These Terms and Conditions together with any separate contractual agreements set out in writing shall govern all our orders for goods, work and services. Any differing terms and conditions of sale, delivery and payment that the supplier may have are hereby expressly rejected. They shall not even apply if they are contained in an acknowledgement of one of our orders and we raise no objection to them.
2. Orders and acknowledgements of orders
2.1 Our order shall be deemed accepted if the supplier raises no objection within two weeks of the order being sent. The scope of the order is that set out in our purchase order (including enclosures) even if it is not countersigned by the supplier. Any subsequent additions ordered orally or by telephone at a later date shall not be effective until we have confirmed them in writing.
2.2 The supplier shall countersign the order without making any changes and return it to us. We reserve the right to revoke the order if we do not receive the acknowledgement of the unaltered order within two weeks of the order date. The supplier must notify us in writing of every technical modification vis-à-vis earlier deliveries or the details set out in offers and catalogues before accepting the order. We reserve the right to decide not to form the contract in the case of substantial technical modifications or to rescind the contract if the supplier has omitted to notify us in good time.
2.3 The commercial clauses shall be interpreted according to the INCOTERMS in the version applicable on the date that the contract was formed.
3. Prices, invoices and terms of payment
3.1 The agreed prices shall be fixed net prices plus the applicable value added tax and shall be quoted free to the agreed destination and inclusive of packaging and freight. Reservations concerning price increases are only valid with our written consent. The delivery of excess or insufficient quantities shall only be regarded as being in accordance with the contract if we expressly confirm this in writing.
3.2 We may choose to pay the agreed prices either 30 days net with a 3 % cash discount or 90 days net, calculated from the due date and after the receipt of a properly issued invoice and the complete delivery of all goods, work and services. The time allowed for payment shall not start to run if invoices have not been properly issued or are incomplete.
3.3 An invoice must not cover several orders and must quote our order number and part number. If the supplier is to provide tests of materials, test protocols, quality documents or other documents, the goods and services shall not be deemed complete until these documents have been received. The supplier must submit the certificates of origin that we require by no later than the time that the invoice is submitted. They must be fully filled in and signed. The same applies to certificates regarding value added tax in the case of goods, work and services delivered abroad and within the European Community.
3.4 We may also deduct a cash discount if we exercise the right of setoff or retain a reasonable amount of the payment due to defects. The time allowed for payment shall not start to run until all defects have been rectified. Payment shall not mean that the goods, work and services have been recognised as being in accordance with the contract.
3.5 If down payments are agreed we may demand an unconditional bank guarantee covering the amount in question.
3.6 We have the right to set off all claims to which we or a domestic affiliated company in our group (in the meaning of German law on stock corporations) are entitled against claims arising from the order. The supplier will be provided with a list of these companies on request.
4. Deadlines and overstepping deadlines
4.1 The dates given in the order for the provision of the goods, work and services are binding. The criterion for judging whether consignments or subsequent improvements/deliveries to cure a breach of contract have been received in good time is the date of receipt at the reception point we indicate. In the case of goods involving installation or assembly and in the case of work and services the date of acceptance shall be authoritative. If the deadlines are overstepped, the supplier shall be in default without a reminder being required.
4.2 If any deliveries, work and services or subsequent improvements/deliveries to cure a breach are evidently delayed, we must be notified immediately by fax of the reason for the delay and how long it will last and asked for a decision. To compensate us for each delay we shall have the right to require that the supplier chooses the fastest possible shipping method at no extra charge. At the end of a reasonable extended deadline we shall have the right to rescind the contract or, if the supplier can be blamed for the delay, to claim damages. This shall not affect further claims that we may have.
4.3 If the agreed deadline period is exceeded for reasons for which the supplier is responsible, we shall be entitled to demand liquidated damages for every week started to the amount of 1 %, but no more than 10 % of the respective value of the order or call. This shall not affect further claims that we may have. We can demand liquidated damages up to the final payment, or offset against due payments, if the performance has been accepted without reservation.
