1. General Provisions
1.1. These Terms and Conditions of Purchase are a component of all our orders. They shall be incorporated into the content of the contract by no later than upon acceptance of the order. They apply to future orders, even if no further express reference is made to the applicability hereof. Any terms and conditions of sale of the supplier are, insofar as they contradict or amend our Terms and Conditions of Purchase, not acknowledged, even if we do not expressly object thereto.
1.2. Deviations from, and/or addenda and/or side agreements to, the Terms and Conditions of Purchase that are made prior to the Parties’ entry into the contract are not valid unless they are set forth in writing, expressly designated as deviations, and signed or confirmed in writing by authorized representatives of both Parties.
2. Delivery Contract – Release Order for Delivery
2.1. The only orders that are valid are those that are issued in writing and signed with a legally binding signature. We do not acknowledge any oral orders or agreements that have not been confirmed by us in writing. We acknowledge deviations between the supplier’s order confirmations and our order as being incorporated into the contract only if the deviations are stated in writing in the order confirmation, are designated expressly and in a clearly recognizable fashion as deviations, and have been expressly approved by us in writing.
2.2. If the supplier fails to accept an order within two weeks after receipt thereof, we are entitled to revoke the order. Revocation is not dependent on establishment of a time limit. Release orders for delivery shall become binding at the latest if the supplier does not object thereto within two weeks.
2.3. We are permitted to request that the supplier make changes in the design, construction, and workmanship of the item supplied unless the changes requested are unreasonable for the supplier, particularly with regard to any additional costs or expenditure of time that are expected to be incurred by the supplier as a result of the changes. The effects of reasonable changes must be arranged by reasonable mutual agreement between the Parties, especially with regard to additional or lower costs and the delivery deadlines. If the supplier states that it is unable to perform changes we have requested, we are permitted to rescind the contract. The foregoing provision does not apply if changes we have requested are not reasonable for the supplier, particularly due to our failing to offer the supplier reasonable compensation for the additional expenses actually incurred by the supplier as a result of the changes that have been requested or a reasonable extension of the delivery deadline, taking into account the delays that are expected to occur as a result of the changes that have been requested.
3. Delivery Deadlines and Time Limits for Delivery
3.1. Agreed deadlines and time limits are binding. The time determining whether a delivery deadline or time limit for delivery has been complied with is the time of our receipt of the goods. If the order is not agreed as being subject to delivery “free to customer plant,” the supplier is obligated to provide the goods in due time, taking into account the usual amount of time needed for loading and shipping. If delivery “through self pick-up” has been agreed, the supplier is obligated to provide notice that the goods have been completed early on.
3.2. At the end of the day on the delivery deadline, the supplier shall be deemed to be in default even without any particular warning notice, unless the supplier proves that it is not responsible for the non-performance. In this case, we are permitted, after setting a reasonable time limit for performance, to assert claims for damages in lieu of performance and/or to rescind the contract. Any contractual penalties we are required to pay due to the supplier’s default will be charged to the supplier.
3.3. In the event of default of delivery, we are moreover entitled to demand lump-sum default damages in the amount of 3% of the value of the delivery for each full week for which such circumstance persists, but not more than 10%. The supplier has the right to prove to us that no damage or loss, or damage or loss that is substantially lower than the lump sum, has been sustained as a result of the default. We are entitled to prove that a higher amount of damage or loss has been sustained.
3.4. The supplier is obligated to notify us in writing without delay if circumstances from which it is clear that the agreed delivery time cannot be complied with occur, or if the supplier sees that such circumstances will occur.
3.5. Events of force majeure, labor disputes, civil unrest, actions by government agencies, and other unforeseeable, unavoidable, and serious events shall exempt the Parties from their obligations to perform under the contract for the duration of the disruption and in the scope of the effects thereof. In the event of failure to deliver on time due to force majeure, we are entitled to rescind the contract. The supplier is not entitled to derive any claims for payment of damages from such rescission. If the supplier itself does not receive adequate supplies from its own suppliers, such circumstance is not considered to constitute force majeure. The Parties are obligated to give each other the necessary information without delay, within the realm of what is reasonable, and to act in good faith in adjusting their obligations to the changed circumstances.
Unless otherwise agreed, the goods to be delivered must be packed properly and as customary within the industry or, at our request, equipped with special packaging according to our instructions. The supplier is liable for any damage incurred as a result of defective or deficient packaging. We will not assume any packaging costs except by express prior agreement.
