General Terms and Conditions of Purchase
of Eckerle Technologies GmbH Last updated: December 2014 1. Validity 1.1. These General Terms and Conditions of Purchase apply to all business dealings (deliveries and services) with our suppliers. We do not accept any contrary or deviating terms and conditions from the supplier unless we explicitly agree to their application in a specific individual case. These Terms and Conditions of Purchase also apply if we accept the supplier’s delivery without any reservation while being aware of his contrary General Conditions of Delivery. The acceptance of deliveries or services or the settlement of invoices of the supplier do not signify that we accept his terms of delivery with respect to any contents contradicting or deviating from our General Terms and Conditions of Purchase. 1.2. Even if we do not explicitly refer to these General Terms and Conditions of Purchase each time, they also apply, in their respective version, to all future dealings with the supplier. 1.3. These Terms and Conditions of Purchase only apply vis-à-vis companies pursuant to Section 14 of the Civil Code, legal entities under public law or special funds under public law. 1.4. The contract language is German, and in case of any disputes, only the German version of these Terms and Conditions of Purchase shall be legally binding. 2. Prices, Terms of Payment 2.1. The written form is a prerequisite for orders and delivery calls. Verbal or telephone-based orders, agreements, complements and changes therefore require our written confirmation to become binding. 2.2. We are only bound to an order if the supplier confirms it to us in writing at the latest within 14 days. 2.3. If the order confirmation of the supplier deviates from our order, in particular with respect to price and delivery time, the supplier must explicitly indicate this deviation to us. Without such indication, we are entitled to refuse acceptance of this deviation. 2.4. The supplier may generally subcontract the orders placed by us to third parties only with our written consent. 3. Prices, Terms of Payment 3.1. The prices stipulated in our order are quoted exclusive of the currently applicable VAT, free delivery to the place of use including packaging and transport costs. Any price increase reservations require our written consent. 3.2. We can only process invoices if they show the order and article number, the storage location and the delivery address according to the specifications on our order; the supplier is responsible for any consequences arising from non-compliance of this obligation, unless proof is provided to the contrary. 3.3. Payment occurs after reception of the merchandise according to the contract and reception of the duly issued and auditable invoice within 14 days with a cash discount of 3 % or net cash within 60 days. In the event of acceptance of early deliveries, invoices do not fall due until the delivery date originally agreed. 3.4. Payment will occur at our discretion either by bank transfer or by cheque. 4. Producer status 4.1. If the supplier does not inform us in writing about his dealer status before contract conclusion or if we have been unable to simply identify his status as a dealer due to attenuating circumstances, the supplier legally enters into the contract relationship with us with respect to the merchandise ordered by us from him as its producer and assumes all the legal obligations of a producer in respect of us. 4.2. At our request, the supplier must issue a certificate of origin free of charge as required in foreign trade. The supplier must notify us of any change in origin as soon as possible and unsolicited and of his own volition. Where required, the supplier must provide proof of his details pertaining to the origin of the goods by means of an information sheet certified by his customs office. 5. Delivery Time, Transport and Transfer of Risk 5.1. The deadlines, time periods and delivery times indicated in the order are binding upon the supplier. In principle, deliveries are made free to the place of destination and must arrive at the place of destination at the agreed time of delivery. 5.2. If anticipated, approximate or estimated delivery times/periods have been agreed in a specific case and delivery has not occurred by the end of the following month, subject to agreements to the contrary, we have a right to cancellation. 5.3 If any circumstances occur or become known to the supplier which make it likely that the agreed deadline and the prescribed quality will not be observed, he must inform us immediately in writing by explaining the reasons for these impediments. The supplier must adequately compensate us for any damages according to 5.4 which result from a delayed, missing or incomplete notification. 5.4. The statutory provisions shall apply in respect of the qualifying conditions and legal consequences of defaulted delivery and/or service. If we accept a delayed delivery or service without reserving any rights, this does not constitute a waiver of claims based on the delay. 5.5. Unless otherwise expressly agreed in writing, shipping is carried out at the supplier's risk. Each shipment must be accompanied by a delivery note with all the order data. If a "ex works" delivery is agreed, we shall bear the lowest possible freight rates only. 5.6. The risk is only transferred to us once the shipment/service has been delivered to the place of destination. The supplier is liable for any losses and damages occurring during transportation, including unloading, up to the point of acceptance at the place of destination. 