elobau

General Terms and Conditions of Purchase

General Terms and Conditions of Purchase



General Terms and Conditions of Purchase


1.  General - Area of Application

 

1.1  The Terms and Conditions of Purchase of the CUSTOMER shall apply on an exclusive basis; any
terms and conditions of the SUPPLIER contradicting or deviating from the Terms and Conditions of
Purchase of the CUSTOMER shall not be recognised, unless the CUSTOMER would acknowledge
their application expressly in writing in a specific case. The Terms and Conditions of Purchase of
the CUSTOMER shall also apply if the CUSTOMER accepts the SUPPLIER’s delivery without any
reservation, being aware of terms and conditions of the SUPPLIER contradicting or deviating from
our Terms and Conditions of Purchase.


1.2  These Terms and Conditions of Purchase shall be an integral part of all eventual purchase orders of the CUSTOMER. They shall also apply to follow-up orders without the CUSTOMER having to make
reference to these Terms and Conditions again.


1.3  The Terms and Conditions of Purchase of the CUSTOMER shall apply to businesses only.

 

2.  Offers - Contract Documents

 

2.1  The SUPPLIER shall submit its offers in writing. Quotations shall be free of cost.


2.2  The CUSTOMER reserves its title to illustrations, drawings, calculations, models, instruments,
samples and other materials the CUSTOMER provides to the SUPPLIER for the preparation of the
offer or the performance of the contract, respectively; the same applies to the CUSTOMER’s
copyrights where the materials are copyrightable. The SUPPLIER shall take out insurance against
fire at its own expense covering all the aforementioned materials.


2.3  The materials and/or objects specified in section 2.2 shall not be provided to any third party, unless the CUSTOMER were to give its written consent to such provision in advance. The materials and
objects shall be used exclusively for the processing of the purchase order or the performance of the
contract, respectively, and shall be returned to the CUSTOMER upon written request, however no
later than upon the completion of the purchase order without request. The SUPPLIER does not
have any right of retention to such materials. The materials and objects shall not be disclosed to
third parties.

 

3.  Purchase Orders

 

3.1  The SUPPLIER shall accept the CUSTOMER’s purchase order within a period of five working days.


3.2  If the purchase order is not confirmed in writing within five working days, the CUSTOMER shall
have the right to cancel the contract offer within another 2 working days. No claims accrue to the
SUPPLIER as a result of such cancellation.


3.3  If the SUPPLIER’s order acceptance or letter of confirmation deviates from the purchase order, the
SUPPLIER shall expressly refer the CUSTOMER to such deviation. In such a case, a contract shall
only take effect upon the written consent of the CUSTOMER.


3.4  The CUSTOMER’s silence with regard to an order acceptance or letter of confirmation deviating
from the purchase order shall be deemed a rejection.


3.5  Purchase orders are binding upon the CUSTOMER only if issued or confirmed in writing by the
CUSTOMER’s purchasing department. This also applies to amendments or modifications. The
CUSTOMER may deny acceptance and payment for deliveries not made based on a proper written
purchase order. Printouts produced by way of data processing do not require any autograph
signature to becoming binding. In case of ambiguities in the purchase order, the SUPPLIER shall
clarify them by way of written query.


3.6  The contracting of a subcontractor requires the prior written consent of the CUSTOMER.

 

4.  Prices - Terms of Payment

 

4.1  The price specified in the purchase order shall be binding. In the absence of any written agreement providing otherwise, the price includes delivery “free domicile”, including packaging.


4.2  The statutory value added tax is not included in the prices.


4.3  The payment shall be made at the CUSTOMER’s option within 14 days after the receipt of the
invoice and the goods with a discount of 3% or otherwise within 30 days after the receipt of the
invoice in the net amount without any deduction. The assignment of invoice amounts to third parties
is not allowed.


4.4  Adjustments based on subsequently arising cost increases shall be excluded irrespective of the
cause, whatsoever, unless expressly agreed otherwise.


4.5  If the prices are not specified in the CUSTOMER’s purchase order, the SUPPLIER shall specify
them in its confirmation of order. In such a case, the contract shall take effect only upon the
additional written confirmation of the CUSTOMER.


4.6  If in exceptional cases prices should be agreed on the basis of either ex works or ex warehouse of
the SUPPLIER or a third party, all the costs incurred until the handover to the carrier, including
loading and cartage, shall be borne by the SUPPLIER.


