General purchasing conditions
of de Wit Deutschland GmbH
§ 1 General information
(1.1) The following general purchasing conditions apply in the current version for all contracts agreed between de Wit Deutschland GmbH (hereinafter referred to as the “Purchaser”) and the appropriate (possibly future) contractual partner (hereinafter referred to as the “Seller”) as well as any contracts to be completed with regard to the purchasing and delivery of goods insofar as they are applicable to companies, corporate bodies under public law and special funds under public law in the sense of § 310 I of the German Civil Code.
(1.2) We expressly indicate that terms and conditions of business of the Seller are only a part of the contract when they are recognised in writing by the Purchaser. In particular, no inclusion through coherent behaviour shall be caused by the Seller clearly referring to their general terms and conditions of business and the Purchaser refuting their validity or accepting the deliveries of the Seller without reservation.
(1.3) If the general terms and conditions of business of the Seller are also a part of the contract and the general terms and conditions of business contradict each other, then the general terms and conditions of business of both parties shall only be a part of the contract to the extent that they agree (principle of congruent validity). Disagreements resulting from contradictory general terms and conditions of business shall ideally be tackled taking the interests of parties on both sides into account, thus leading to a solution appropriate to the interests of both parties. If this is not possible, then the statutory regulations shall apply as a substitute. Disagreements shall not affect the validity of the contract nor the rest of the general terms and conditions of business.
(1.4) Contracts or changes to the contracts shall only take effect if they are agreed in writing. As such, compliance with the written form shall not only be used for the purposes of proof, but shall be much more a legally founded precondition of the declaration of intent (constitutive written form). This shall also apply to a change to this written form clause. However, formless contracts and contractual changes shall also be effective if they are completed with an individual agreement in the sense of § 305 b of the German Civil Code. We expressly state that the requirement for the written form shall also be given by telecommunicative transmission (e-mail) (cf. § 127 II, P.1 of the German Civil Code).
(1.5) These general purchasing conditions can be changed at any time as required by changes to the law, judicial changes or significant changes to the economic situation. The changes shall take effect, insofar as the Purchaser has informed the Seller of the new version of the general purchasing conditions in text form and with a clear emphasis of the changes, the Purchaser has indicated, on providing information on the new version, that the changes shall also take effect without the approval of the Seller if the Seller does not contradict the changes in good time, and contradiction by the Seller is not given within 2 (two) weeks from the arrival of the information.
§ 2 Offers, offer documents and quotations
(2.1) Offers by the Purchaser may only be accepted within a seven-day period after acceptance (e.g. by returning the signed order copy). After this, the Purchaser shall no longer be bound to the offer.
(2.2) Offers such as delivery orders or other orders by the Purchaser as well as the acceptance of the same shall be made in writing, c.f. § 1.4. This shall also apply to later additions and/or changes to the offers. The Seller shall inform us of clear errors (e.g. typing or calculation errors) and incomplete orders, including the order documents for the purpose of correction or completion before acceptance. Otherwise, the contract shall be considered as not having been completed.
(2.3) It shall be stated expressly that the in-house and field service staff of the Purchaser shall not be permitted to deviate or make additions to the content of the offer during or after contract completion or its acceptance. This shall not apply to approvals by our organs and authorised representatives; § 1.4 shall not be affected by this.
(2.4) All the documents provided for the submission of offers shall remain the property of the Purchaser and shall be subject to copyright. They may only be transferred or made accessible to the company employees involved in the creation of the offer. They shall be instructed accordingly before handover. Forwarding to other members of the company or to third parties and/or reproduction or saving – in whatever manner – shall only be approved with the prior written approval of the Purchaser.
(2.5) All the documents transferred to the Seller for the purpose of submitting offers shall be returned to the Seller completely and in an orderly fashion when the offer is submitted, at the latest 3 (three) weeks after handover.
(2.6) No guarantee shall be given for the creation and submission of offers, should nothing else have been agreed in advance and in writing.
