General Conditions of Purchase
1. Closing of Contract
- Our orders are effected on the basis of these General Purchasing Conditions. We do not recognize any contrary conditions, even when we have not explicitly contradicted them. Even if we accept deliveries/services without ex-pressing reservations, in no case can assumptions be made that we have accepted these conditions of delivery. These General Purchasing Conditions will be valid for all future contractual relations.
- If our order has not been accepted, in writing, within 5 (five) working days of receipt, we are entitled to cancel. If the Supplier states a delivery time, in their order confirmation, which deviates from that named in the order, then the delivery time named by them shall be regarded as approved, if we have not made an objection within 5 (five) calendar days. This is not valid with fixed agreements. If the Supplier accepts our order with a deviating delivery time, he is obliged to clearly notify us of this deviation.
- Only orders submitted in writing are legally binding. Orders made verbally or by telephone,
- on-call deliveries, as well as any alterations and supplements can be effected through data transmission, or through machine readable data carrier. E-Mails which have been enciphered in accordance with the Digital Signature Act correspond to the written form.
- Restrictions to the legal powers of attorney of handling agents, and agents with powers of negotiation and conciliation who represent the Supplier, and/or the limitation of liability for risks from the implied and ostensible authority of persons, representing the Supplier, in their conditions of sale and/or conditions of delivery are not terms of the contract.
- Remuneration for attendance or for working out tenders, projects, designs or trial deliveries. will not be granted. Offers submitted are to be firm and free of charge. They should comply with our enquiries. Alternatives would, however, be expedient. Any deviations from our enquiries are to be clearly distinguished.
- The Supplier is obliged to treat our enquiries, any offer resulting thereof; as well as agreements entered into; in the strictest confidence. He may only reveal a business connection with us in any publication, e.g in advertising material and reference lists, after first obtaining our written consent.
- The contracting partners pledge themselves to treat as trade secrets all commercial or technical details known to them through their business relationship, which are not in the public domain. Subcontractors are to pledge themselves accordingly. Should one of the contracting partners detect that confidential information has gone missing, he is to inform the other contracting partner immediately. The pledge of secrecy also remains in force after the settlement of this contract. It only becomes void when, and in so far as, the manufacturing intelligence contained in the entrusted data becomes general knowledge in the public domain.
- We can request changes to the items to be supplied even after the closing of contract, as long as this is reasonable to the supplier. With these contract changes the costs as well as the delivery dates are to be appropriately taken into account.
- Commercial clauses are to be construed in accordance with the incoterms valid at the closing of contract. On request, the Supplier will make available to us, without delay, proof of origin complete with all requisite data and duly signed. In accepting this order, the Supplier engages to permit the examination of proof of origin and suppliers declaration by the customs administration, and, furthermore, to supply any requisite data, and to produce any required official confirmations (information sheets). Furthermore, the Supplier engages to compensate us for any damages incurred arising from the non-recognition of nationality by the relevant authority. The Supplier will inform us, without delay, if a delivery becomes partly or wholly subject to export restrictions under German or any other law.
2. Notes on ordering, models, designs, instructions
- The order number, the date of order and our identification number of the ordered parts are to be repeated on all communications, consignment notes, invoices etc.
- We reserve rights of ownership and copyright in relation to models, designs, samples and other data pertaining to the orders, which have been temporarily entrusted to the Supplier. The supplier is obliged to surrender to us this data immediately on demand, as soon as his contractual obligations to us have been fulfilled. The supplier is not allowed to make this data accessible to a third party.
- Goods, models, samples, designs or other data pertaining to our orders that have been produced according to our specifications may not be utilized by other companies. We reserve ownership and proprietary rights over them. The supplier may not make them accessible to a third party. At any time, after completion of the order, he is obliged to return them immediately on demand.
- The Supplier is obliged to make available to us, free of charge, all instructions and data necessary for the usage of the contract goods in the quantity named in the order.
3. Prices, Forwarding, Packing
- The agreed prices are binding, additional demands of any kind are not admissible. Costs for packing and transportation to the delivery address named by us, as well as customs formalities and duty are included in the price. The agreement on the place of delivery will not be affected by the category of the quotation. We will only take delivery of the quantities or amount of units ordered. Surplus or deficit deliveries will only be permitted after a previous agreement has been negotiated with us.
- The forwarding will occur at the risk of the Supplier. The risk of any deterioration, including accidental loss, remains with the Supplier until delivery to our requested delivery address. In cases where we are to defray the costs of the transportation, transport insurance or packing, the Supplier is obliged to choose for each the lowest priced trans-portation, transport insurance, or type of packing.