4.7  The SUPPLIER has a right to set off and/or withhold only in case of counterclaims determined
without further legal recourse or which are undisputed or such ready for decision in pending
proceedings.

 

5.  Delivery Period

 

5.1  The delivery dates or delivery periods, respectively, specified in the purchase order are binding and are calculated as of the ordering date.


5.2  The SUPPLIER shall inform the CUSTOMER immediately in writing if circumstances occur or
become obvious to the SUPPLIER suggesting that the required delivery period cannot be met. If the
SUPPLIER violates this duty to inform, the SUPPLIER shall also be liable for such delays in
delivery, which the SUPPLIER is not to be held responsible for. The communication or silence upon
such communication shall not imply any acknowledgement of a new delivery date.


5.3  In the event of delay in delivery, the CUSTOMER has the right to claim penalty at a rate of 0.3 % of the prorated contract amount for the outstanding portion of the delivery for each working day the
delay persists, however not to exceed a maximum of 5 % of the entire net order value per orderThe
CUSTOMER has the right to assert such penalty until the date of final payment, although the
CUSTOMER may not have expressly reserved the right to do so at the time of accepting the
delayed delivery. Additional statutory claims shall not be affected by this provision, while the
CUSTOMER will have particularly the right to claim damages in lieu of performance once a
reasonable period has expired unsuccessfully, and to rescind the contract.


5.4  If the CUSTOMER is prevented from accepting the delivery due to force majeure or circumstances
not under the CUSTOMER’s control despite acting with reasonable diligence (e.g. industrial action,
business disruption, unforeseen and unavoidable alteration of manufacture and other
circumstances entailing a reduction of the demand), the CUSTOMER may request the delivery on a
later date without giving rise to the any claims of the SUPPLIER vis-à-vis the CUSTOMER.


5.5  For delay of acceptance to occur it is required that the SUPPLIER requests the CUSTOMER
formally to accept the item of delivery setting a period of a minimum of two weeks to do so. Delay of
acceptance is possible only if the CUSTOMER could not reasonably deny the acceptance of the
item of delivery.


5.6  If deliveries are made prior to the defined date, the CUSTOMER reserves its right to return the
goods at the SUPPLIER’s risk or bill the costs to the SUPPLIER, which the CUSTOMER incurs for
this reason (e.g. demurrage) and to set the invoice payment dates accordingly.

 

6.  Passing of the Risk

 

6.1  All the shipments shall be made at the SUPPLIER’s risk free of freight and expense to the
CUSTOMER’s works. The consignor shall pay the freight at the point of departure. The
CUSTOMER will not pay expenses for transport insurance. If due to the SUPPLIER’s fault,
shipments need to be sent as express or accelerated delivery, the SUPPLIER shall bear the extra
costs incurred too. The goods shall be packed appropriately taking into consideration the general
terms and conditions of the rail or road forwarder.


6.2  One copy of a bill of delivery shall be enclosed to each shipment. The bill of delivery shall include
details of the contents as well as the CUSTOMER’s purchase order number. Part shipments are
allowed only upon the express consent of the CUSTOMER.

 

7.  Invoices

 

7.1  Invoices shall be delivered as simple copy separate from the delivery.


7.2  Only the measurements, weights and unit numbers determined by the CUSTOMER shall be
authoritative for the calculation.


7.3  The CUSTOMER can process invoices only if they contain - according to the terms of reference in
the purchase order - the purchase order number shown there; the SUPPLIER shall be responsible
for all the consequences arising due to non-compliance with this duty, unless the SUPPLIER can
prove that it is not to be held responsible for such consequences.

 

8.  Quality - Execution Requirements

 

8.1  The items of purchase must necessarily feature the qualities or properties demonstrated by way of samples or as set out in quality assurance agreements.


8.2  If the SUPPLIER receives drawings, specimens or other requirements from the CUSTOMER, they
shall be exclusively authoritative for the type, quality and execution of the goods to be delivered.


8.3  If the CUSTOMER requests patterns, the full-scale production may only start after the written
approval of the pattern. The CUSTOMER shall be informed in writing immediately prior to the start
of full-scale production of any concerns the SUPPLIER may have with the specification of the
CUSTOMER. In such cases, the full-scale production may be commenced only after another written
instruction of the CUSTOMER.