(2.7) Quotations shall be a binding basis for any resulting orders for the period of their validity. They are not to be paid unless something was expressly agreed in writing.
§ 3 Prices
(3.1) The prices in the order (here, legally: “In the offer”) of the Purchaser shall be binding fixed prices and shall apply, if nothing else has been agreed, “delivered free” to the location specified in the order (reception location).
(3.2) If, in individual cases, nothing else has been agreed, the prices of the Seller shall include all services and additional services of the Seller including all the auxiliary costs (e.g. orderly packaging, customers, import duties, transport costs including possible transport and/or liability insurance) including the statutory VAT.
(3.3) If no prices are stated in the order (here, legally: “…in the offer”) of the Purchaser, then the prices given in the order (here, legally “…in the offer”) and/or the prices named in the order confirmation of the Seller shall be fixed prices, but which require acceptance by the Purchaser.
§ 4 Delivery, late delivery and contractual penalties
(4.1) The service and delivery location for all deliveries and services of the Seller shall be the reception location specified by the Purchaser.
(4.2) Delivery deadlines and periods shall be binding and must be complied with. Of key importance here shall be the arrival of the good in the reception location specified by the Purchaser.
(4.3) With all deliveries, on shipment of each delivery, a special messages shall immediately be sent to the Purchaser with an exact designation of the content of the delivery.
(4.4) The Seller shall be obliged to inform the Purchaser immediately and in writing on the reasons for the delay and the expected length of the delay as soon as it is clear that the agreed service/delivery times cannot be complied with.
(4.5) The Seller shall be obliged to load, stow and fasten all deliveries/services so that they can be safely transported in accordance with § 412 of the German Commercial Code.
(4.6) Delivery and shipping shall be free from any expenses and costs on the part of the Seller and shall be to the reception location named by the Purchaser. The Seller shall deal with customs, should nothing else have been agreed.
(4.7) The ordered good shall travel at the risk of the Seller. The Seller shall carry the risk of any disappearance or deterioration until handover. Deviating agreements must be agreed in advance and in writing.
(4.8) The delivery/service to a different reception location than that specified by the Purchaser shall also not cause a risk transfer to the Purchaser when this location accepts the delivery/service. The Seller shall carry the additional costs which result from the delivery/service going to a different reception location than that specified, if it is their responsibility.
(4.9) Packaging shall only be paid for if remuneration for it was agreed in advance and in writing. The Seller shall, at the request of the Purchaser, take back empty goods and packaging free of charge, should nothing else have been agreed in advance and in writing. Should the Seller demand the return of the packaging necessary for the delivery/service, then the shipping documents shall carry a clear indication of this. If such an indication is missing, then the Purchaser shall be permitted to dispose of the packaging at the cost of the Seller.
(4.10) The shipping documents shall contain all the additional notes required in the order for the order number, part designation, cost centre and delivery location. If this data is not specified in all the shipping and freight documents, then the Purchaser shall be permitted to refuse to accept the good and/or to demand a contractual penalty to the level of 1% of the invoice amount (however at least €25). If the Purchaser makes use of the contractual penalty, then it shall be possible to pay this with invoicing by the Seller.
(4.11) The ordered quantities shall be binding. If the Seller wishes to deviate from the agreed scope of delivery/service (also includes partial deliveries), then the Seller shall only be authorised to do this if the Purchaser has expressly agreed to this in advance and in writing. In the case of non-agreed deviations from the contents of the contract, the Purchaser shall also be authorised to refuse the delivery/service at the cost of the Seller.
(4.12) In the case of a delivery delay of more than three working days, the Purchaser shall be permitted to invoice a contractual penalty of 1% up to a total of 5% of the invoice value for each started week of the delay. This shall not apply if the delivery delay is the responsibility of the Seller. The contractual penalty can be claimed independently of a claim for damages resulting from a delay and shall not be added to any damage claims. Should the Purchaser accept the delayed service, then they can claim the contractual penalty, even without express reservation on accepting the delivery, with the final payment at the latest.
