09/2020
1. Conclusion of contract
1.1 The following Terms and Conditions of Purchase (hereafter TCP) shall only apply to entrepreneurs as defined in Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law (hereafter “Suppliers”).
1.2 The following TCP shall apply to all deliveries and services supplied to us, unless otherwise agreed.
1.3 Our TCP shall apply exclusively; we shall not recognise any terms and conditions proposed by the Supplier that conflict with or deviate from our TCP, unless we have expressly agreed to their validity in writing. Our TCP shall also apply if we accept the Supplier’s goods without reservation in the knowledge that their terms and conditions of business are contrary to or deviate from our TCP.
1.4 Any agreements made between us and the Supplier for the purpose of performing a contract shall be recorded in writing in a contract.
1.5 The following GTCB shall also apply to future orders in the context of continuous business relations between us and the Supplier, without them having to be expressly mentioned again.
2. Conclusion of contract, offer documents
2.1 We shall not be charged for, or bound by, the preparation of offers and cost estimates by the Supplier.
2.2 Offers submitted to us must contain all of the relevant information needed for a technical and price assessment.
2.3 Delivery agreements (order and acceptance) and delivery call-offs, and amendments and supplements thereof, must be in writing; verbal and telephone orders require our written confirmation to be legally binding; this also applies to the subsequent amendment of orders already placed.
2.4 A confirmation by the Supplier which differs from our order constitutes a new offer, which requires our renewed written consent.
2.5 If the order or the delivery call-off is not confirmed in writing by the Supplier within five working days of receipt, we are entitled to revoke it without the Supplier being able to assert any claims.
2.6 We may require the Supplier to make changes to the design and execution of the contractual items, provided the changes are reasonable. The impact of this, in particular regarding changes in cost and delivery dates, shall be settled appropriately by mutual agreement.
2.7 We reserve ownership rights and copyrights on illustrations, drawings, calculations, samples, models, tools and other documents and files; these may not be made accessible to third parties without our express written consent. They are to be used exclusively for production based on our order; they must be returned to us without our requesting it once the order is completed, or at any other time that we ask for them. They must be kept secret from third parties; the provisions of Clause 9 shall also apply to this.
2.8 If the order contains materials previously provided and delivered by us, we reserve title thereto. The Supplier shall be obliged to treat materials that we own with care and insure them adequately at their own expense against fire, water and theft at the replacement value. If materials owned by us are processed or inseparably mixed on account of the order, we shall acquire joint ownership of the new items to the proportional extent that the invoice value of the goods relates to the invoice value of the other goods used.
2.9 The basis of our order is the agreed specifications of the goods it contains. In particular, our approvals of samples, specimens, descriptions or other examples of goods supplied in advance, as well as those specifications and product descriptions which, by designation or reference in our order or suchlike, are the subject matter of the contract, shall be deemed to be an agreement on quality. We must be notified of changes to the products, which may only be implemented once we have given our approval.
2.10 The Supplier undertakes to comply with any laws applicable in the EU and in the country of delivery, and to use the best available technology.
2.11 The Supplier undertakes to comply with the Code of Conduct of the Business Social Compliance Initiative (BSCI) (www.bsci-eu.org). In particular, the Supplier will ensure that children and young people are only employed in compliance with the regulations of the International Labour Organisation (ILO), the United Nations (UN) and national law. The Supplier shall also oblige its suppliers in the same way.
3. Delivery dates
3.1 Without it affecting our statutory rights to claim for delay, the Supplier must inform us in good time if they are not set to meet the agreed delivery dates. The delivery dates specified in the order are binding. Compliance with the delivery date shall be measured by receipt of the goods at the receiving location specified by us.
3.2 Early deliveries or services, and partial deliveries or partial services, require our prior written consent. In the event of an earlier delivery than agreed, we shall be entitled to refuse performance or to return the goods to the Supplier at the Supplier’s expense and risk. If the goods are not returned, we shall store them at our premises at the expense and risk of the Supplier. The agreed delivery date shall be decisive in terms of payment.
