Terms and Conditions
General terms and conditions
Terms of sale, delivery and storage
1. terms and conditions, offer
1.1
The following terms and conditions shall apply exclusively to all our offers, deliveries and services.
1.2
The contract shall be concluded exclusively on the basis of our Terms and Conditions of Sale, Delivery and Storage. Other contractual arrangements shall not apply, even if individual provisions are not included in our Terms and Conditions of Sale and Delivery, unless we have expressly agreed to them in writing.
1.3
Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions of Sale, Delivery and Storage. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
1.4
References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these Terms and Conditions of Sale, Delivery and Storage.
2. conclusion of contract
2.1
Our offers are subject to change and non-binding. This shall also apply if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form.
2.2
The order of the goods by the customer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within four weeks of its receipt by us.
2.3
Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
2.4
The written form is also fulfilled by fax, remote data transmission or e-mail.
2.5
Verbal declarations and declarations made by telephone by our employees who are not authorized to represent us as well as subsidiary agreements made by such employees shall only be effective if they have been confirmed by us in writing.
2.6
Orders, contracts and delivery schedules as well as their amendments and supplements must be in writing.
2.7
Illustrations, drawings, weights, descriptions, etc. in offers, price lists and other general printed matter have been prepared or determined to the best of our ability, but are only approximate unless they are expressly designated as binding. We reserve the property rights and copyrights to cost estimates, drawings and other documents. They may not be made accessible to third parties and may only be used for the agreed purpose.
3. Delivery, Deadlines, Delay
3.1
The supplier shall not be entitled to have the performance owed by it rendered by third parties (e.g. subcontractors) without our prior written consent. The supplier shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).
3.2
Agreed dates and deadlines shall be binding. The receipt of the goods by us shall be decisive for compliance with the delivery date or delivery period. If delivery “free works”/”free domicile” (e.g. DAP or DDP according to Incoterms 2010) has not been agreed upon, the supplier shall make the goods available in due time, taking into account the time for loading and shipment to be agreed upon with the carrier, and inform btv accordingly.
3.3
If premature deliveries have not been notified to us, we reserve the right to return the delivery at the expense of the supplier. If we do not return the goods in the event of early delivery, the goods shall be stored at our premises until the delivery date at the expense and risk of the supplier. We shall be entitled to deduct any additional costs incurred by us from the remuneration.
3.4
If agreed deadlines are not met, the statutory provisions shall apply. If the supplier foresees difficulties with regard to production, the supply of input materials, compliance with the delivery date and/or similar circumstances which could prevent him from delivering on time or in the agreed quality, the supplier shall immediately notify our ordering department.
3.5
In the event of a delay on the part of the supplier, we shall be entitled to demand 0.3% for each working day of the delay since the occurrence of the delay, but not more than a total of 10% of the gross remuneration for the delayed delivery or service, unless the supplier proves that we have incurred no damage at all or only damage that is at least 10% and thus significantly lower. This shall not affect our right to claim further damages for delay.
3.6
The unconditional acceptance of deliveries and/or services shall not constitute a waiver of the claims for compensation to which we are entitled due to the delayed delivery and/or service; this shall apply until full payment of the remuneration owed by us for the delivery and/or service concerned.
3.7
Partial deliveries are generally inadmissible unless we have expressly agreed to them or they are reasonable for us.
3.8
Unless proven otherwise, the values determined by us during the incoming goods inspection shall be authoritative for quantities, weights and dimensions.
4. Force majeure
Force majeure, operational disruptions for which we are not responsible, riots, official measures, industrial disputes, strikes, pandemics and other unavoidable events shall release us from the obligation to take delivery on time for the duration of their occurrence. During such events and within 14 days after their end we shall be entitled – without prejudice to our other rights – to withdraw from the contract in whole or in part insofar as these events are not of insignificant duration and our requirements are considerably reduced due to the need to procure the goods elsewhere as a result.
