1. General - Scope of application
1.1 Our General Terms and Conditions of Purchase (GPC) are binding and take precedence. We shall not recognize any terms and conditions of the supplier that conflict with or deviate from our Terms and Conditions of Purchase unless we have expressly agreed to their validity in writing. Any deviating General Terms and Conditions of Business and Delivery of the supplier are hereby expressly rejected and shall be deemed invalid, even if they are not expressly rejected again upon conclusion of the contract or at a later date. Our Terms and Conditions of Purchase shall remain valid even if we accept the Supplier's delivery without reservation, taking note of conflicting terms and conditions or terms and conditions that deviate from our Terms and Conditions of Purchase.
1.2 Our employees are not authorized to agree on delivery bills, receipts of receipt or similar documents to the validity of conditions outside our Terms and Conditions of Purchase. With the first partial delivery of the goods by the supplier, including all associated goods and rights, our Terms and Conditions of Purchase are automatically recognized. This shall also apply to future orders, even if no express reference is made to our Terms and Conditions of Purchase in these.
1.3 All agreements between us and the supplier in the context of the fulfillment of the contract must be recorded in writing in this contract. Our Terms and Conditions of Purchase shall also remain valid for future transactions with the supplier.
1.4 Our Terms and Conditions of Purchase shall only apply to entrepreneurs pursuant to § 310 para. 1 BGB (German Civil Code).
1.5 If written notifications are required under these Terms and Conditions, this is also fulfilled by the text form pursuant to Section 126b of the German Civil Code (BGB).
2. Offer - Offer documents
2.1 The Supplier's offers are non-binding and free of charge for us.
2.2 Binding orders shall only become effective if they are placed by us in writing. Verbal agreements are valid if they are confirmed by us in writing.
2.3 The supplier must confirm orders immediately in writing by signing them. If we do not receive the confirmation within 14 days, we reserve the right to withdraw the order.
2.4 With regard to quantity, quality and design, the supplier must adhere to the inquiry or the tender in the offer and, in cases of deviations, expressly point this out in writing. Otherwise he shall lose his claim to additional remuneration. The supplier's offer shall be binding for a period of one month. In the event of discrepancies regarding the number, size or weight of the delivered goods, the values determined by our incoming goods inspection shall be decisive. We reserve the right to recognize excess or short deliveries.
2.5 We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. These documents may not be made accessible to third parties without our express written consent. They may only be used for production in accordance with our order. After completion of the order, they must be returned to us unsolicited. These documents must be treated confidentially vis-à-vis third parties, and in this context the provisions in Section 10Z also apply.
3. Prices - Terms of payment - Invoicing
3.1 The price stated in the order is binding and includes all ancillary costs. Unless otherwise agreed in writing, the price shall include delivery “free domicile”, i.e. delivery shall be made to our incoming goods department or to an expressly agreed alternative destination, including packaging and insurance. The return of packaging material requires a separate agreement. If a different agreement is made, the freight and packaging costs must be borne by the supplier in advance and shown separately on the invoice. Price adjustments due to subsequent increases in costs, taxes, etc. are excluded. If the price is not fixed when the order is placed, it must be communicated with the order confirmation at the latest. If we do not object within ten working days, this price shall be deemed to have been approved by us. The type of pricing has no effect on the agreement regarding the place of performance.
3.2 The statutory value added tax is not included in the price. The supplier must show the VAT separately in his invoices.
3.3 We can only process invoices if they contain the order number specified in our order in accordance with the instructions therein. The supplier shall be responsible for any consequences resulting from non-compliance with this obligation. Invoices must be submitted immediately after delivery in accordance with legal and regulatory requirements. Monthly invoices must also be submitted by the 5th of the month following delivery at the latest. The provision pursuant to Section 286 (3) of the German Civil Code (BGB), according to which default automatically occurs 30 days after the due date and receipt of an invoice, is excluded.
3.4 Payment shall only become due after we have received a proper invoice with VAT shown separately. Unless otherwise agreed in writing, payment shall be made as follows: Within 14 days less 3% discount, within 30 days less 2% discount or within 60 days net, calculated from the date of delivery and the corresponding receipt of the invoice. If the invoice is received by us before delivery, the date of receipt of the goods shall be decisive for the calculation of the discount period.
3.5 We reserve the right to offset within the statutory framework and to exercise a right of retention. In addition, we may offset all claims that we, the entire Schmitz-Wila GmbH or the domestic companies in which we directly or indirectly hold a majority interest are entitled to against the supplier.
3.6 The supplier may only assign its claim to third parties or have it collected by third parties with our written consent.