3.3 If the agreed deadline is not met due to circumstances for which the Supplier is responsible, we shall be entitled, at our discretion and without prejudice to further statutory provisions, to withdraw from the contract after the expiry of a reasonable period of grace, to procure a replacement from a third party and/or to claim damages for non-performance. We are entitled to compensation for any additional costs we have to cover due to delayed deliveries for which the Supplier is responsible.
3.4 If the Supplier fails to meet the agreed delivery date, we shall also be entitled to demand 0.5% for each calendar week commenced as a contractual penalty, but no more than 5% of the order value. The forfeiture of a contractual penalty does not preclude the claiming of further damages, to which the contractual penalty shall be added. If we accept the goods or services despite the delay, we may still demand the contractual penalty without having reserved the right to do so at the time of acceptance. The Supplier shall remain at liberty to prove lesser damage or that there was no damage.
3.5 The Supplier may only invoke the absence of necessary documents or supplies to be provided by us, if they send a reminder in writing and do not receive the things within a reasonable period of time.
3.6 Unconditionally accepting a delayed delivery or service does not mean we are waiving the rights to which we are entitled on account of delayed delivery or service.
3.7 We reserve the right to change the quantity of ordered deliveries or to order the temporary suspension of planned deliveries for operational reasons.
3.8 The Supplier is only entitled to deliver different amounts, or deliver part of the order, if we provide written approval.
4. Force majeure
4.1 Force majeure, including but not limited to riot, strike, war, flood, lockout, fire, epidemics, pandemics, plagues, confiscation, boycott, legal or official orders and restrictions and any other unforeseeable, unavoidable and serious events, shall release us from our obligation of acceptance/approval for as long as they last, provided that we are not responsible for the events. During such periods, the Supplier shall have no right to claim for damages or for delayed acceptance.
4.2 If such events affect the Supplier, the delivery deadline shall be extended to a reasonable extent. Once this extended delivery period has lapsed, both parties shall be entitled to withdraw from the contract. If it is in our interests to receive partial deliveries, we can also partially withdraw from the contract. Other statutory or contractual rights to withdraw from the contract shall remain unaffected.
4.3 In the event of any performance delay or non-performance by the Supplier, the Supplier shall promptly notify us in writing of the delay (including a description of the reason for the event or circumstances, an estimate of the duration of the delay, and a statement about remedial action being taken to resume performance and any interim allocation plans the Supplier may have for the delivery of the goods during the period of delay).
5. Shipping instructions and pricing
5.1 Delivery items are to be properly packed and shipped. Packaging and shipping regulations must be complied with.
5.2 Each delivery shall be accompanied by a delivery note. Furthermore, all delivery notes, order confirmations, invoices etc. must contain the date of dispatch, the order number, part and/or material numbers, delivered quantities, delivery date, delivery address and an exact designation of the delivery item. Any additional costs incurred due to non-compliance with the above regulations shall be borne by the Supplier; any delays in processing caused as a result shall not be our responsibility.
5.3 The price stated in the order is binding and, in the absence of a written agreement to the contrary, includes delivery to the place of performance, packaging, anything else supplied or performed by the Supplier, and any additional expenses.
5.4 Changes to prices, in particular increases in wage and salary costs or in the prices of raw materials or operating materials, are only allowed with our prior written consent.
5.5 Aside from paying the prices provided for in the order, we shall not be liable for any other costs or expenses incurred by the Supplier as part of the order, including any costs or expenses for estimates, site viewings, preparation of offers and projects, all of which shall be carried exclusively by the Supplier.
5.6 Goods are transported free of charge to the agreed place of delivery at the Supplier’s expense and risk. If carriage forward delivery is agreed in exceptional cases, we shall only pay the lowest available freight costs, unless we have stipulated a specific type of shipment.
5.7 Deliveries are to be done using our chosen freight company, if, as an exception, free delivery is not agreed.
5.8 Deliverieswill be accepted Monday to Friday between 7 a.m. and 12 noon and between 12.30 p.m. and 3 p.m.
5.9 We shall not be in default of acceptance on account of any delays for which we are not responsible,especially standing and waiting times.