5. shipping, customs declaration, export restrictions
5.1
Unless otherwise agreed in writing, delivery shall be made free domicile (INCOTERMS 2010: DDP) to the place of delivery designated by us.
5.2
If the Supplier is domiciled abroad or if it or its upstream suppliers import goods, it shall be obliged, without being requested to do so and in good time, (1) to ensure the correctness of the declaration of the goods, which must comply with EU law and/or national customs regulations and the Foreign Trade and Payments Act of the Federal Republic of Germany, (2) to specify the country of origin of the goods and (3) to check any export restrictions that may apply with regard to the resale of the delivered goods in accordance with the law of the countries in which the Supplier and its upstream suppliers are domiciled and to notify us in writing of any such restrictions.
In particular, the supplier shall be obliged to provide us, without being requested to do so, with a supplier’s declaration in accordance with Regulation (EC) No. 1207/2001 or the provisions replacing it for all goods originating in the European Union; the supplier may also issue us with a long-term supplier’s declaration, each of which shall be valid for one year, but in this case must notify us of any changes in the originating status without being requested to do so.
Furthermore, the supplier shall provide us with the following information on the delivery documents without being requested to do so:
– The statistical commodity number for each delivered item (according to the commodity index for foreign trade statistics),
– the notification of licensing requirements according to the Foreign Trade and Payments Act (AWG) and the Foreign Trade and Payments Ordinance (AWV) as well as Regulation (EC) No. 428/2009 (EC Dual-Use Regulation,
– for goods of US origin, the ECCN number (Export Control Classification Number) in accordance with the EAR (Export Administrations Regulations),
– whether the goods were transported through the U.S., manufactured or stored in the U.S., or manufactured using U.S. technology, and
– a contact person in his company for clarification of any queries.
The above obligations of the supplier are independent obligations to cooperate so that we are in a position to comply with applicable customs, export and foreign trade law.
Any damage to our company or delays in delivery resulting from the supplier’s failure to comply with these obligations shall be the responsibility of the supplier.
5.3
The supplier is obliged to state our order number on all shipping documents and delivery bills; if he fails to do so, delays in processing are unavoidable for which we are not responsible.
6. prices and terms of payment
6.1
The prices stated in the order are fixed prices plus the statutory value added tax applicable at the time; any price escalation or similar clauses of the supplier shall not apply. Unless otherwise agreed in writing, the shipping costs (including postage and packaging) as well as any customs and freight costs incurred shall be included in the prices.
6.2
We shall only recognize the costs for insurances which the supplier takes out or has to take out with regard to the goods in the event of prior written agreement.
6.3
We can only process invoices if they reflect the order number stated in our order in accordance with the specifications; the supplier shall be responsible for all consequences arising from non-compliance with this obligation.
6.4
Unless otherwise agreed in writing, we shall pay the remuneration (1) within 14 days of delivery (or acceptance of the other service) and receipt of the invoice with a 3% discount or (2) within 30 days of delivery or acceptance of the other service and receipt of the invoice strictly net, provided and to the extent that no counter rights exist on our part. In the event of delivery prior to the date specified in our order, the above periods shall not commence until the delivery date specified by us.
6.5
We shall be entitled to rights of set-off and retention to the extent provided by law.
7 Assignment, Retention of Title, Provision of Material
7.1
Claims against us may only be assigned with our written consent.
7.2
If we provide goods to the supplier, we shall retain title thereto. Any processing or treatment of the goods by the supplier shall be carried out on our behalf.
7.3
We shall retain title to machines and tools provided; the supplier shall be obliged to use the machines or tools exclusively for the manufacture of the goods ordered by us and to insure the machines or tools belonging to us against fire, water and theft damage at its own expense. He shall be obliged to carry out any necessary maintenance and inspection work in good time at his own expense. The supplier’s rights of retention to such machines and tools shall be excluded; however, the supplier shall be entitled to refuse to surrender them if and to the extent that unfulfilled orders on our part are to be processed by the supplier for which such machines and tools are necessary.