6. Code of practice, quality management, incoming goods inspection 6.1. The supplier will adhere to our quality and environmental code of practice. He will work towards EMAS or ISO 14001 certification or at least actively try to conserve resources and the environment. 6.2. The supplier must constantly monitor the quality of his deliveries and services. He is obliged to respect the quality assurance agreements concluded with us in their respectively applicable version at all times. Any changes to the delivered goods must be approved by us in advance. The supplier must record for all products, when, how and by whom a quality inspection ensuring defect-free production was carried out. The supplier shall obligate its own suppliers accordingly. 6.3. We perform an incoming goods inspection only in terms of visible external damage and obvious external deviations in terms of identity and quantity. We will notify such defects immediately. 6.4. We reserve the right to conduct a more detailed incoming goods inspection. Subsequently, we notify defects as soon as they are detected in the course of ordinary business. In this respect the supplier waives the right to object on the grounds of a late complaint regarding defects. Where defects have been identified, we are entitled to return the entire shipment. 7. Release, indemnity, insurance protection 7.1. If we face a claim from a third party under domestic or foreign law in relation to any procured merchandise, e.g. based on product liability, the supplier is obliged, on first request, to indemnify us against such compensation claims as far as they have been caused by reasons within if the cause lies within his sphere of control and organisation and he would be liable vis-à-vis third parties. 7.2. Within the scope of his liability for claims in terms of the preceding paragraph, the supplier shall be obliged to reimburse us for expenses pursuant to Sections 683, 670 or 830, 840, 426 of the German Civil Code arising from or in connection with a product recall ordered by the buyer. This also applies mutatis mutandis to recalls that we have effectuated to prevent danger in urgent cases or on the initiative of an authority. In this case, we will inform the supplier as soon as possible about the content and scope of the recall and give him an opportunity to express his opinion. 7.3. The supplier is obliged to maintain product liability insurance for the entire duration of the supplier relationship with us and for the subsequent limitation period of the compensation claims against the supplier to which we might be entitled. Such insurance must have a minimum basic coverage of € 10 m with a double annual maximization, must also cover product-asset damages to this amount according to the four cost damage clauses as well as reasonable testing and sorting costs and costs of spare part replacement. If the parts we have procured from the supplier, by their construction type, are designed to be built into motor vehicles or if this can be inferred from the circumstances of the order, the supplier shall make sure that the liability insurance to be maintained by him does not exclude motor vehicles. This applies without prejudice to our legal rights. 8. Proprietary, copyright exploitation and industrial property rights to contract documents and means of production, penalty 8.1. The supplier must duly store any material and parts provided by us until the time of use/processing in an appropriate manner separately from his property and must mark them as our property by appropriate labelling. Insofar it is deemed agreed between the contracting parties that the supplier assumes custody and care of the provided parts free of charge. 8.2. Models, matrices, stencils, patterns, tools and other means of production as well as confidential information and expertise that we provide to the supplier or that the supplier produces or procures at our expense, remain or become our property, as far as no contrary third party property rights exist. Any potential industrial property rights to them as well as all copyright exploitation rights remain reserved to us as far as no contrary third party rights exist. The supplier also guarantees that we are entitled to the rights of use and of exploitation for all means of production required for the achievement of the contract purpose. The processing or transformation of provided materials or parts (reserved merchandise) by the supplier always occurs for us. If such reserved merchandise is processed together with items that are the property of third parties, we acquire a co-ownership in the new object in the proportion of the value of our property in the items (purchase price plus VAT) to the other processed items at the time of processing or transformation. If the parts or materials provided by us are inseparably mixed or combined with other items not belonging to us, we acquire a co-ownership of the new object to the proportion of the value of the reserved goods (purchase price plus VAT) to that of the other mixed or combined items at the time of mixing or combination. If the mixing or combination occurs in such a way that items of the supplier must be considered the main item, it is deemed agreed that the supplier transfers a proportional co-ownership to us. In the case of other deliveries, any extended and prolonged retention of title on the part of the contractual partner is excluded. 