General Terms and Conditions
General conditions of purchase for VARIOVAC PS SystemPack GmbH (as at 22 May 2018)
Section 1 - Scope of application
- Thesegeneral conditions of purchase (‘GCP’) apply exclusively to companies within the meaning of Section 14 of the German Civil Code (Bundesgesetzbuch, BGB), to legal entities under public law or to special funds under public law within meaning of Section 310 Paragraph 1 of the BGB. Any deviating, contradictory or supplementary general terms and conditions of the seller only become an integral contractual component if and to the extent that we have explicitly consented to the validity of such terms and conditions. This requirement for consent applies in any case, for example even if we unreservedly accept deliveries whilst being aware of the seller’s general terms and conditions.
- The GCP particularly apply to contracts relating to the sale and/or supply of movable items (‘goods’), regardless of whether the seller manufactures the goods itself or procures them from sub-suppliers (Sections 433 and 650 of the BGB). Unless otherwise agreed, the GCP apply as a framework agreement in the version applicable at the time of the buyer’s order, or at least in the version last communicated in text form, also with respect to similar future contracts, without us being required to refer to them again on a case-by-case basis.
- Individual agreements made with the seller on a case-by-case basis (including subsidiary agreements, supplements and amendments) take precedence over these GCP. With respect to the content of such agreements, a contract or our confirmation in text form takes precedence, subject to evidence to the contrary.
- Legally relevant declarations and representations that the seller is to provide to us after the contract has been concluded (e.g. deadlines, reminders, declaration of rescission), must be made in text form to be valid.
- If we provide these GCP in another language, the German version shall take priority.
Section 2 - Concluding the contract
- Offers, orders, agreements and changes are only binding if they have been shared or confirmed by us in text form. If there are obvious errors (e.g. typing errors or miscalculations) or if the order is incomplete, including order documents, the seller must inform us of this so that they can be corrected or completed before our order is accepted; otherwise, the contract shall not be considered to have been concluded.
- Offers, consultations, drafts and samples must be provided by the seller free of charge.
- The seller is obliged to confirm our order in text form within a period of 4 working days, or to execute it unreservedly by sending the goods (acceptance). Delayed acceptance is deemed to be a new offer and requires our acceptance.
- These GCP also apply as a framework agreement for further seller deliveries unless the parties agree otherwise.
Section 3 - Prices
- Agreed prices are binding. All prices are inclusive of VAT unless shown separately.
- Unless otherwise agreed on a case-by-case basis, the price includes all of the seller’s services and auxiliary fees, as well as any incidental expenses (e.g. proper packaging, transport costs including any transport and liability insurance).
Section 4 - Retention of title
- If we provide items to the seller, we reserve ownership of such items. If the seller processes, mixes or connects the items provided (further processing), this is carried out for us. The same applies to the further processing of goods supplied by us, such that we are regarded as the manufacturer and acquire ownership in the product no later than the date on which further processing is carried out, in accordance with legal provisions. If security rights due from this paragraph exceed the purchase price of all reserved goods not yet paid for by more than 10%, we are obliged to release security rights of our choosing at the seller’s request.
- Goods are transferred to us unconditionally and regardless of whether the price has been paid. However if in specific cases we accept an offer from the seller that is conditional on payment of the purchase price, the seller’s retention of title expires no later than the date on which the purchase price for the goods supplied is paid. We remain authorised to resell the goods in the ordinary course of business, even before payment of the purchase price, subject to the advance assignment of the resulting receivables (alternatively, non-exclusive retention of title extended to resale applies). In any case, all other forms of retention of title, with particular reference to extended and transferred retention of title and retention of title extended to further processing, are excluded.
Section 5 - Evidence of origin, evidence under VAT law, export restrictions
- The seller shall complete the evidence of origin requested by us with the required information, properly sign it and provide it without undue delay. The same shall apply to evidence of third-country and intra-Community supplies under VAT law.
- If a delivery is subject to export restrictions in whole or in part either under German law or under the law of another country, the seller must inform us of this without undue delay.
Section 6 - Delivery period and delays in delivery
- The delivery period specified by us when ordering is binding. If the delivery period is not specified when ordering and if another agreement has not been made, the delivery period shall be 3 weeks from concluding the contract. If the seller finds that the agreed delivery period cannot be met, it must inform us of this without undue delay. The obligation to meet agreed deadlines remains unaffected.