8.4  The delivered goods must conform to the applicable statutory accident prevention regulations, VDE (German Association for Electrical, Electronic and Information Technologies) regulations, relevant
police regulations, other legal regulations as well as the acknowledged state of the art as coming
into consideration from time to time.

 

9.  Liability for Defects

 

9.1  The CUSTOMER has the right to opt for either subsequent performance or new delivery. The
CUSTOMER has the right to rescind the contract, reduce the purchase price and to claim damages
in lieu of performance, once the set reasonable period for subsequent performance lapsed without
success.


9.2  The CUSTOMER has the right to claim reduction of the purchase price and damages in lieu of
performance also in the event of negligible material defects.


9.3  In the event of subsequent performance, the SUPPLIER shall also bear the expenses incurred due
to the circumstance that after the delivery, the purchased item was brought to another place than
the domicile or the business establishment of the recipient.


9.4  The CUSTOMER’s claims resulting from the liability for material damages shall become statute-
barred upon 36 months as of the delivery of the contractually defined goods.


9.5  As part of the manufacturer’s recourse, the CUSTOMER is entitled to the statutory claims against
the SUPPLIER without any restrictions.


9.6  The CUSTOMER shall inspect the delivered goods for possible material defects within a reasonable
period, unless agreed otherwise; the complaint shall be made in due time if received by the
SUPPLIER within ten working days calculated as of the receipt of the goods or, in case of hidden
defects, as of their detection.


9.7  The SUPPLIER shall fully indemnify and hold harmless the CUSTOMER at first request from and
against all damage claims asserted by third parties for the defective condition of the product. In
lawsuits, if any, the SUPPLIER shall fully support the CUSTOMER at the SUPPLIER’s own
expense in the defence against the respective claims.

This shall also apply in the event that the products delivered by the SUPPLIER were in conformity
with the technical standards implementing a harmonised norm or any other technical specification
as determined by the Committee for Technical Work Equipment and Consumer Products and as
published by the instructed authority in the Bundesanzeiger (German Federal Gazette). The burden
of proof for the delivered product not to constitute any hazard to the safety or health of users or third
parties is entirely incumbent upon the SUPPLIER.

 

10.  Rescission of Contract - Damage Compensation

 

10.1  If the SUPPLIER fails to comply with the obligations assumed in the confirmation of order or does
so in violation of the contractual commitments, the CUSTOMER may rescind the contract and claim
damages in lieu of performance after the unsuccessful lapse of a reasonable period for
performance.


10.2  The CUSTOMER has the right to rescind the contract particularly if the SUPPLIER violates its
obligations pursuant to sec. 2.2 and 2.3.


10.3  The CUSTOMER’s right to rescind the contract will be applicable also if the SUPPLIER
discontinues payments or files a petition for the institution of insolvency proceedings.


10.4  The right to terminate with immediate effect for good cause remains unaffected in case of
continuing obligations.

 

11.  Product Liability - Indemnification - Third-Party Liability Insurance Cover

 

11.1  If the SUPPLIER is responsible for a product damage, the SUPPLIER shall indemnify and hold
harmless the CUSTOMER at first request from and against third-party damage claims to the extent
in which the cause is within its sphere of control and organisation and in which the SUPPLIER
proper is liable in relation to third parties.


11.2  As part of its liability for damage events as defined in paragraph 1 above, the SUPPLIER shall also reimburse expenses pursuant to sec. 683 and sec. 670 BGB (German Civil Code) as well as sec.
830, sec. 840 and sec. 426 BGB, if any, resulting from or in connection with any recall programme
carried out together with a purchaser. The CUSTOMER will inform the SUPPLIER - as far as
practicable and reasonable - of the content and scope of the recall measures to be carried out and
give the SUPPLIER the opportunity to make a statement. Any other statutory claims shall remain
unaffected.


11.3  The SUPPLIER shall maintain product liability insurance at a reasonable - lump-sum - amount,
however not less that € 10M per event of personal injury/material damage; if the CUSTOMER is
entitled to additional damage claims, they shall not be affected. On request at any time, the
SUPPLIER shall provide the CUSTOMER with a copy of the insurance policy or - on special request
- a current insurance confirmation.