5. Delivery, shipping and packaging
5.1 In the case of deliveries ex works and ex sales warehouse our Terms and Conditions of Delivery shall apply. The supplier must ensure that it takes cognisance of these terms and conditions.
5.2 Unless otherwise agreed, delivery shall be effected free of charge and at the supplier's expense to the reception point we indicate.
5.3 We have the right to refuse to accept deliveries which have not been properly effected/ notified. This shall be at the supplier's expense.
5.4 Deliveries shall only be effected during our normal hours of business. The supplier must ensure that it takes cognisance these hours of business.
6. Passage of risk and transfer of ownership
6.1 In the case of deliveries the risk of the accidental destruction and the accidental deterioration of the goods shall be borne by the supplier until they have been received at the specified reception point. In the case of deliveries with installation or assembly and in the case of work and services the risk shall pass on acceptance. If a consignment is returned due to a case of warranty, the risk shall pass to the supplier on the completion of reloading.
6.2 We shall become the owners of the goods on the completion of the unloading process at the reception point and once the delivery note has been handed over.
7. Examination of outgoing and incoming goods, time allowed for giving notice of defects
Immediately after the receipt of the goods we will verify whether they have been delivered in the quantities ordered, whether they are of the type we ordered and whether any externally identifiable transport damage has occurred and whether there are other defects. We will immediately give the supplier notice of such immediately identifiable defects. Hidden defects will be notified within 14 days of being discovered. We shall have no further obligations to the supplier above and beyond the examination of the goods and giving notice of defects.
8. Liability for defects
8.1 The supplier warranties that its goods, work and services will be free of defects, fit for the agreed purpose, of the agreed quality and that all guarantees given in the order will be fulfilled. In the case of parts subject to wear the supplier at least warranties that such parts will be free of defects for the usual number of hours of operation, but for at least 12 months (guarantee of durability). The supplier guarantees that the goods, work and services it supplies will be in conformity with technical standards, the rules and guidelines stipulated by the legislator, the supervisory authorities, the employer's liability insurance associations (Berufsgenossenschaften) and the VDE with regard to workmanship and design, accident prevention and environmental protection. The supplier furthermore warranties that it has successfully carried out all environmental impact assessments prescribed for the class of product in question.
8.2 Unless a longer period is prescribed by law, the warranty period shall be 24 months from the date that the work or the system as a whole is accepted by our customer, but it shall be no longer than 36 months from the date of the passage of risk. For newly delivered parts and improvements in order to cure a breach the warranty period shall be 24 months from the date of that the spare part is delivered or fitted or from the date that the improvements are completed. The warranty period shall be extended by times of standstill caused by defects and remedial work carried out by the supplier.
8.3 If defects are found before or at the time of the passage of risk or during the period specified in clause 8.2, we shall either request the supplier to deliver an item that is free of defects or to rectify the defects to cure the breach of contract. This also applies to consignments where the examination was limited to samples. Our choice shall be made at our reasonable discretion. All costs and expenses caused by the subsequent delivery or improvement (including the costs of fitting items into our products and removing items from our products, the provision of the necessary fitters or assistants including travelling expenses and the cost of transport and disposal) shall be borne by the suppler. Defective consignments shall be returned at the supplier's risk and expense.
8.4 Unless otherwise agreed, the supplier must immediately examine the goods that we have returned and claimed to be defective and then inform us of the results. A claim that the goods are defective may also be implied. The supplier' must notify us of the result by no later than four weeks after the receipt of the returned goods. If no such notice is given, it will be assumed that the matter falls within the scope of the warranty at the supplier's expense.