(4.13) With rail transport, the declaration of the goods in the freight documents shall be made according to the currently valid regulations of the appropriate railway companies. Costs and damage resulting from incorrect or neglected declarations shall be paid by the Seller.
(4.14) If the Purchaser weighs deliveries or parts of them on their calibrated scales, then this shall be definitive.
(4.15) If delivery from the factory has been agreed, the Seller shall choose the cheapest transport option. If the Seller deviates from this, for example through an express delivery, because they are not (or no longer) able to comply with the delivery deadline, then the additional costs compared to the lowest cost delivery method shall be paid by the Seller.
§ 5 Invoicing, maturity and payment
(5.1) Invoices shall be immediately sent in for each delivery, specifying all the additional indications required in the order, such as the order number, part designation, cost centre and delivery location of each individual item. The receivable of the Seller shall only be due on the arrival of such a checkable invoice, meaning that, amongst other things, the Purchaser shall not need to pay before the issue of a checkable invoice by the Seller and shall not be delayed in making the payment.
(5.2) Receivables shall only be due after the contractual service has been completed and invoice documents have been created correctly and are complete according to § 5.1. The Purchaser shall reserve the right to have a period of 10 (ten) days to complete invoice verification. Payments according to item 1 shall be paid on the 5th, 15th and 25th of any month, minus the agreed discount – but with at least a 3 % discount if the payment is made within 14 (fourteen) days of invoice acceptance – or paid net within 30 (thirty) days of invoice acceptance. The payment period shall begin with the acceptance of the orderly invoice, but not before the arrival and acceptance of the ordered good. The date of the receipt stamp shall be considered as the day of invoice receipt.
(5.3) Should invoicing occur before the service, then the payment and discount periods shall be aligned to the actual provision of the service. If services and invoicing are carried out early, then the payment and discount periods shall be aligned to the originally agreed delivery deadlines and periods.
(5.4) If nothing else is agreed in the contract, then the Purchaser shall pay the receivables by bank transfer or cheque.
(5.5) Payments shall always be made, even if not expressly noted, subject to invoice auditing. Payments shall never be considered as a recognition of an orderly delivery/service, waiving of contractual payments, warranty rights, guarantees or waiving of complaints according to § 377 of the German Commercial Code.
(5.6) The Seller shall insure the goods for transport and shall present the insurance policy to the Purchaser for viewing on request.
(5.7) The Seller shall be obliged to load, stow and fasten all executed transportation so that they can be safely transported, particularly in accordance with § 412 of the German Commercial Code.
§ 6 Duty to inspection and objection
The Purchaser shall investigate the service/delivery within a reasonable period for quality and quantity deviations. Objections by the Purchaser shall be considered timely if, in the case of obvious faults – counted from goods’ receipt – they are made to the Seller within 5 (five) working days or, in the cause of hidden faults – counted from discovery – they are made within 5 (five) working days.
§ 7 Rights of retention
(7.1) The Purchaser shall hereby accept a right of retention demanded by the Seller.
(7.2) The Purchaser shall also accept an extended right of retention. The Purchaser and Seller hereby agree that, instead of a right of retention, i.e. when it expires – for example through onward selling, connection or processing in the context of normal business – the new item or the receivable created from it shall replace it to the level of the receivable from the retention sale for the security of the Seller. For this, the Seller shall particularly permit a sale of the item in the context of normal business to a third party, providing that the third party does not make the surrender of the receivable owed to them dependent on their approval. Should receivables surrendered for security be part of an open invoice (current account), then the surrender shall relate to the appropriate part of the balance, including the final balance from the current account. The Seller shall hereby allow the Purchaser to collect the receivables surrendered by the Purchaser to the Seller as security. The Seller shall hereby agree that revocation of the allowance shall only be effective if there are authorised reasons for it and only if and while there are payment obligations from the retention sale. Only under these conditions shall the Seller, in the case of revocation of the allowance, be permitted to demand that the Purchaser inform them of the surrendered receivables and their debtors, disclose the surrender to the debtors or that the Seller shall make this disclosure themselves. To secure surrendered receivables, the Seller shall hereby make the surrender to the Purchaser subject to the condition precedent, that the Purchaser fulfils the receivable from the basic retention sale.