- If delivery is delayed by the seller and we have set a grace period that was not complied with, we may have a third party make the delivery that the seller has not provided at the seller’s expense. As an alternative, if the seller sets a grace period that was not complied with, we may also withdraw from the contract.
- If there is a culpable delay in delivery, a contractual penalty shall be charged in the amount of 0.2% for each working day, capped at 5% of the value of the goods. We reserve the right to prove that more damage was incurred. The seller reserves the right to prove that no damage or a significantly lower amount of damage was incurred.
Section 7 - Performance, delivery, transfer of risk, default of acceptance
- The seller shall bear procurement risk for its services unless otherwise agreed on a case-by-case basis (e.g. restriction on stockpiling).
- Delivery is made in Germany ‘carriage paid’ to the location specified in the order. If the destination is not specified and if no other agreement has been made, delivery must be made to our place of business, D-19246 Zarrentin am Schaalsee.The respective destination is also the place of performance for the delivery and any supplementary performance (debt to be discharged at the creditor’s domicile).
- The delivery must be accompanied by a delivery note that states the date (of issue and shipment), the contents of the delivery (item number and quantity), as well as our order ID (date and number). If the delivery note is missing or incomplete, we shall not be responsible for any delays in processing and payment caused as a result of this.
- Risk of any loss and any deterioration of goods transfers to us upon transfer to the place of performance. If acceptance is agreed, this determines the transfer of risk. Otherwise, legal provisions from the law on contracts for work and services apply upon acceptance accordingly. Transfer and acceptance are the same if we are in default of acceptance.
- If we default on acceptance, legal provisions apply. However, the seller is also required to explicitly offer its services to us if a calendar time specified or to be specified is agreed for an action or for cooperation from us (e.g. provision of material). If we default on acceptance, the seller may demand compensation for additional expenses incurred in accordance with legal provisions (Section 304 of the BGB). If the contract relates to unacceptable items to be manufactured by the seller (one-off production), the seller is only entitled to further rights if we are obliged to cooperate and are responsible for the failure to cooperate.
- The seller is not entitled to have the service it owes provided by third parties (e.g. subcontractors) without our prior written consent. The seller shall bear procurement risk for its services unless otherwise agreed on a case-by-case basis (e.g. restriction on stockpiling).
- Incoterms 2010 apply, unless otherwise agreed: Incoterms® 2010, DDP, Zarrentin am Schaalsee.
Section 8 - Quality, producer liability and third-party property rights
- Delivery must be in line with the agreed specifications and comply with technical safety, health and safety at work, environmental protection and fire safety, with respect to applicable laws, regulations, guidelines and standards.
- The seller must constantly ensure that the quality of its products to be supplied to us are in line with the latest technology, and must inform us of possible improvements and technical changes.
- If the seller is responsible for damage to products, it must indemnify us against third-party claims to the extent that these are in its territory and organisation and to the extent it is liable with respect to the external relationship. Our further claims remain unaffected by this.
- As part of its indemnity obligation, the seller must reimburse us for expenses incurred from or in connection with using third parties, including for recalls, in accordance with Sections 683 and 670 of the BGB. We shall inform the seller of the content and scope of recalls if possible and reasonable, and give it the opportunity to comment. Our further legal claims shall remain unaffected.
- Unless otherwise agreed, the seller must take out and continue to have product liability insurance in place with a fixed sum insured of at least EUR 10 million for each instance of personal injury/property damage; if we are entitled to further claims, these shall remain unaffected.
- The seller guarantees that no third-party rights are infringed in connection with its delivery. If a claim is asserted against us by a third party due to such an infringement, the seller must indemnify us against such claims. With respect to third-party claims for damages, the seller has the right to furnish evidence that it did not cause the infringement of third-party rights. We will not make agreements with the third party at the seller’s expense without the seller’s consent. The seller is obliged to reimburse any expenses that we incur from or in connection with the use of third parties if this was necessary.
Section 9 - Claims for defects, provision of spare parts, supplier recourse and limitation
- Legal provisions apply to our rights for material defects and defects of title with respect to goods (including incorrect deliveries and shortfalls with respect to deliveries, as well as improper assembly, defective assembly instructions or operating instructions) and to any breaches of duty by the seller, unless otherwise agreed in the following.