4. Delivery Time - Execution
4.1 Each order must be confirmed immediately, stating the binding delivery time. The delivery time stated in the order is binding. The delivery period shall commence on the date of receipt of the order by the supplier. After expiry of the delivery time, the supplier shall be in default without the need for a separate reminder. Compliance with the delivery dates or delivery periods shall be determined by the time at which the goods arrive at the unloading point specified by us or at the incoming goods department.
4.2 In the event of a delay in delivery, we shall be entitled to demand liquidated damages for delay in the amount of 1% of the delivery value per commenced week, but not more than 5%; we reserve the right to claim further damages. The supplier has the right to prove that no damage at all or significantly less damage has been incurred as a result of the delay. In the event of a delay in delivery by the supplier, we shall be entitled to demand compensation in lieu of performance and withdrawal from the contract after the unsuccessful expiry of a reasonable period. If we claim damages, the supplier has the right to prove that he is not responsible for the breach of duty.
4.3 The supplier is obliged to notify us immediately in writing if circumstances arise or become apparent, for whatever reason, including force majeure, which indicate that the agreed delivery time cannot be met. In such a case, we shall have the right either to extend the acceptance period or, if our interest in the delivery is significantly impaired, to withdraw from the contract in whole or in part and, if necessary, to claim damages. The supplier cannot derive any claims from this. In particular, the supplier is not entitled to withdraw from the contract without authorization or to increase prices in cases of force majeure or similar situations.
4.4 If initial samples or release samples are requested by us, the supplier may only commence series production after the sample has been approved in writing and the series has been released.
4.5 We reserve the right to subsequently demand changes in the quality of the delivery or service, provided that they can be implemented within the supplier's technical capabilities. Technical changes and their effects on prices, delivery times or other conditions must be specified in writing in accordance with the written agreements pursuant to Section 2 of these General Terms and Conditions of Purchase.
4.6 In the event of urgent operational concerns of our company, such as force majeure, fires, floods, the discontinuation of a product, etc., we reserve the right to withdraw from the contract without further costs in return for a compensation payment of 5% of the agreed price of the goods not yet delivered from the respective order. The supplier must inform us immediately if a delivery is subject to any export restrictions.
4.7 In the event that acceptance is prevented due to force majeure, we shall not be in default of acceptance.
5. Shipment - Transfer of risk - Documents
5.1 Unless otherwise agreed in writing, delivery shall be made to the shipping address or place of use specified on our order. This shall also be the place of performance.
5.2 The risk shall not pass to us until the goods have arrived at our premises. The supplier shall be liable for all damage, demurrage, etc. Acceptance of the delivery does not constitute approval of the goods.
5.3 The supplier is obliged to enclose an invoice with each consignment and to state our order number and our article number precisely on all shipping documents and invoices. If he fails to do so, he shall be responsible for any delays.
5.4 The supplier shall immediately provide us with proof of origin containing all necessary information and duly signed if we so request. The same applies to tax certificates for deliveries abroad and within the European Union.
5.5 Partial deliveries are only permitted after written agreement; otherwise we reserve the right to refuse acceptance. In any case, partial deliveries should not be regarded as independent transactions and must be marked accordingly in writing.
5.6 The supplier is responsible for transportation insurance.
6. Quality - Inspection for defects - Liability for defects
6.1 The supplier guarantees the use of high-quality and appropriate materials, proper assembly, correct and proper design, for the required power requirement, performance and efficiency, as well as the express conformity of the delivered goods with the samples, specimens and descriptions provided by him. The goods must comply with the directives, ordinances and regulations, in particular the RoHS directives, the DIN standards and the requirements of the property insurers and must have a CE certificate of conformity. If deviations from the regulations are necessary, the supplier must obtain our written consent. This shall not limit the supplier's liability. If the supplier has concerns regarding the execution, he must inform us immediately in writing.
6.2 We shall report obvious defects in the delivery insofar as such defects can be detected in the ordinary course of business. We are not obliged to carry out an incoming goods inspection. The notice of defects shall in any case be deemed timely if it is sent within five working days after expiry of the period for giving notice of defects provided for in § 377 HGB (German Commercial Code). In the case of goods where defects can only be detected during processing, the notice of defects can still be sent within one week of the defects being detected. In this case, the supplier also waives the objection of late notification of defects. In all cases in which a defect quota has been agreed with the supplier and this is exceeded, we shall be entitled to return the entire consignment at the supplier's expense and risk. If there is no separate agreement on an error rate, we may do so if the error rate of a shipment exceeds 1% of the respective shipment quantity.
6.3 If the delivery or service is provided in the contractually agreed condition or any defects identified have been rectified, we shall accept it. If a trial run is planned, acceptance shall take place after a faultless trial run and shall be confirmed by a joint acceptance report. Repeat tests due to defects identified in previous tests shall be borne by the supplier.