8.5 In urgent cases (e. g. in order to avoid delay on our part or to avert disproportionately serious damage), in the case of a delay on the part of the supplier in effecting delivery or making a subsequent delivery/improvements, the unreasonableness of such improvements or a refusal on the part of the supplier to immediately start or carry out the improvements we shall have the right to rectify the defects ourselves at the supplier's expense. In as far as it is possible and reasonable we will first notify the supplier and ask the supplier to be present. The provision of a replacement shall not affect the supplier's obligations under warranty.
8.6 If the provision of a replacement proves to be unsuccessful, impossible or unreasonable, or if the supplier delays or is unsuccessful in making a subsequent delivery/improvements we may choose to either rescind the contract or reduce the delivery price. This shall not affect further statutory claims such as those based on the failure to honour guarantees and claims for damages.
9. Spare parts
For a period of 10 years from the date of delivery the supplier guarantees the availability of all assembly groups and spare parts that are essential for the functioning of the goods and services. If the supplier breaches this obligation, we shall have the right to build a replica of the part that is no longer available at the supplier's expense. The supplier must give us every support in this respect, such as providing us with manufacturing drawings and acquiring any proprietary rights that may be necessary.
10. Product liability
10.1 The supplier shall indemnify us against all claims for damages made due to a product defect that is the supplier's responsibility. On request the supplier must provide us with evidence of product liability insurance with sufficient coverage.
10.2 If no such evidence is produced or if the supplier refuses to make a reasonable increase in the sum insured as we suggest, we shall have the right to rescind the contract and to claim damages.
11. Industrial property rights
The supplier guarantees that no industrial property rights, including copyrights, will hinder the contractually agreed delivery and our use of the item ordered. If there is any infringement of third-party rights this shall entitle us to rescind the contract and claim damages from the supplier (including the costs of legal defence and litigation costs). The supplier must indemnify us against all claims made by the owners of the rights. If it should be possible or reasonable, we shall have the right to demand that the supplier modifies the delivery item in a way that we can reasonably accept so that it no longer infringes third-party rights. We are also entitled to acquire all the necessary exploitation rights at the supplier's expense.
12. Drawings, documents, confidentiality
12.1 We retain full title to all drawings, standard specification sheets, printing copies, gauges, models, moulds, samples, outlines, tools and all other items provided in order to prepare and execute the order, along with the knowledge they embody. They may not be passed on to third parties nor used for purposes other than those of the contract without first obtaining our explicit written consent. They must be kept strictly confidential and returned immediately on request. The supplier must treat them with care, keep them safe and insure them against damage and loss at the supplier's own expense. Any repairs and alterations first require our explicit written consent.
12.2 We reserve all rights to drawings and products prepared according to our specifications. The ownership of tools and other manufacturing aids that we have paid for shall pass from the supplier to ourselves once payment has been made.
13. Assignment of claims
The assignment of payment claims arising from this contract shall first require our explicit written consent.
14. Place of performance
The place of performance for deliveries, work and services is the place where the items are used. The place of performance for payments is the place where we have our principal place of business.
15. Place of jurisdiction, applicable law
15.1 The sole place of jurisdiction for all legal disputes, including disputes concerning bills of exchange and cheques, is Nuremberg.
15.2 The relationship between the Contracting Parties shall be governed by the law of the Federal Republic of Germany with the exception of the provisions of international private law (IPR). It is explicitly agreed that the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (Vienna Convention/CISG) shall not apply.
16.1 The engagement of subcontractors or sub-suppliers first requires our explicit written consent. This consent shall have no bearing on the supplier's liability.
16.2 We will store the data needed in order to process the order in a computer system. The supplier agrees to this on accepting an order.
16.3 The supplier must treat the contract as confidential and may only cite this contract as a reference contract if we have first given our explicit written consent.
16.4 The supplier must notify us immediately if all or some of its goods and services are subject to import or export restrictions under German law or the law of any other jurisdiction.
16.5 The supplier must notify us immediately in writing in case of changes of the manufacturing process, in case of changes of the software, in case of changes of subsuppliers and in case of changes of the place of production.