7.4
The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. If, however, we accept an offer of transfer of title by the supplier conditional on payment of the purchase price in an individual case, the supplier’s retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorized to resell the goods in the ordinary course of business even prior to payment of the purchase price with advance assignment of the claim arising therefrom (alternatively, the simple reservation of title extended to the resale shall apply). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.
8. date code
The date of manufacture (date code) of delivered goods may not be more than 12 months old at the time of delivery. We are not obliged to accept goods that are more than 12 months old or excess or short deliveries or partial deliveries that have not been agreed.
9 Liability for defects and other liability
9.1
If the delivery or service has a defect, we shall be entitled without restriction to the rights and claims determined by law for this case. With regard to the warranty period, clause 9.4 shall apply. In particular, we shall be entitled to choose the type of subsequent performance owed by the supplier. In cases of imminent danger, defects may be remedied by us ourselves without prior consultation with the supplier, without this affecting the supplier’s warranty obligation; in this case, the supplier shall bear the necessary expenses.
9.2
In accordance with the statutory provisions, the supplier shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us. In any case, those product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or have been included in the contract in the same way as these Terms and Conditions of Purchase shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, from the supplier or from the manufacturer.
9.3
Other statutory rights and claims (e.g. arising from culpa in contrahendo, impossibility, breach of duty, tort, etc.) shall also be reserved in full; any exclusion or limitation of such rights or claims for damages and other claims (including those arising from only slight negligence) contained in the Supplier’s General Terms and Conditions shall be ineffective; this shall also apply in particular to any shortening of the statutory limitation periods.
9.4
The limitation period for claims for defects shall be 36 months. If claims are asserted against us on the basis of strict liability in accordance with law which cannot be waived against third parties, in particular foreign law, the supplier shall be liable to the extent that he would also be directly liable. To this extent, the supplier shall indemnify us against third party claims at our request.
9.5
The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and give notice of defects, subject to the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection under external appraisal including the delivery documents (e.g. transport damage, wrong delivery and short delivery) or which are identifiable during our quality control in the random sampling procedure. If acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later shall remain unaffected. Notwithstanding our duty to inspect, our notice of defect shall be deemed to have been given without undue delay and in good time if it is sent within five working days of discovery or, in the case of obvious defects, of delivery.
9.6
The goods shall be inspected for their identity, quantity and for the presence of readily recognizable transport damage within two weeks from the date of their contractual delivery to us or to third parties designated by us; with regard to the quality assurance to be ensured by the Supplier pursuant to Section 7, including outgoing goods inspection, we shall have no further obligations to inspect the goods or to give notice of defects within the meaning of Section 377 of the German Commercial Code (HGB). An inspection only after the expiry of two weeks shall still be deemed timely within the meaning of Section 377 (1) HGB if the delay is due to important reasons for which we are not responsible. Any defects discovered shall be notified by us without delay.
10. supplier recourse
10.1
We shall be entitled to our statutory rights of recourse within a supply chain (supplier recourse pursuant to Sections 445a, 445b, 478 of the German Civil Code (BGB)) in addition to the claims for defects without limitation. In particular, we shall be entitled to demand from the supplier exactly the type of subsequent performance (repair or replacement delivery) that we owe to our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) shall not be restricted hereby.
10.2
Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2) and (3) of the German Civil Code), we shall notify the supplier and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the supplier shall be responsible for providing evidence to the contrary.
10.3
Our claims under supplier recourse shall also apply if the defective goods have been further processed by us or another contractor, e.g. by incorporation into another product.
11. producer liability
11.1
If the supplier is responsible for product damage, he shall indemnify us against claims of third parties to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties.
11.2
Within the scope of its indemnification obligation, the Supplier shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a claim by third parties including recall actions carried out by us. We shall inform the supplier about the content and scope of recall measures – to the extent possible and reasonable – and give him the opportunity to comment. Further legal claims shall remain unaffected.
11.3
The supplier shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 5 million per personal injury/property damage.