- In accordance with legal provisions, the seller is particularly responsible for the goods being of the agreed quality when risk is transferred. However, product descriptions - particularly those indicated or referenced in our order - that are the object of the respective contract or are included in the contract in the same way as these GCP are considered to be an agreement relating to quality. It is irrelevant whether the product description comes from us, the seller or the manufacturer.
- Deviating from Section 442 Paragraph 1 Sentence 2 of the BGB, we are also entitled to claims for defects without limitation if we are unaware of the defect upon contract conclusion due to gross negligence.
- Legal provisions apply to the commercial inspection duty and the requirement to give notice of defects (Sections 377 and 381 of the German Commercial Code [Handelsgesetzbuch, HGB]), subject to the following conditions: Our inspection duty is restricted to defects found when we carry out controls for incoming goods with an external assessment, including delivery documents (e.g. transport damages, incorrect delivery or delivery shortfall) or defects that are evident during our quality control procedures when carrying out sampling. If acceptance is agreed, there is no inspection duty. Otherwise, the determining factor is the extent to which a review is feasible, taking into account the circumstances of the specific case based on the ordinary course of business. Our requirement to give notice of defects for defects found at a later date remains unaffected. Irrespective of our inspection duty, our notice of defects is regarded as being made ‘without undue delay’ and ‘in good time’ if it is sent within 5 working days of discovery or of delivery for obvious defects.
- Supplementary performance also includes removing defective goods and re-assembling goods if the goods have been incorporated into another item in accordance with its intended purpose. Costs incurred by the seller as a result of inspection and supplementary performance (including any removal and assembly costs) are to be borne by the seller even if it turns out that there was actually no defect. Our liability for compensation for damages in the event of a request to rectify defects remains unaffected; however in this regard, we are only liable if we recognise that there was no defect or we have not recognised there was not a defect due to gross negligence.
- If the seller does not meet its obligation to provide supplementary performance - either by rectifying the defect (repair) or by providing a non-defective item (replacement delivery), at our discretion - by a reasonable deadline set by us, we may rectify the defect and demand compensation from the seller for any necessary expenses or advanced payments required for this. If the seller fails to provide supplementary performance or if this is unreasonable for us (e.g. due to particular urgency, operational safety being compromised or expected disproportional damage), no deadline is required; we will inform the seller of such circumstances without undue delay, and beforehand if possible.
- Otherwise, we are entitled to reduce the purchase price or to rescind the contract in accordance with legal provisions in the event of material defects or defects of title. We also have a claim to compensation for damages and to reimbursement of expenses in accordance with legal provisions.
- The seller must ensure that spare parts can be supplied for a period of 10 years. If any products are to be discontinued, notification of this must be given at least 1 year before such products are actually discontinued.
- Supplier recourse
- a) We are entitled to unrestricted legal recourse claims within a supply chain (supplier recourse in accordance with Sections 478 and 479 of the BGB) in addition to claims for defects. We are particularly entitled to request from the seller the specific type of supplementary performance (repair or replacement delivery) that we owe to our recipient in specific cases. Our statutory right to choose (Section 439 Paragraph 1 of the BGB) is not restricted by this.
- b) Before we accept or fulfil a claim for defects asserted by our recipient (including reimbursement of expenses in accordance with Sections 478 Paragraph 2 and 439 Paragraph 2 of the BGB), we will inform the seller and request a written opinion, including a short statement of the facts. If the opinion is not provided within a reasonable period of time and if a mutually agreed solution is not found, the claim for defects actually granted by us shall be deemed due to our recipient; the seller is burdened with providing counterevidence in this case.
- c) Our claims from supplier recourse also apply if goods have been further processed by us or a recipient, e.g. by assembling another product, before the goods are sold to consumers.
- a) The contracting parties’ mutual claims lapse in accordance with legal provisions, unless otherwise agreed.
- b) Deviating from Section 438 Paragraph 1 No. 3 of the BGB, the general limitation period for claims for defects is three years from transfer of risk. If acceptance is agreed, the limitation period begins upon acceptance. The three-year limitation period also applies accordingly to claims from legal defects, where the legal limitation period for third-party in rem rights to restitution (Section 438 Paragraph 1 No. 1 of the BGB) remains unaffected; claims from legal defects also do not lapse if the third party is still able to assert the right against us - particularly if there is no limitation period.