§ 8 Fulfilment by a third party
The Seller must fulfil the contract themselves. The Seller shall not be authorised to transfer fulfilment of the contract, either in whole or in part, to third parties, assuming that nothing to the contrary has been agreed in advance and in writing.
§ 9 Offsetting and rights of retention
(9.1) The Purchaser shall be authorised to offset due receivables which are due to the Purchaser or a company connected to the Purchaser against the Seller.
(9.2) The Seller shall only be permitted to add undisputed, legally binding claims which are ripe for adjudication, as well as claims from the same contractual relationship.
(9.3) Claims for the right of retention shall only be permitted if the basic counterclaims are determined to be undisputed, legally binding or ripe for adjudication.
§ 10 Material provisions
(10.1) Material provisions made available by the Purchaser shall remain the property of the Purchaser and shall be stored separately, labelled and managed as such. They may only be used for contract fulfilment for the Purchaser.
(10.2) If there is any value reduction and/or loss of material provisions caused by the Seller, then the Seller shall provide a replacement.
(10.3) Should processing or reformation take place with material provisions in the property of the Purchaser and/or third parties at the cost of the Purchaser, processing or reformation shall take place in the name and interest of the Purchaser, who shall directly purchase the property on manufacture of the new item (manufacturer clause).
(10.4) Should there be assignments as security and/or extended property retentions by third parties, then the expectancy shall be subject to the regulations of § 10.3 instead of the property.
(10.5) The Seller shall store the items manufactured according to §§ 10.3–10.4 for the Purchaser with the care of a normal businessperson until to handover to the Purchaser. In addition, the Seller shall maintain or replace these items free of charge, in order to guarantee their use at any time.
(10.6) Material provisions may, just as objects manufactured after this, neither be handed over to third parties without prior written approval of the Purchaser nor be used for contracts with third parties nor for publicity purposes nor for purposes of the Seller. They shall be secured against unauthorised viewing or use and must, if not otherwise agreed in writing, be returned to the Purchaser in an orderly state at the latest on orderly contract fulfilment, should the material provisions not be required for the warranty or if the Purchaser waives the warranty claims/guarantees.
(10.7) Should there be production difficulties or short-term price increases, the Purchaser shall be permitted to demand that the material provisions in their ownership be handed over.
(10.8) The Seller shall not have a right to possess material provisions if the material provisions are not used for the warranty or if the Purchaser waives warranty claims/guarantees.
(10.9) If the Purchaser also demands handover of the material provisions required for warranty claims/guarantees, then the Purchaser shall hereby expressly waive warranty claims/guarantees, meaning that the Seller shall have no ownership right.
(10.10) In the case of withdrawal/a termination of the contract, §§ 16.4–16.6 shall be applicable with regard to the handover claims for the material provisions.
§ 11 Confidentiality, protection rights, reference
(11.1) All non-obvious technical information and other non-obvious commercial and/or technical information made known through the business relationships with the Purchaser shall be treated confidentially, provided that nothing else occurs due to special circumstances. In cases of doubt, the Seller should consult the Purchaser. This information shall only be used for the fulfilment of contracts with the Purchaser and only be made available to such employees of the Seller as require involvement in contract execution on account of the corporate circumstances of the Seller. Forwarding to other members of the company or to third parties and/or reproduction or saving – in whatever manner – shall only be approved with the prior written approval of the Purchaser.
(11.2) Any subcontractors and other assistants shall be obliged by the Seller according to § 11.1.
(11.3) Without prior written approval, the Seller shall be prohibited from naming the Purchaser or the business relationship between the Seller and the Purchaser in any form as a reference.
§ 12 Quality assurance and insurance obligations
(12.1) The Seller shall carry out appropriate quality assurance which is suitable in its type and scope, according to the current state of the art, and to prove this to the Purchaser on request.