- The Supplier is not permitted to provide transportation insurance cover for the delivery goods. We arrange the transportation insurance for our products.
- The Supplier is to take back all packaging, especially transport packaging, covered by legal regulations. The goods are to be packed so that damages during transportation are avoided. Only the packaging materials necessary to accomplish this aim are to be used. Only environmentally friendly packaging materials may be used.
4. Submitting Invoices and Payment
- Invoices are to be duly submitted to the accounts department with all appropriate documents and data, under separate cover, after delivery has been effected. Accounts not sent in due form will only be considered by us as validly received from the time it has been rectified.
- Payment follows in accordance with usage, that is either within 14 (fourteen) calendar days with 3% trade discount or after 30 (thirty) calendar days net, calculated according to delivery/performance and receipt of invoice.
- In so far as there is an agreement that certificates relating to material controls are to be submitted, these form an integral part of the delivery and are to be sent either with the delivery, or they are to be sent separately within 2 (two) working days of the goods being forwarded. The term of payment for invoices will only commence with the arrival of the agreed certificates.
- On faulty or incomplete deliveries we are entitled to hold back a proportion of the payment until the delivery has been completed according to regulations. If payment for a faulty or incomplete delivery has already been effected, we are entitled to hold back other due payments to the value of the effected payment.
5. Delivery dates, default on delivery, Acts of God
- The agreed delivery dates are binding and must be strictly observed. Decisive for compliance with the delivery date or the delivery deadline is the arrival of the goods, or the satisfactory supply of services, at the delivery address named by us or the acceptance of the delivery in due time. Provided that the Supplier designates or confirms the delivery deadline as “probable”, “approximate” or similar, a period not exceeding 8 (eight) calendar days may be allowed between the stated delivery date and the actual arrival of the delivery. The outright acceptance of the belated delivery does not signify a waiver to claims for damages.
- If the Supplier becomes aware of any factors which indicate that an agreed delivery date cannot be met, he is to inform us immediately, and of his own accord, giving us the reasons and the anticipated length of the delay.
- If the supplier defaults on a delivery, then we have a right to legal redress.
- If the products are not delivered on time, or after an extended deadline which we have allowed expires, we are authorized at our own choice to demand compensation due to non delivery, and/or to obtain replacements from a third party or to apply withdrawal regulations. Additional expenses, especially in the event of cover purchases, are to be paid by the Supplier.
- The supplier can only plead that necessary documents were absent, which were to have been delivered by ourselves, when he requested the documents in writing and did not receive them within a fair and reasonable time limit.
- Acts of God and industrial disputes release the contracting partner from their obligations for the duration of the disturbance, and to the extent of their effects. The contracting partner is obliged, within reason, to immediately pass on all important information, and, acting in good faith, to adapt to the different circumstances. We are completely or partly released from any obligations to, or from accepting the delivery/service. We are entitled to withdraw from the contract, when the delay caused by the Act of God and/or the industrial dispute makes the delivery/service no longer economically viable to us.
- Before the delivery deadline expires, we are not obliged to accept the delivery. If the goods are delivered before the delivery deadline we are entitled at our own choice to return the goods at the expense of the supplier or to store the goods at the expense and at the risk of the supplier. In cases of premature delivery we reserve the right to make the payment only on the day of payment agreed.
- We will only accept partial deliveries after explicit agreement. With previously agreed partial deliveries the remaining quantities are to be itemized.
6. Guarantee, safety data sheets, time period for claims, remedy of defects, rescission, reduction, claims for damages, defective batch, own right to remedy defects, erroneous counselling, cause analysis, quality protection, product liability
- All deliveries/services provided to us must be free from quality defects and defects in title. They must conform with the agreed upon quality and be of the latest technological standards. They must also comply with all relevant European and German legal regulations, as well as the rules and guidelines laid down by authorities, trade associations and technical organisations. Above all, the deliveries/services provided must fulfil industrial safety regulations, the requirements of equipment and product safety laws, the accident and fire prevention regulations and the environmental safety regulations. If the Supplier has any misgivings regarding our operational procedures, he is to inform us, in writing, immediately.
- The supplier is obliged to ensure that his own deliveries/services, as well as deliveries and additional services from a third party, always use environmentally friendly products and procedures, where economically and technically feasible. The supplier is liable for the environmental soundness of the delivery goods and their packaging materials, and for all consequential damages that may occur due to the violation of his legal waste disposal obligations. Up to date safety data sheets for his delivery are to be handed over to us, at the latest, with the delivery. The supplier indemnifies us against all third party claims for damages, in the event that he delivers the safety data sheets to us either late or not at all. The same also applies for all later alterations. Should the Supplier culpably provide us with a delivery/service which is liable to a third party claim in Germany, or; insofar as the Supplier is acquainted thereof; the country of destination, then he will be obliged to compensate us for any resulting pecuniary losses.
