier in due time unless they were already provided.
12.6.
Reservations of title of the supplier shall only apply to the extent that they refer to our payment obligations for the respective products in which the supplier reserves ownership. In particular, expanded or extended reservations of title shall be inadmissible.
13. Acquisition of ownership by the ordering party
Any forms, models, tools, films etc. which were produced for the execution of the order by the supplier shall completely be transferred to our ownership with their complete payment even if they remain in the property of the supplier. These items shall be handed over to us upon request.
14. Patent infringements, protective rights
14.1.
The supplier shall be liable for the fact that no protective rights of third parties (patents, licences etc.) in countries of the European Union, North America, Asia or other countries where the supplier produces or has produced products are violated in connection with the deliveries. Any licence fees shall be borne by the supplier.
14.2.
The supplier shall be obliged to keep us indemnified against any claims which third parties might have towards us because of the infringement of commercial protective rights according to section 1 and to reimburse any expenses in connection with such claims to us. This claim shall exist regardless of a fault of the supplier.
15. Secrecy
15.1.
The supplier shall only be entitled to make reference to the business relation with us in information and advertising materials with our express previous written approval.
15.2
The supplier shall be obliged to keep secrecy with regard to the conditions of orders as well as any information and documents provided for this purpose (with the exception of publicly accessible information) for a period of 5 years after the end of the contract and to only use them for the execution of the order. After having processed requests or orders, the supplier shall immediately return them to us upon request.
15.3.
The supplier shall also impose this obligation according to this section 15 on sub-suppliers.
16. Assignment
The supplier shall not be entitled to assign any claims from this contractual relation to third parties. This shall not apply for financial claims.
17. Origin of goods
The delivered goods shall satisfy the conditions of origin of the preferential agreements of the EEC unless anything else is expressly stated in the order confirmation.
18. Place of fulfilment, place of jurisdiction, applicable law
18.1.
The place of fulfilment for both parties and exclusive place of jurisdiction for any litigations from this contractual relation shall be Langenfeld (Rhineland) in Germany.
18.2.
The contracts concluded between the ordering party and the supplier shall be subject to the laws of the Federal Republic of Germany upon exclusion of the convention on the international sale of goods (UN Convention on Contracts for the International Sale of Goods).