 

12.  Non-Assignment

 

The rights and obligations of the SUPPLIER under the contract are not assignable or transferrable,
unless with the CUSTOMER’s consent.

 

13.  Violation of Property Rights

 

The SUPPLIER assumes the warranty that the goods it delivers do not violate any domestic or
foreign industrial or other property rights. The SUPPLIER shall indemnify and hold harmless the
CUSTOMER in the interior relationship from or against all damage or other claims asserted against
the CUSTOMER resulting from the violation of this obligation; this shall not apply in case that the
SUPPLIER is not to be held responsible for the violation of third-party rights.
The SUPPLIER’s obligation to indemnify relates to all expenses the CUSTOMER necessarily incurs
due to or in connection with facing claims of a third party.

 

14.  Reservation of Title - Provision - Tools - Non-Disclosure

 

14.1  If the CUSTOMER provides parts to the SUPPLIER, the CUSTOMER will maintain the title to such
parts. The processing or conversion by the SUPPLIER is made on behalf of the CUSTOMER. If the
CUSTOMER’s goods subject to reservation are processed together with other objects not belonging
to the CUSTOMER, the CUSTOMER will acquire the co-ownership to the new item in the proportion
of the value of its item (purchase price plus statutory VAT) to the other processed items at the time
of processing.


14.2  If the item provided by the CUSTOMER is blended inseparably with objects not belonging to the
CUSTOMER, the CUSTOMER will acquire the co-ownership to the new item in the proportion of the
value of the item under reservation (purchase price plus VAT) to the other blended objects at the
time of blending. If blending is made in such a manner that the item of the SUPPLIER has to be
considered as the main item, then it is deemed agreed that the SUPPLIER transfers the co-
ownership to the CUSTOMER on a pro-rata basis; the SUPPLIER shall safeguard the solely owned
or co-owned item on behalf of the CUSTOMER.


14.3  The CUSTOMER reserves its title to tools; the SUPPLIER shall use the tools only for the
manufacture of the goods ordered by the CUSTOMER and shall identify them as property of the
CUSTOMER by marking them with its name and a serial number consisting of numerals. The
SUPPLIER shall take out insurance at its own expense for the tools owned by the CUSTOMER at
replacement value against fire, water and theft damage. Concurrently, the SUPPLIER hereby
assigns to the CUSTOMER and the CUSTOMER hereby accepts the assignment of all
compensation claims under such insurance. The SUPPLIER shall carry out maintenance, service
and repair work, if required, with the CUSTOMER’s tools in due time at its own expense. The
SUPPLIER shall immediately inform the CUSTOMER of incidents, if any; if the SUPPLIER fails to
do so culpably, the damage claims shall remain unaffected.
Upon request, the SUPPLIER shall return such objects to the CUSTOMER in a proper condition;
the SUPPLIER does not have any right of retention to such objects.


14.4  The CUSTOMER may request the surrender of tools the SUPPLIER manufactures specifically or
procures from third parties for the manufacture of the products ordered by the CUSTOMER,
particularly in case of disruption of supply. In such a case, the CUSTOMER has the additional right
to reimburse the SUPPLIER for the not yet amortised portion of the tool costs. In this event, the
CUSTOMER will acquire the unrestricted title to the tools by way of such reimbursement; however,
if the tools remain with the SUPPLIER in this case too, the SUPPLIER may keep the tools as a loan
instead of delivering them to the CUSTOMER. The SUPPLIER commits itself to scrap the tools it
uses or used for the manufacture of products for the CUSTOMER only upon the prior written
consent of the CUSTOMER. In any other respect, the provisions in section 14.3 of these Terms and
Conditions of Purchase shall apply.


14.5  The SUPPLIER shall keep strictly secret all the illustrations, drawings, calculations and other
documents and information received. They must not be disclosed to any third party, unless with the
CUSTOMER’s express consent. The obligation of non-disclosure shall also apply after the end of
this contract and shall cease only once and to the extent in which the manufacturing expertise
contained in the provided illustrations, drawings, calculations and other documents has become part
of the public domain.


14.6  If the security interests due to the CUSTOMER pursuant to paragraphs 1 and/or 2 above exceed
the purchase price for all the goods under reservation not paid yet to the CUSTOMER by more than
20%, the CUSTOMER shall release the security interests at its option on the SUPPLIER’s request.