- We will submit a written report to the Supplier immediately on any apparent defects in the delivery/service, as soon as they have been ascertained within a reasonable time period, at the latest, however, within 5 (five) calendar days after the arrival of the delivery to us. Should apparent defects be ascertained in a product which the supplier has sent directly to our customer at a destination named by us, then the time period for claims only begins with the delivery of the goods to this destination. The same applies when the goods have been sea-packed. We are only obliged to make random samples on bulk supplies. Should they reveal that an amount of the goods do not meet the contractual or legal requirements, and, that furthermore, this makes the delivery no longer economically viable, then we are exonerated from making any further inspections, and, on the basis of the completed random sampling results, we are permitted to place the entire delivery at the disposal of the supplier. With multiple deliveries, we are at liberty to choose whether to continue with the contractual relationship, or to decline acceptance of further deliveries due to the defects in the partial delivery.
- During the warranty period the Supplier undertakes to remove or remedy all defects reported, these include the non-appearance of guaranteed data and the lack of guaranteed capacities. On demand the Supplier will remedy defects immediately, either through replacement delivery, or by the remedy of defects, at our own choice. This will be effected without remuneration and the Supplier will also incur all additional expenses. He will especially bear all expenses arising from the ascertainment and remedying of defects insofar as they devolve upon us. In particular: investigation costs, disassembly and reassembly costs, transport costs, mileage, labour and material costs. If necessary, the Supplier must undertake to work multiple shifts, and pay overtime or holiday pay rates to remedy defects or effect a new delivery, should this be required by us due to compelling operational grounds and within reason. Following the unsuccessful expiry of a time limit appointed by us for remedying of defects or replacement delivery, we also have the legal rights to withdrawal, voidance and compensation.
- Should the Supplier fail to meet the obligations of his warranty, after we have set a fair and reasonable deadline, we are entitled to make the necessary arrangements ourselves, or have them made by a third party, at the expense and risk of the Supplier and without affecting his other statutory obligations. In urgent cases we can, with having obtained the agreement of the supplier, undertake to remedy the defects by ourselves, or through a third party. We are permitted to remove minor faults without previous agreement – in fulfilment of our damage limitation obligation – at the expense of the supplier and without affecting his warranty obligations. The same applies when unusually high damages are threatened.
- The duration of the warranty time is 2 (two) years, unless stated otherwise. It commences with the delivery of the items to be supplied to us, or to a designated third party at a delivery address we have appointed. The warranty period for appliances, machines and plant commences on the date of acceptance, which will be designated in our written declaration of acceptance. Should the acceptance be delayed, not through the negligence of the supplier, then the duration of the warranty time is 2 (two) years after the delivery item has been made available for acceptance. The warranty period for spare parts will be 2 (two) years after installation/putting into operation and terminates 4 (four) years after delivery at the latest. The warranty period for buildings is in accordance with the legal regulations.
- While the legitimacy of our complaint is being deliberated, the warranty time of the affected plant/installation part will be interrupted from the notification of the stoppage until the conclusion of negotiations or until the completion of the repair work. When the Supplier, within the scope of fulfilling his obligations, delivers a replacement part or a repaired part, the limitation period for the delivered part will commence to run anew from its installation/acceptance. This provision is not applicable when a minor defect in a delivered part, etc. can be removed by replacement delivery or remedy of defect without a significant expenditure in time and costs.
- The warranty claim will lapse 6 (six) months after a notice of defects has been made within the warranty period, not before its end, however.
- The supplier guarantees for his deliveries according to the legal regulations effective in Germany. If we are held liable according to German law or the law of another country for violating mandatory safety regulations or product liability provisions or guarantees, the supplier must compensate for the sustained losses if his deliveries were defective and have caused the damage. The damage shall also cover the costs of a precautionary recall of the articles in question. So far as is technically possible and economically viable, the Supplier will mark the delivery items in such a way that they are lastingly recognisable as his products. The Supplier will conduct quality assurance commensurate to the type of article and volume and in keeping with the most recent technological standards. On request, he shall provide us with proof that this has been done. The Supplier will enter into a suitable quality assurance agreement with us if we believe it to be necessary. In addition, the Supplier must be sufficiently covered by product liability insurance, including the risk of recalling the product(s), and business liability insurance, the Supplier will present the insurance policy for our inspection on demand.