5.10 We may return packaging materials to the supplier.
5.11 The Supplier is not entitled to have third parties (e.g. subcontractors) do the work it owes, without our prior written consent.
6. Transfer of risk
Irrespective of the pricing and the mode of transport, the risk shall pass to us when we accept the goods at the agreed delivery point. In the event of early, excess or partial delivery, section 3.2 shall apply instead.
7. Terms of payment
7.1 Unless otherwise agreed in writing, we shall pay the purchase price with a 3% discount within 14 days, calculated from delivery or assembly and installation and receipt of a proper invoice; or with a 2% discount within 30 days, calculated from delivery or assembly and installation and receipt of a proper invoice; or without deduction within 90 days after receipt of the invoice.
7.2 Invoices addressed to us must state the VAT valid on the date of delivery, the order number shown in our order and the Supplier’s tax ID. Invoices must be sent to us, with duplicates, on the day of delivery at the latest. The Supplier shall be responsible for any consequences arising from non-compliance with this duty, unless they can prove that it is not responsible for them.
7.3 We reserve the right to choose the method of payment. In the case of payment by cheque or bank transfer, the legitimacy of the payment depends solely on the cheque or transfer order being received by the recipient or the bank by the payment deadline.
7.4 In the case of advance payments, the Supplier shall, at our request, provide appropriate security, such as a directly enforceable guarantee from a major German bank.
7.5 We shall be entitled to exercise offsetting and retention rights – subject to other provisions in these TCP – to the extent provided by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims against the Supplier arising from incomplete or defective performance.
7.6 Invoicesissued by the Supplier which deviate from what was actually delivered or done shall only be considered to have been received by us once they have been corrected to produce a proper invoice.
7.7 Paymentsby us shall not constitute recognition of the delivery or service as being in accordance with the contract.
7.8 We do not owe any interest payable after the due date. The statutory provisions shall apply to delays in payment.
8. Retention of title
Retention of title by the Supplier shall not be recognised, in particular retention of title that is extended, passed-on or extended for further processing.
9. Confidentiality, data privacy
9.1 The Supplier undertakes to keep confidential any information supplied by us in connection with an order, including product and process drawings, product specifications and any documents prepared by the Supplier for us in connection with an order (‘confidential information’), and to use such information solely for the purpose of fulfilling the order. Confidential information may not be reproduced, used commercially or made available to third parties without our prior written consent. This confidentiality obligation relates to the content of all contracts with us, especially ones regulating the development of new products and subsequent product development.
9.2 The Supplier may only make confidential information available, including in its own business, to those persons who must necessarily be involved in fulfilling the order and whom the Supplier has also obliged to maintain confidentiality. The Supplier undertakes to impose equivalent confidentiality obligations on this group of persons, insofar as this has not already been done. The Supplier shall also take all reasonable precautions to prevent third parties from gaining access to the work results or the confidential information obtained from us. The Supplier shall be liable for any breach of confidentiality obligations by a third party to whom it has made confidential information available.
9.3 The obligations of Clauses 9.1 and 9.2 shall not apply if confidential information is demonstrably generally known, becomes generally known through no fault of the Supplier, was lawfully obtained from a third party, or was already known to the supplier.
9.4 The Supplieris not entitled to use confidential information for examination, dismantling or testing (‘reverse engineering’).
9.5 Publicising the business relationship with us and other statements to the public or authorities regarding this business relationship are only permitted with prior written consent, unless these statements are required due to mandatory legal regulations.
9.6 This confidentiality obligation shall continue to apply for a period of five years after termination of the delivery or business relationship, subject to the following Sentence 2. If the confidential information is a business secret, then the obligation to maintain secrecy is indefinite. It shall also apply to documents received when initiating a contract as specified in Clause 9.1, even if the contract is not concluded, but with the proviso that the obligation to secrecy begins when it becomes clear that contractual negotiations have failed.