6.4 We are entitled to the statutory warranty claims without restriction. We may, at our discretion, demand that the supplier rectify the defects or deliver a defect-free product. The supplier is obliged to bear all necessary expenses for the rectification of defects or replacement delivery. If the rectification of defects is unsuccessful twice, if there is imminent danger or if there is particular urgency, we may rectify the defects ourselves at the supplier's expense. Payment of the purchase price or parts of the purchase price prior to the discovery of defects as well as acceptance or approval of submitted documents (drawings, drafts, models, samples, specimens, including intermediate products, etc.) shall not constitute recognition that the goods are free of defects and have been delivered in accordance with the contract and shall not constitute a waiver of claims for rectification of defects.
6.5 The right to claim damages, in particular the right to claim damages for non-performance, is expressly reserved. The supplier is obliged to compensate us for any damage, including consequential damage, resulting from the existence of a defect. We shall be entitled to remedy the defect ourselves at the supplier's expense if the remedy of defects fails twice, if there is imminent danger or if there is particular urgency. Payment of the purchase price or parts of the purchase price prior to the discovery of defects as well as acceptance or approval of documents submitted (drawings, drafts, models, samples, specimens, including intermediate products, etc.) shall not constitute an acknowledgement that the goods are free of defects and have been delivered in accordance with the contract and shall not constitute a waiver of claims for rectification of defects.
6.6 If delivered parts could not be put into operation due to defects, any current period shall be extended by the duration of the interruption of operations.
6.7 Our claims for defects shall lapse within 36 months, unless the mandatory provisions of §§ 478, 479 BGB apply. However, the limitation period shall not commence until the goods have been delivered in full and free of defects. Complaints about defects can be made at any time up to the expiry of the limitation period. The first notification of defects shall suspend the limitation period until each notification of defects has been dealt with, unless the defects are a gesture of goodwill on the part of the supplier or are completely insignificant. We shall be entitled to remedy the defect or procure a replacement ourselves at the supplier's expense if there is imminent danger or if the supplier is in default with the fulfillment of its obligation to remedy the defect.
6.8 Goods purchased on the basis of a brochure shall be deemed to have been purchased on a trial basis. If these goods do not comply with the contractual purpose stated by us within eight days of receipt, we reserve the right to make the goods available to the supplier without the supplier being entitled to any claims.
7. Product liability - Indemnification - Liability insurance cover
7.1 The supplier shall indemnify us against indirect third-party claims asserted against us due to poor performance by the supplier. The supplier shall be at liberty to prove to us that we are partly to blame or partly responsible for these claims. The limitation period for claims under this section shall be four years from the date on which we learned or should have learned of the claims, but no longer than 15 years after complete delivery.
7.2 If the supplier is responsible for damages, in particular product liability claims, which are attributable to causes within his sphere of control and organization and for which he himself is liable in relation to third parties, he shall be obliged to indemnify us against claims for damages upon first request.
7.3 As part of its liability for damages in accordance with Section 7.2, the supplier shall also be obliged to reimburse any expenses arising from or in connection with a recall action carried out by us in accordance with Sections 683, 670 BGB or Sections 830, 840, 426 BGB. We shall inform the supplier of the content and scope of the planned recall measures, insofar as this is possible and reasonable, and give him the opportunity to comment. This shall not affect our other statutory claims.
7.4 The supplier is obliged to take out and maintain product liability insurance with cover of € 10 million per personal injury and property damage (lump sum). Upon request, we are entitled to demand proof of this insurance. If we are entitled to further claims for damages, these shall remain unaffected by this insurance.
7.5 The self-inspections carried out by us do not release the supplier from its obligation to make faultless deliveries.
8. Industrial property rights
8.1 The Supplier warrants that no third-party rights, in particular patents, designs, trademarks and copyrights, are infringed within the Federal Republic of Germany in connection with its delivery. The supplier also guarantees that the delivered goods comply with all statutory provisions and official regulations, insofar as he was aware of such infringements or should have been aware of them as a specialist company.
8.2 Should we be held liable by a third party in respect of the aforementioned infringements, the supplier shall be obliged to indemnify us against such claims at our first written request. This indemnification obligation of the supplier shall also extend to the assertion of claims for damages due to violations of public law regulations.
8.3 The supplier's indemnification obligation shall include all expenses necessarily incurred by us in connection with claims asserted by third parties.
8.4 The limitation period for these claims is 36 months, calculated from the time of the transfer of risk.
8.5 We reserve the right to obtain the necessary authorizations for delivery, commissioning, use, resale, etc. of the delivered item from the owner of the property rights at the supplier's expense, provided that the resulting costs are significantly lower than the damage that would be incurred by both parties in the event of a rescission of the contract.