(12.2) The Seller shall be obliged to insure themselves to a reasonable level against all the risks of product liability and producer liability, including the return risk, and to present the insurance policies to the Purchaser on demand for viewing.
(12.3) The Seller shall insure the goods for transport and shall present the insurance policy to the Purchaser for viewing on request.
§ 13 Acts of God
(13.1) Unexpected events outside the control of the parties, such as war, the risk of war, the application of violence by third parties against people or property, government actions including currency and trade measures, work disputes with the parties or their suppliers or transport companies, interruptions to the intended transport connections, fire, a lack of raw materials, a lack of energy and other operational faults of the parties or their supplier or transport companies, shall extend agreed periods and deadlines for the length of the hindrance. This shall also apply if the parties are already late with a delivery or if the delivery obstacles listed above existed before contract completion, but the parties were not/should have been aware of them. The parties shall inform each other immediately of obstacles of the type above including their expected length.
(13.2) Should such delivery delays last for longer than a month, then both parties shall, after a reasonable and unsuccessful period of grace, withdraw from/terminate the contract. The same shall apply if the execution of the contract has become impossible for one of the parties due to the delay which has occurred.
(13.3) However, the occurrence of Acts of God shall not release the affected party from their liability regarding the infringement of the duty to care with regard to the elimination of the situation or the cause in an appropriate and proper form.
§ 14 Liability and guarantee of the Seller
(14.1) If claims are made against the Purchaser due to the infringement of official safety regulations or due to national or international product liability regulations because of faults in the product of the Purchaser which can be traced back to a good or service of the Seller, then the Purchaser shall be authorised to be released from this by the Seller, insofar as they have been drawn into this through products delivered by the Seller. However, in cases of fault-based liability, this shall only apply if the Seller is culpable. The damage shall also comprise the costs of a preventive, appropriate recall campaign.
(14.2) The Seller shall be obliged to release the Purchaser from claims of producer’s liability according to German or foreign law, insofar as the Seller is responsible for the errors triggering liability according to the rules of producer liability.
(14.3) The Seller shall provide the supplied items free of legal infringements by third parties. Irrespective of other claims, the Seller shall release the Purchaser from claims by third parties which result from the infringement of protection rights or protection right applications during contractual use of the supplied items. This shall not apply if the legal fault is not the responsibility of the Seller.
(14.4) In the case of warranty faults, the Purchaser shall be authorised to refrain from payment until fulfilment of the warranty obligations.
(14.5) Should the Purchaser be late with the fulfilment of the warranty obligations incumbent upon them, then the Purchaser shall be permitted, at the cost of the Seller, to eliminate the fault, have it eliminated or obtain replacement in some manner.
(14.6) The Seller shall carry all the costs for the purpose of testing and supplementary performance, particularly transport, work and material costs, including any costs of installation and dismantling. This shall also apply if there was no actual fault. The Purchaser’s liability for damages in the case of unauthorised claims for fault elimination shall not be affected. Thus, the Purchaser shall only be liable if they have detected or, with gross negligence, have not detected that there was no fault.
(14.7) The appropriate statutory regulations shall apply to the rights of the Purchaser for physical and legal faults and in the case of other infringements of obligations by the Seller.
§ 15 Liability exclusion and limitation, exclusion of a contractual penalty
(15.1) If non-essential contractual obligations are infringed, the Purchaser, their legal representatives and assistants shall only be liable in cases of intent and gross negligence.
(15.2) In the case of damage caused by negligence, the Purchaser, their legal representatives and assistants shall only be liable in cases of the infringement of an obligation, the fulfilment of which permits the correct execution of the contract and compliance with which the Seller has expected and expects (key contractual obligation/cardinal obligation), although the level shall be limited to the damage which was foreseeable at the time of contract completion and which is typical for the contract.