9.7 All documents, files, etc., regardless of whether they are in written, electronic or any other form, and which contain confidential information, shall be returned in proper condition or destroyed after the end of the delivery and business relationship; this shall be done without being requested or at any time upon our request, unless legal storage obligations or storage in a backup system for security purposes prevent their return or deletion.
9.8 The Supplier shall ensure that anyone entrusted with the performance of the contract as part of the delivery and business relationship complies with the statutory provisions on data protection.
10. Warranty
10.1 The statutory provisions on material defects and defects of title shall apply unless otherwise stipulated below.
10.2 Our obligation to inspect is limited to defects that emerge during incoming goods inspections with external monitoring, including delivery papers, or during our random quality control sampling (e.g. transport damage, incorrect or short delivery). We shall notify the Supplier of any such obvious defects in the delivery or hidden defects as soon as they are discovered in the ordinary course of business. The Supplier therefore waives the right to object to delayed notification of defects in this respect.
10.3 We are entitled to statutory warranty rights in full. We shall have the right to choose the way in which defects are made up for. In such cases, the Supplier shall be obliged to bear all the expenses of rectifying the defect or making a replacement delivery, including any dismantling and installation costs. The Supplier shall be entitled to refuse the type of cure chosen by us, under the conditions of Section 439 Paragraph 4 BGB. We expressly reserve the right to claim damages.
10.4. The limitation period is 36 months, calculated from the transfer of risk, unless the mandatory provisions of Sections 478, 634a BGB apply and unless the statutory warranty period is longer.
10.5 If the Supplier does not comply with a request for rectification of defects or replacement delivery immediately, or after 7 days at the latest, or if the Supplier is unable to do this, we shall be entitled to withdraw from the contract and/or to claim damages in lieu of performance, and to return the goods to the Supplier at the Supplier’s risk and expense and to make other arrangements. The Supplier shall bear any necessary costs arising from this.
10.6 We may return goods not delivered in accordance with the contract at the Supplier’s expense and risk.
10.7 For parts of the delivery that have been rectified or repaired within the warranty period as part of the Supplier’s rectification duty, the warranty period shall recommence once the Supplier has fully satisfied our rights to rectification.
10.8 In urgent cases, if the immediate rectification of defects is justified by a special interest on our part; or if it is to be feared that the rectification of defects by the Supplier would result in delays which would make it more difficult for us to fulfil our duties towards our contractual partners; or if the Supplier’s remedy would incur more costs than our remedy – then we are entitled to carry out, or have carried out, the necessary rectification of the defect or of the defective delivery or service ourselves, or by third parties, to the necessary extent, at the expense of the Supplier, without prior notification (self-performance). In such cases, we are also entitled to procure defect-free goods or services from third parties (replacement procurement). The Supplier shall bear the costs of self-performance or replacement procurement.
10.9 If a defect in the delivery is only discovered after further processing or further delivery of the goods supplied by the Supplier, the Supplier shall be obliged to bear any necessary costs associated with the replacement or rectification of the defective goods, in particular inspection, transport, travel, labour and material costs.
10.10 If the delivered goods are processed into an end product which is resold, we shall be entitled to recourse against the Supplier in accordance with Sections 445a, 445b and 478 of the German Civil Code in the event of claims by our customers.
10.11 The Supplier guarantees that the delivery or service is free of defects; that it is of the agreed quality and quantity; and that the delivery or service complies with the intended use, the latest technical developments, and the relevant provisions of the authorities and trade associations, in particular the applicable accident prevention regulations and any other quality and safety standards that apply at the time of delivery.
10.12 In the event of suspected or actual insolvency of the Supplier, we shall be entitled to retain an appropriate security, which shall be at least 10% of the agreed price, until the end of the limitation period for warranty claims.
10.13 The Suppliershall assign to us any warranty claims against its own suppliers. We are entitled to disclose this assignment if the Supplier becomes insolvent. Furthermore, we are entitled to withdraw from orders for anything not yet delivered by that point in time.
10.14 The Supplier shall indemnify us against any claims by third parties that are based on defects in what the Supplier produces or does. The Supplier shall bear any costs arising from defects, including any recall costs.