5. Formal Acceptance and Notices of Defects
5.1. The formal acceptance process shall be in accordance with the agreements entered into in the orders and release orders for delivery.
5.2. We are obligated to check the goods for any deviations in quality or quantity within a reasonable time limit insofar as this is feasible in the ordinary course of business; a complaint is considered to have been submitted in due time if it is received by the supplier within a time limit of seven working days, counted as from receipt of the goods or, in the case of hidden defects, counted as from the date of discovery thereof.
5.3. Goods delivered other than as ordered will be sent back at the supplier’s expense and risk.
5.4. Payments or partial payments toward the purchase price or the compensation, as the case may be, shall not be construed as constituting either formal acceptance or acknowledgement that the goods or service is or are free of defects.
7. Billing and Payment
7.1. Unless specific payment terms have been agreed between the Parties, our payments will be made within 14 days after receipt of a proper invoice that is suitable for review, subject to a 3% prompt payment discount (Skonto), or net within 45 days thereafter. If the goods are received after receipt of the invoice, the time limit for the prompt payment discount will not commence until the date of receipt of the goods. We reserve the right to remit payments by way of our own draft or bill of exchange.
7.2. If a delivery contains any errors, we are entitled to withhold payment until such time as proper performance has been rendered.
7.3. The shipping specifications noted in the order must be complied with accurately. In the event of non-compliance with the shipping specifications, any additional costs arising as a result shall be charged to the supplier.
7.4. The supplier is not permitted to assign its claims to third parties or to have third parties collect its claims without our prior written consent.
7.5. Any and all agreed prices are deemed to include all expenditures associated with the order, irrespective of whether they were foreseeable at the time of the Parties’ entry into the contract.
7.6. We are entitled to offset our own claims against the claims of others and to withhold payment within the scope provided by law.
7.7. As a basic principle, we refuse to settle payment by way of cash on delivery (COD).
7.8. Unless otherwise agreed in writing, customs duties and other fees and charges must be borne by the supplier.
7.9. The supplier is not entitled to offset its own claims against our claims unless the supplier’s counterclaim has been established with final, binding legal force, is undisputed, has been acknowledged, or is ready for issuance of a legal decision. Furthermore, the supplier is authorized to exercise a right to withhold payment if and insofar as its counterclaim has been established with final, binding legal force, is undisputed or ready for issuance of a legal decision, and is based on the same contractual relationship.
8. Liability for Material Defects (warranty)
8.1. The supplier warrants that the goods supplied are free of defects, and in particular, that they demonstrate the agreed quality. “Agreed quality” is deemed to mean, in particular, the characteristics and quality of any purchase samples, the statutory and agreed terms and conditions with regard to quality and packaging, and the quality conditions customary in the industry with regard to the goods supplied. Moreover, the supplier warrants that the goods supplied will not trigger any liability under the German Product Liability Act (Produkthaftungsgesetz) due to the existence of a product defect.
8.2. If a delivery does not comply with the foregoing prerequisites, we are entitled to demand a cure or, after establishing a reasonable time limit for performance – taking into account the exceptions provided by law – to reduce the purchase price, rescind the contract, and/or demand payment of damages or reimbursement for futile expenses incurred. We cannot demand damages or reimbursement for futile expenses incurred if the supplier proves that it is not responsible for the defect. Even without establishing a subsequent time limit, we are permitted to rescind the contract and/or demand damages or reimbursement for futile expenses incurred pursuant to the foregoing sentence
hereof if the supplier refuses to remedy the defect or deliver an item that is free of defects (to effect a cure) because the costs are disproportionate, or if the nature of the cure to which we are entitled has failed or is unreasonable for us. A cure is considered to have failed after a second unsuccessful attempt unless other factors dictate otherwise, particularly according to the nature of the item or the defect or the other circumstances.
8.3. If the same goods are repeatedly supplied with defects, we are, after setting a time limit for performance, entitled to rescind the contract, including for the scope of delivery not yet fulfilled, in the event of another defective delivery.
8.4. The expenditures necessary for the purpose of effecting a cure, particularly the costs of transportation, labor, travel, and materials, shall be borne by the supplier. No restriction of the costs to the value of the order will be accepted.
8.5. We are required to provide the supplier with the parts to be replaced by the supplier at the supplier’s request and expense. Where we effect, at the supplier’s request, return shipments of goods regarding which a complaint has been submitted, such shipments are made at the supplier’s expense and risk. The risk shall pass to the supplier at the time at which the goods are transferred to the shipping company that has been commissioned, the freight forwarder or carrier, or the enterprise that has otherwise been designated to perform the shipment.