7. Obligation to disclose
- On entering into a long term supplier connection, the Supplier has an obligation to disclose which covers all particulars that could be relevant to us. Of particular relevance would be information about quality problems, especially in the event that they could not be fully solved. It also covers foreseeable delivery difficulties, as well as all alterations to product features which may have repercussions on ourselves, even if the delivery items themselves are not defective.
8. Protective rights
- The Supplier will guarantee and ensure that all deliveries do not infringe any intellectual property rights of a third party, and especially, that third party patent rights, licensing rights or other intellectual property rights are not violated through the delivery and usage of the delivery items.
- The Supplier indemnifies us and our customers in the event of any third party claims against violation of intellectual property rights. The Supplier will also bear any costs that we may incur in this connection; including costs for any possible prosecution and product recall.
- We are entitled, at the cost of the Supplier, to seek the permission of the rightful owners for the usage of the delivery items and services concerned.
- The Supplier is not entitled to make use of our trade names, logos or trademarks either for their own use or for the use of a third party. He may not use them, either individually or in conjunction with his own trade names, trademarks or logos, without previously obtaining our written agreement. He may not offer, sell, deliver or otherwise place on the market to a third party, products from his standard range where our trade name, trademark or logo remains identifiable on the product.
9. Export Controls
- The Supplier undertakes to adhere to all of the relevant export laws and regulations of the EU, the EU member states as well as the USA. The Supplier engages, in particular, to examine his contractual relationships and ensure that
- No deliveries of contract products may be effected, directly or indirectly, to any persons, company or association named in each of the effective EU Anti – terrorism Laws (EG Regulation No. 2580/2001 and EG Regulation No. 881/2002 in their relevant versions);
- No deliveries of contract products may be effected, directly or indirectly, to any person, company or association named in each of the effective of the USA Sanctions Lists (in particular – but without restrictions – the Denied Persons List, Entity List, SDN – OFAC);
- The products to be delivered, and the relevant technical data thereof, are not intended for armament relevant, nuclear technological or armament technological purposes;
- No military recipient is to be supplied.
- The Supplier undertakes, furthermore, to document his inspection procedures, and to produce them for us,on request. Noncompliance with the aforementioned export laws and regulations would constitute a serious breach of contract on his part, this would entitle us to summarily terminate the contract. The Supplier is liable for all damages incurred, due to the premature termination of contract. His liability for damages would also encompass damages for lost profits, consequential damages as well as incidental and consequential costs. The Supplier indemnifies us from any liability, as well as from all claims, demands, costs (including qualified expert and solicitor’s fees) and fines, arising from the contravention of the aforementioned obligations, or from any other connection thereto.
- We are an „AEO“ (Authorized Economic Operator). You agree that, the goods supplied to us are produced by reliable suppliers, are stored and loaded in secure business premises, are protected against unauthorized access during stor-age/transportation and that you employ reliable personnel.
10. Concluding provisions
- Partial Invalidity
Should individual sections of these general purchasing conditions be legally ineffective, this will not prejudice the validity of the remaining conditions.
- Non-Assignment of Contracts
The supplier is not entitled to assign the contract, or any material sections of the contract, to a third party without our previous written permission. Should permission be granted, the Supplier remains liable to us as joint and several debtors.
- Non-Assignment of Claims
The assignment of any claims against us, excluding for financing purposes, is not permitted.
- Set Off Rights, Lien Rights
We are legally entitled to setoff rights and lien rights.
- Place of Delivery, Place of Fulfilment
Unless explicitly stated otherwise, Neuburg (Donau) is the place of delivery, for delivery obligations to our nominated delivery address, and/or is the place of fulfilment for all other obligations of both parties.
Should the Supplier suspend payments, a provisional insolvency administrator will be appointed, or bankruptcy proceedings over his assets will commence, we are then entitled to partly or wholly withdraw from the contract.
- Modification or Phasing out of Production
Should the Supplier intend to modify or phase out his production, he is obliged to notify us immediately of this in writing. When phasing out production, the Supplier must ensure that the materials hitherto delivered to us remain available for delivery for at least 3 (three) months after his notification
- The Supplier will guarantee that the products he supplies to us have been manufactured without the use of exploitative or illegal child labour.”
Supplementary to these conditions, the laws of the Federal Republic of Germany solely apply, excluding the UN Purchasing Law Agreement
- Place of Jurisdiction
For all claims arising out of business connections with traders the sole Place of Jurisdiction is Neuburg an der Donau. However, we reserve the right to assert our claims in any other admissible Place of Jurisdiction.
Stand 01/2011 | SONAX GmbH Münchener Straße 75 D-86633 Neuburg/Donau