- c) The limitation periods under sales law, including the above-mentioned extension, applies to all contractual claims for defects to the extent permitted by law. If we are also entitled to non-contractual claims for damages due to a defect, the usual legal limitation period (Sections 195 and 199 of the BGB) applies if the application of limitation periods under sales law does not result in a longer limitation period on a case-by-case basis.
Section 10 - Drawings, design documents, tools
- We reserve the right of ownership and any copyrights in any drawings and other documents, devices, models, tools and means of production surrendered in connection with the order. The ownership of tools and other means of production that we have paid for transfers to us.
- The above-mentioned items may not be scrapped or made accessible to third parties, e.g. for production purposes, without our explicit consent. They may not be used for any purposes other than those contractually agreed, e.g. supplies made to third parties. The seller must carefully store them for us at its expense for the duration of contract execution, and must protect them from access.
- The care, maintenance and partial renewal of the above-mentioned items is based on the agreements made between us and the seller.
- We reserve all rights in the drawings or products manufactured according to our specifications, and in processes we have developed.
Section 11 - Payment, billing, retention of title, advance payment
- If early deliveries are accepted, the due date for payment shall still be based on the agreed delivery date.
- Payments by us do not constitute acceptance of billing. The recovery of unpaid amounts remains reserved.
- Payment of the agreed price must be made within 30 calendar days of full delivery or performance (including agreed acceptance, if applicable) and once a proper invoice for payment has been made available. If we make a payment within 14 calendar days, the seller shall grant us a 3% discount on the net invoice amount. If payment is made on time via bank transfer and the payment instruction has been received by our bank before the payment deadline, we are not responsible for delays caused by banks involved in the payment process.
- We are entitled to offsetting rights and rights of retention, as well as the plea of an unfulfilled contract, to the extent permitted by law. We are particularly entitled to withhold payments that are due if we are entitled to claims from incomplete or defective services provided by the seller. The seller only has a right to offsetting or retention on the grounds of legally established or undisputed counterclaims and counterclaims that arise from the same contractual obligation as the receivable to be offset.
- Advance payments are only made if they have been explicitly agreed in text form and if security has been provided for the advance payment by a directly enforceable guarantee given by a German savings bank or an authorised bank in the European Economic Area (EEA), or if a commitment has been made by a commercial credit insurer.
Section 12 - Confidentiality
- The seller may only disclose our name to third parties as a reference with our explicit consent.
- The seller is obliged to treat the order and any related commercial and technical details as trade secrets, and must therefore treat them confidentially. It must obligate its previous suppliers accordingly. The regulations of our non-disclosure agreement FB067 (as amended) , which can be provided to the seller on request, are the object of this Contract.
Section 13 - Place of performance, place of jurisdiction, applicable law
- The law of the Federal Republic of Germany applies, with the exclusion of international uniform law, with particular reference to the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- If the seller is a trader, the place of jurisdiction for any disputes arising from the contractual relationship is our place of business. However, we are also entitled to bring about action at the place of performance for the delivery obligation in accordance with these GCP or an overriding individual agreement, or at the seller’s general place of jurisdiction in any case. Overriding legal provisions, with particular reference to exclusive powers, remain unaffected.
- The powers of ordinary courts apply. The parties reserve the right to have an arbitration agreement on a case-by-case basis.
DDP = „Delivered Duty Paid"/„Geliefert verzollt" bedeutet, dass der Verkäufer liefert, wenn er die zur Einfuhr freigemachte Ware dem Käufer auf dem ankommenden Beförderungsmittel entladebereit am benannten Bestimmungsort zur Verfügung stellt. Der Verkäufer trägt alle Kosten und Gefahren, die im Zusammenhang mit der Beförderung der Ware bis zum Bestimmungsort stehen und hat die Verpflichtung, die Ware nicht nur für die Ausfuhr, sondern auch für die Einfuhr freizumachen, alle Abgaben sowohl für die Aus- als auch für die Einfuhr zu zahlen sowie alle Zollformalitäten zu erledigen.