8.6. Liability for material defects shall terminate 24 months from the shipping of the finished parts by us to our customers, or from formal acceptance of the finished parts by our customers, as the case may be, but no later than 36 months from our receipt of the goods or our formal acceptance thereof, as the case may be.
9.1. The supplier is obligated to reimburse us for any damage and/or losses we sustain either directly or indirectly as a result of defective or incomplete delivery, violation of safety rules and regulations established by government agencies, or for any other reason or reasons for which the supplier is responsible.
9.2. If product liability claims are asserted on us by third parties with regard to items supplied, the supplier is liable to us to the same extent to which we are liable vis-à-vis the third party in question unless the supplier proves that the item supplied by the supplier has not been part of the cause or causes of the damage or loss that has occurred. Within its relationship with us, the supplier waives the defense of claims being statute-barred with regard to such recourse claims.
9.3. The supplier is liable to us for all costs we incur in connection with actions to prevent damage and/or losses, e.g. recall, if and insofar as such actions are necessary and the supplier is obligated to render compensation pursuant to subsection 9.1 above.
10. Property Rights
10.1.The supplier assumes responsibility for assuring itself, in a reasonable scope, that no rights or know-how of third parties are infringed in connection with the supplier’s goods/services and/or our use thereof as intended.
10.2. The supplier is obligated to reimburse us for any and all damage and/or losses we sustain as a result of rights or know-how of third parties being infringed, within the supplier’s home country, the Federal Republic of Germany, a Member State of the European Union, or the United States of America, in connection with the supplier’s goods/services and/or our use thereof as intended, unless the supplier is not responsible for the damage and/or losses we sustain as a result of such infringement of rights.
10.3. If a third party asserts claims on us with regard to infringement of its rights or know-how and such claims are attributable to the supplier’s goods/services and/or our use thereof as intended, the supplier is obligated to indemnify us and hold us harmless against such claims and all reasonable expenditures we may incur out of or in connection with defending ourselves against such claims, if and insofar as the supplier is obligated to render compensation pursuant to subsection 10.2 above.
10.4.The warranty for legal defects shall terminate 24 months from the shipping of the finished parts by us to our customers, or from formal acceptance of the finished parts by our customers, as the case may be, but no later than 36 months from our receipt of the goods or our formal acceptance thereof, as the case may be.
10.5. The Parties agree to notify each other without delay of any risks of infringement and alleged cases of infringement of which they become aware, and to provide each other with the opportunity to counteract such claims by mutual agreement between them.
10.6.The supplier’s warranty for legal defects pursuant to subsections 10.1 through 10.5 above does not refer to performance or portions thereof effected according to particular specifications by us. As soon as the supplier has reason to suspect that our specifications infringe the property rights of third parties, the supplier shall notify us thereof without delay.
11.1. The Parties agree to treat any and all commercial and technical details that are not public knowledge and to which they become privy through the business relationship as business and trade secrets.
11.2. All drawings and calculations provided for the purpose of performing orders shall remain our property and must be returned to us in all cases following the performance of the order.
11.3. A corresponding obligation must be imposed on subcontractors.
12. General Provisions
12.1. Exclusively the laws of the Federal Republic of Germany shall apply, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG), unless otherwise agreed.
12.2. The place of performance is our headquarters or, if and insofar as delivery from one of our branch locations or subsidiaries is ordered, the registered office thereof. Other provisions may be made for deliveries in the individual case.
12.3. For all disputes arising from the contractual relationship, legal actions must be filed with the court that has jurisdiction over our headquarters or for our branch location or subsidiary as named in the order if the supplier is a full business entity (Vollkaufmann), a legal entity under public law (juristische Person des öffentlichen Rechts), or a special fund under public law (öffentlich-rechtliches Sondervermögen). We are also entitled to file a legal action in the location of the supplier’s headquarters. This also applies to legal actions in the bill of exchange and check process.
12.4. Should individual provisions of this agreement be invalid, or should it transpire that the provisions hereof contain a gap, the validity of the remaining provisions shall be unaffected by such circumstance. The Parties are obligated to replace any such invalid provision with a provision whose economic outcome most closely approximates that of the original provision.
WEGMANN automotive GmbH,
Rudolf-Diesel-Str. 6, D-97209 Veitshöchheim