11. Incoming inspection, excess deliveries and shortfalls, quality assurance
11.1 The values determined in our incoming goods inspection are considered the authoritative quantities, weights and dimensions.
11.2 The Supplier is obliged to carry out quality control during production and to perform outgoing goods inspections, and must check the quality of the things it delivers with appropriate thoroughness.
11.3 The Supplier shall carry out quality assurance of a suitable type and scope, and which corresponds to the latest state of the art, and shall provide us with evidence of it upon request. The Supplier shall conclude a quality assurance agreement with us, insofar as we deem this necessary. The Supplier shall prepare appropriate inspection and test reports relating to the production of the order, and shall retain these documents for a period of ten years after the fulfilment of the order, unless we stipulate otherwise; they shall make these documents available to us upon request. The Supplier shall grant us the necessary access to its premises for the purpose of quality auditing, after prior consultation.
12. Infringement of property rights
12.1 The Supplier shall be liable for ensuring that patents and other third party industrial property rights are not infringed by the use of the items delivered, and that they are free from third party rights. They shall indemnify us against any claims made against us or our customers for infringement of a domestic or foreign industrial property right or other right, and shall reimburse us for any expenses (including court costs and lawyers’ fees) necessarily incurred by us as a result of or in connection with third party claims.
12.2 If the sale and/or use of the delivery items is prohibited, or if we believe it is likely to be prohibited, the Supplier shall, at our discretion and exclusively at their own expense, either procure for us the right to continue to use the goods; or replace them with equivalent goods that do not infringe third-party property rights; or modify the goods in such a way that they no longer infringe third-party property rights; or remove the goods and refund the purchase price including transport, installation, removal and other associated costs.
13. Liability, product liability, indemnification, liability insurance obligation
13.1 The Suppliershall be liable to us in accordance with the statutory provisions.
13.2 If claims are made against us by third parties on account of a violation of official safety regulations or on the basis of domestic or foreign product liability regulations or other laws due to a defect in our product, the Supplier shall be obliged to indemnify us against such claims upon first request, if and to the extent that the damage was caused by a defect in the contractual product or service delivered by the Supplier. This damage also includes the costs of a precautionary recall. However, in cases of fault-based liability, this only applies if the Supplier is at fault. The Supplier shall bear the burden of proof, if and to the extent that the cause of the damage lies within the Contractor’s area of responsibility. In such cases, the Supplier shall bear any costs and expenses, including the costs of any legal action or recalls. We will notify and support the Supplier in the legal defence, and they shall notify and support us. In all other respects, the legal provisions shall apply.
13.3 The Supplier is obliged to take out business liability and product liability insurance, including recall risk, with an insured sum of at least €5 million per incident of personal injury / property damage, and to maintain it at its own expense continuously and for at least three years beyond delivery, and to submit the insurance policy to us for inspection on request. If we are entitled to further claims for damages, these shall remain unaffected.
14. Transfer of rights
A delivery contract concluded with us may not be transferred in whole or in part to third parties without our written consent. Claims against us may only be assigned to others with our written consent. This shall not apply if the legal transaction which gave rise to the claim is a commercial transaction for both parties, or if the Supplier is a legal entity under public law or a special fund under public law.
15. Place of performance; jurisdiction; applicable law
15.1 The place of performance for deliveries and services is the delivery address stated by us.
15.2 If the Supplier is a merchant, a legal entity under public law or a special fund under public law, our registered office shall be the exclusive place of jurisdiction. However, we may also sue the Supplier at their general place of jurisdiction.
15.3 All legal relations between the parties shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and international private law.
16. Final provision
Should any provisions of these TCP be or become legally invalid, this shall not affect the validity of the remaining provisions.
Rieber GmbH & Co. KG
Hoffmannstrasse 44
72770 Reutlingen
Germany
Tel.: +49 (0) 71 21 518-0
Fax +49 (0) 7121 518-303
E-mail: info@rieber.de
www.rieber.de
Date: 09/2020