 

15.  Spare Parts

 

15.1  Unless agreed otherwise, the SUPPLIER shall hold available spare parts for the products delivered to the CUSTOMER for a period of 15 years after the delivery or serial delivery, respectively, and deliver them to the CUSTOMER at usual market terms. If the SUPPLIER intends to discontinue the
manufacture of spare parts for the products delivered to the CUSTOMER, the SUPPLIER shall
inform the CUSTOMER of this decision immediately once it has been taken. A period of six months
shall follow such a decision before the discontinuation of the manufacture takes effect.

 

16.  Legal Framework and Environmental Protection

 

16.1  The SUPPLIER commits itself to comply with the applicable legal regulations in the dealings with
employees and the handling of environmental protection and industrial safety matters and to
endeavour to avoid harmful impacts of its activities on humans and the environment. To this end,
the SUPPLIER shall set up and develop an environmental management system within the limits of
its resources, e.g. pursuant to ISO 14001 or a similar acknowledged system.


16.2  National and international regulations relating to declarable materials shall be binding - applicable as amended from time to time. They include, without limitation, the REACH, the RoHS, the
guidelines on the restriction of placing on the market and using certain hazardous substances and
compoundings (PBBs, PBDEs, PAHs, PFOS). The SUPPLIER shall bind its subcontractors and
their pre-suppliers accordingly and carry out appropriate control measures. We have the right to
verify the contents of such commitment. The SUPPLIER shall provide proof of its measures on our
request.


16.3  The most recent passage of the US Congress HR 4173, in particular with regard to § 1502 - Conflict Minerals, addresses serious issues and concerns within the supply chain of raw materials. Relevant conflict minerals are e.g. columbite-tantalite (coltan), cassiterite, gold, wolframite and their
derivatives from the Democratic Republic of the Congo and the adjacent countries as defined in
more detail in § 1502 (e) 1 and 4 of the Dodd Frank Act (USA).
The Supplier shall not use any conflict materials in the products it delivers and shall take and
implement appropriate measures to prohibit the purchase and use of conflict materials. If the
SUPPLIER should use columbite-tantalite (coltan), cassiterite, gold, wolframite and their derivatives
in the products it delivers, the SUPPLIER shall prove to us on request that the SUPPLIER does not
violate the prohibition of using conflict materials.


16.4  The SUPPLIER shall pay at least the minimum wage pursuant to the German Minimum Wage Act
of 11 August 2014 to its employees assigned with the execution of the ordered deliveries under the
relevant contract. The CUSTOMER has the right to request the SUPPLIER to submit evidence or a
written confirmation of the payment of the minimum wage at any time. Der SUPPLIER shall
indemnify and hold harmless the CUSTOMER from and against all claims asserted in the event of
violation of the regulations of the Minimum Wage Act by the SUPPLIER or any of its subcontractors.
Notwithstanding any other rights of termination and rescission, the CUSTOMER has the right to
rescind the contract with immediate effect or to terminate the contract if the SUPPLIER and/or its
subcontractors culpably violate the above provisions or the Minimum Wage Act of 11 August 2014,
respectively. The SUPPLIER shall compensate the CUSTOMER for any damage the latter incurs as
a result of the rescission or termination. Claims of the SUPPLIER for non-performance shall be
excluded. In any other respect, the consequences of the rescission or the termination shall be
subject to the legal regulations.

 

17.  Miscellaneous

 

17.1  Place of performance shall be the place as specified by the CUSTOMER from time to time; in the
absence of such specification, the place of performance shall be Leutkirch, Germany.


17.2  Venue of court for all disputes under this contract shall be Leutkirch. Nevertheless, the CUSTOMER has the right to sue the SUPPLIER at the court of general jurisdiction for the domicile of the SUPPLIER.


17.3  German law shall govern the implementation of the contract on an exclusive basis, excluding the
UN Sales Law.

 

If any of the provisions of the contract should be invalid, as a whole or in part, the validity of the
remaining contract shall not be affected. In such a case, the invalid provision shall be replaced by a
provision permissible by law adequate to achieve the spirit and purpose of the contract in a most
equivalent manner.

 

We operate a quality assurance system pursuant to EN ISO 9001:2008. The deliveries of the
supplier and/or services are used in applying this system.

 

Revision of: 10 January 2017

 

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