8.3. The supplier is obliged to insure tools, provided material and parts belonging to us at his own expense against fire and water damage and theft at replacement value. The supplier herewith preventively assigns any compensation claims against that insurance company to us, and we herewith accept the assignment. 8.4. The supplier is obliged to execute on time all required maintenance, inspection, overhaul and repair work on the tools owned by us. 8.5. The supplier must immediately report to us all incidents that can lead to a disturbance or the loss of our above-mentioned right; if he culpably fails to do so, he is immediately liable for the damage incurred by us. 8.6. No production documentation and production means, to which we have property rights or copyright exploitation rights, may be used, reproduced, passed on, disposed of, pledged or made available to third parties, except for agreed or contractual purposes; in particular, said items must not be used to manufacture products for third parties. 8.7. Any production documents and – upon special request of the buyer – also certain means of production to which we have property rights or copyright exploitation rights must be treated as confidential. They may only be disclosed to third parties with our express consent. The confidentiality obligation also remains valid after the termination of this contract; it expires when the information contained in the documentation and/or means of production become known to the general public. 8.8. If no order turns out to be placed or when the order has been fulfilled, the supplier must return to us in perfect condition all production documents and production means obtained from us without keeping any copies, individual items etc. or, at our discretion, destroy them. The destruction and alteration must be proven upon request. 9. Breach of obligation For each case of a culpable breach of the obligations mentioned above, the supplier shall pay a penalty to the amount of 5% of the gross value of the order affected by the breach of the obligation, it falls due upon the first payment request. We reserve the right to claim for any greater damage that might have occurred in a specific individual case. 10. Property rights 10.1. The supplier guarantees that no third party property rights are infringed in relation to his delivery. If we face such third party claims, the supplier is obliged to indemnify us against such claims upon first written request; we are entitled to conclude agreements, in particular a settlement, with the third party without the approval of the supplier. 10.2. The obligation to indemnify refers to all expenses that the buyer necessarily incurs as a result of or in relation to the claim asserted by a third party. The limitation period is ten years, starting from contract conclusion. 11. Ownership of contract products The supplier shall transfer ownership of the products that have been manufactured by means of our production documents / production resources to us immediately at the time of manufacture. 12. Offset, rights of retention, assignment 12.1. We are entitled to offset and retention rights to the extent legally defined. The supplier may only set off claims with a counterclaim that is undisputed or legally confirmed as final. The supplier is entitled to a right of retention only if it is based on the same contractual relationship. 12.2. The assignment of claims against us is only valid with our written consent. This does not apply to assignments to a credit institution as collateral for securing business credits or to arrange an extended reservation of title. 13. General provisions 13.1. The laws of the Federal Republic of Germany apply to all rights and obligations from the contractual relationship including all related issues, unless otherwise agreed. The application of the United Nations' Convention on Contracts for the International Sale of Goods is excluded, the German conflicts of laws regulations shall not be taken into account.. 13.2. The place of performance for delivery and payment is the registered office of the buyer. 13.3. If the supplier is a merchant pursuant to the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction for all obligations arising from the contractual relationship – also for matters concerning bills of exchange and cheque – is the registered office of the buyer or, at his discretion, the registered office of the supplier. The agreement on the place of jurisdiction above also applies to suppliers whose registered office is located abroad. 13.4. If a provision of these conditions and of the other concluded agreements is or becomes ineffective, this shall not affect the validity of the remaining contract. The contracting partners are obliged to replace the ineffective provision with a new one following as closely as possible the economic intent of the previous provision.
Otto Eckerle Str. 6/12a
76316 Malsch
Germany
The supplier shall not be entitled to any right of retention.