(15.3) An explicit exception shall be made for the liability exclusions and limitations above, the injury to life and health which is the result of an intentional (§ 276 III of the German Civil Code) or negligent (§ 276 II of the German Civil Code) infringement of obligations by the Purchaser or an intentional or negligent infringement of obligations by a legal representative or assistants (§ 278 of the German Civil Code) of the Purchaser and other damage caused by a grossly negligent infringement of obligations by the Purchaser or an intentional or grossly negligent infringement of obligations by a legal representative or assistants of the Purchaser in the sense of §§ 309 Nos. 7 a) and b) of the German Civil Code. In addition, the liability exclusions and limitations above shall not apply to the infringement of an obligation, whose fulfilment enables the correct execution of the contract and compliance with which the Seller has expected and expects (key contractual obligation/cardinal obligation). Thus, only the above liability restriction according to § 15.2 shall apply.
(15.4) A claim by the Seller for payment of a contractual payment shall be excluded.
§ 16 Termination, withdrawal and disclosure obligations
(16.1) The Purchaser shall be permitted to an extraordinary termination of the contract without compliance with a termination period or the Purchaser shall be given a right of withdrawal if the Seller is late with two or more deliveries and the delay lasts for more than two weeks after arrival of the reminder by the Purchaser in which they threaten termination or reserve the right to do so, if circumstances occur which suggest that the Seller shall not be able to meet their obligations from this contract over time (e.g. due to an ongoing economic crisis) and the Purchaser cannot be expected to maintain the contract or if the legal circumstances applicable at the time of contractual completion change significantly/the control over the Seller or a significant proportion of their shares is transferred to other natural or corporate bodies and this change can no longer be sensibly applied to the Purchaser.
(16.2) Should the legal circumstances applicable at the time of contract completion change significantly or should the control over the Seller or a considerable amount of their shares be transferred to other natural or corporate bodies, then the Seller shall be obliged to signal this immediately to the Purchaser.
(16.3) In addition, the Purchaser shall be allowed extraordinary termination of the contract at any time and the Purchaser shall be assigned a right of withdrawal if the Seller, despite reminders and the setting of a deadline with the threat of refusal is late with their contractual obligations from the contracts or these general purchasing conditions or has performed them badly or not at all, particularly if the quality of the delivered goods do not correspond to the specifications of the Purchaser or the drawing specifications of the Purchaser according to the released first sample, the Seller uses the material provisions which are the property of the Purchaser in a manner against the contract – and particularly handing them over to third parties or making parts for third parties, the Seller endangers material provisions by neglecting the obligations incumbent on them or the Purchaser requires the material provisions obtained for contractual fulfilment on account of an unforeseen circumstance.
(16.4) After termination of the contract/withdrawal from the contract, all the material provisions in the possession of the Purchaser shall be returned if the material provisions are not used for the warranty or if the Purchaser waives warranty claims/guarantees.
(16.5) In this case, the Seller shall not have a right to possession if the material provisions are not used for the warranty or if the Purchaser waives warranty claims/guarantees.
(16.6) If the Purchaser also demands handover of the material provisions required for warranty claims/guarantees, then the Purchaser shall hereby expressly waive warranty claims/guarantees, meaning that the Seller shall have no ownership right.
(16.7) The statutory termination and withdrawal regulations shall also apply accordingly.
§ 17 Place of jurisdiction and fulfilment
(17.1) The place of jurisdiction for all disagreements, also for foreign currency and cheques, shall be the head office of the Purchaser. The Purchaser shall also be permitted to proceed against the Seller in their place of business.
(17.2) The place of fulfilment for the delivery, all services and payments shall be the head office of the Purchaser.
§ 18 Other conditions and authorised version
(18.1) The Purchaser shall be authorised to process and save data relating the business relationship or connected to it about the Seller, irrespective of whether it is from the Seller or from third parties, in accordance with the German Data Protection Act.
(18.2) Only the law of the Federal Republic of Germany shall apply. The application of the conflict of laws and the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
(18.3) Should the Seller and Purchaser agree on the application of one of the international trade clauses (“Incoterms”) for the contract, then the current version shall apply.
(18.4) If there are differences between the English and German versions, then the German version of the general purchasing conditions shall apply.