9. Retention of title - Provision of tools - Rights
9.1 Unrestricted title to the goods delivered by the supplier and the documents provided shall pass to us immediately after their handover and acceptance. By handing over the goods, the supplier declares that it has full power of disposal and that no rights of third parties exist. If this is not the case, the supplier must expressly state this, otherwise we shall be entitled to a right of retention.
9.2 If we make parts available to the supplier, we reserve title to them. Any processing or transformation of the parts by the supplier shall be carried out on our behalf. If our reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item on a pro rata basis, based on the value of our goods (purchase price plus VAT) in relation to the other processed items at the time of processing.
9.3 If the goods provided by us are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item on a pro rata basis. This shall be in the ratio of the value of our reserved goods (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier's item is to be regarded as the main item, it is agreed that the supplier shall transfer co-ownership to us on a pro rata basis. In this case, the supplier shall retain sole ownership or co-ownership for us.
9.4 We retain ownership of tools. The supplier is obliged to use the tools exclusively for the manufacture of the goods ordered by us. The supplier must insure the tools belonging to us against fire, water damage and theft at its own expense and hereby assigns to us all claims for compensation under this insurance, which we hereby accept. The supplier must carry out any necessary maintenance and inspection work as well as all servicing and repair work on our tools at its own expense and in good time. He must report any malfunctions to us immediately. In the event of culpable failure to fulfill these obligations, claims for damages shall remain unaffected.
9.5 Insofar as the security rights to which we are entitled in accordance with clause 9.2 and/or 9.3 exceed the purchase price of all our goods subject to retention of title that have not yet been paid for by more than 10%, we shall be obliged to release the security rights at our discretion at the supplier's request.
9.6 All rights to software (including source code), drawings, products or data of various kinds which have been produced according to our specifications, as well as to processes and inventions developed by us, shall remain our property. Copies may only be made to the extent that this is essential for the manufacture of the goods ordered by us. At our request, the supplier must return the documents at any time and destroy any copies made. The supplier has no right of retention to these documents.
9.7 We reserve the right of ownership and copyright to illustrations, drawings, calculations and other documents provided by us. These documents may not be made accessible to third parties without our express written consent. They are to be used exclusively for production within the scope of our order. After completion of the order they must be returned to us unsolicited and may not be disclosed to third parties.
10. Confidentiality
10.1 The supplier is obliged to treat all illustrations, technical and commercial documents, drawings, sketches, calculations and other documents and information provided to him by us as strictly confidential. He may not use them for his own competitive purposes unless we have expressly authorized this in writing. These documents may only be disclosed to third parties with our express written consent. In the event of any breach of this obligation, the supplier shall be obliged in commercial transactions to pay us a contractual penalty amounting to at least 10% of the agreed price, but no more than the sum that the supplier has otherwise obtained as a result of the breach, provided that this sum exceeds the minimum amount. The exact amount of the contractual penalty shall be determined by us in each individual case at our reasonable discretion. However, this shall not affect our claims for damages.
10.2 The confidentiality obligation shall remain in force even after conclusion of this contract and shall only expire if the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known.
10.3 The supplier must treat the fact of the conclusion of the contract as confidential and may only name us as a reference to third parties with our written consent.
11. Place of performance - Place of jurisdiction - Choice of law - Severability clause
11.1 If the supplier is a merchant, Arnsberg (Sauerland) is agreed as the exclusive place of jurisdiction for all disputes arising. However, we reserve the right to sue the supplier at his general place of jurisdiction.
11.2 The law of the Federal Republic of Germany shall apply, whereby the UN Convention on Contracts for the International Sale of Goods is excluded.
11.3 Unless otherwise specified in the order confirmation, our head office in Arnsberg (Sauerland) shall be the place of performance for all services and consideration, including payments.
11.4 These General Terms and Conditions of Purchase shall remain in force even if individual clauses are deemed invalid. The invalid clause shall be supplemented or reinterpreted by the parties in such a way that the economic purpose of the invalid provision is achieved as far as possible. The same procedure is followed if a gap-filling addition is made during the implementation of the contractual relationship. If the invalidity is based on a performance or time provision, the legally permissible measure shall take its place. Should a provision of these General Terms and Conditions of Purchase be invalid due to mandatory foreign law, the Supplier shall, upon request, agree the necessary contractual supplements with us and make the necessary declarations to third parties or authorities in order to ensure the effectiveness of the provision concerned and, if possible, its economic content under foreign law.
11.5 The German version of the General Terms and Conditions of Purchase shall prevail. In the event of translations, the German version shall take precedence over the English translation and shall be drafted in accordance with German case law.