12. quality assurance
12.1
The supplier shall maintain a quality management system which is described in a supplier’s own quality management manual and which complies at least with the requirements of DIN EN ISO 9000 ff. The supplier shall provide us with evidence of its certification in accordance with this standard either by presenting a QM certificate or can provide evidence of compliance with its requirements by means of an audit carried out (also repeatedly) by us in its company. The supplier shall inspect and deliver the goods to be delivered to us in accordance with the rules specified by its qualified quality management system.
12.2
The Supplier shall inform us (1) of any changes to its quality management system (within the limits set out in Clause 12.1) and (2) of any changes to the quality of the goods ordered by us (within the contractually agreed specifications or in the run-up to the conclusion of a new contract compared with the quality at the time of the last order) in good time, in full and without being asked to do so, so that we can check their implications and comment on them.
12.3
We reserve the right to require the Supplier to conclude special quality assurance agreements if this appears necessary due to defective deliveries, additional requirements of our customers or changes in our own quality management system. We shall inform the supplier in good time of any deviations in quality that are discovered.
12.4
The supplier shall be obligated to maintain a business or product liability insurance as well as a recall costs insurance, the coverage amounts of which shall be reasonable in relation to the scope of the business relations and the concrete liability risk. Upon our request, we shall be provided with evidence of the existence of the insurance policies meeting these requirements. If we are entitled to further claims for damages, these shall remain unaffected.
13. property rights of third parties
The Supplier warrants that no third party rights are infringed in connection with its delivery within the Federal Republic of Germany and/or within the state in which the Supplier is domiciled and/or the state from which the Supplier delivers the goods to us. The supplier undertakes to indemnify us in full against any claims by third parties for infringement of their industrial property rights in connection with the supplier’s performance. The indemnification obligation relates to all expenses necessarily incurred by us from or in connection with the claim by third parties.
14 Compliance
14.1
Within the business relationship with us, the supplier undertakes not to offer or grant or demand or accept any benefits in business dealings or in dealings with public officials which violate applicable anti-corruption regulations.
14.2
The Supplier undertakes not to enter into any agreements or concerted practices with other companies within the business relationship with us which have the purpose or effect of preventing, restricting or distorting competition in accordance with the applicable antitrust regulations.
14.3
The supplier assures to comply with the respective applicable laws regulating the general minimum wage and to oblige subcontractors commissioned by him to the same extent. Upon request, the supplier shall provide evidence of compliance with the above assurance. In the event of a breach of the above assurance, the supplier shall indemnify us against claims of third parties and shall be obliged to reimburse any fines imposed on us in this connection.
14.4
The supplier shall comply with the respective statutory regulations on the treatment of employees, environmental protection and occupational safety and shall work to reduce adverse effects on people and the environment in its activities. For this purpose, the supplier shall establish and further develop a management system according to ISO 14001 within the scope of its possibilities.
14.5
In the event of a suspected violation of the compliance regulations, the supplier must immediately clarify possible violations and inform us of the clarification measures taken and, in justified cases, disclose the affected supply chain. If the suspicion proves to be justified, the supplier must inform us within a reasonable period of time about the internal measures it has taken to prevent future violations. If the supplier does not comply with these obligations within a reasonable period of time, we reserve the right to withdraw from contracts with him or to terminate them with immediate effect.
14.6
In the event of serious violations of the law by the supplier and violations of the provisions in clauses 14.1 to 14.4, we reserve the right to withdraw from existing contracts or to terminate them without notice.
15 Place of Performance, Jurisdiction, Applicable Law, Miscellaneous
15.1
The exclusive place of performance for delivery and payment obligations shall be Unna.
15.2
The exclusive place of jurisdiction for all disputes, including international disputes, shall be Unna. However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these Terms and Conditions of Purchase or a prior individual agreement or at the general place of jurisdiction of the Seller. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
15.3
All legal relationships between the Supplier and us shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Status: 01.07.2022