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Terms and Conditions of Purchase

General Terms and Conditions of Purchase - EL-O-MATIC GmbH

1. General - Scope

1.1 Our conditions of purchase apply exclusively; We do not accept any conditions of the supplier that conflict with or deviate from our terms and conditions of purchase, unless we have expressly agreed to their validity in writing. Our terms and conditions of purchase shall also apply if we accept the supplier's delivery, knowing that the terms and conditions of the supplier conflict with or differ from our terms and conditions of purchase.
1.2 All agreements made between us and the supplier for the purpose of executing this contract execution must be made in writing.
1.3 Our conditions of purchase apply only to companies, legal entities under public law or special funds under public law.
1.4 Our conditions of purchase also apply to all future businesses with the supplier.
1.5 The purchaser is buying the goods for the EL-O-MATIC GmbH.


2. Offer – Offer documentation

2.1 The supplier is obliged to accept our order within a period of 2 weeks. The contract is concluded upon acceptance by the supplier.
2.2 We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our express consent. They are only to be used for production related to our order; once the order has been processed, related documents must be returned to us without being explicitly asked. They are to be kept confidential from third parties, to this extent the provisions of Section 13 Section 4 apply.


3. Price – Payment conditions

3.1 The price shown in the order is binding. However, the reservation according to § 6 applies. In the absence of a different written agreement, the price includes delivery "free purchasers address", including packaging. The delivery takes place FCA. The return of the packaging requires a special agreement.
3.2 VAT is included in the PO value.
3.3 The invoice is to be provided in triplicate or electronic format using pdf-file extension. We can only process invoices if they - in accordance with the specifications in our order - state our order number. The supplier is responsible for all consequences arising from non-compliance with this obligation, unless he can prove that he is not responsible for it.
3.4 After receipt of the goods and the invoice according to the conditions described above, the payment period begins on the first day of the following calendar month, with the payment period being 2 calendar months and 5 days from this point in time. Payment is made on the 5th day of the period described above.
3.5 We reserve our statutory rights to set-off and retain.


4. Delivery and ownership

4.1 Unless expressly agreed otherwise, the ownership of the goods is transferred directly from the supplier to the addressee of the delivery. If the purchaser himself is the addressee of the delivery, he only acts as an agent for the intended owner. Ownership of the goods passes to the intended owner either upon delivery, upon provision of the delivery in accordance with the order or upon payment of partial amounts of the order value by the purchaser or the addressee of the delivery (the process that takes place first is decisive). If ownership of the goods has passed to the intended owner prior to delivery, the goods must clearly be identified by the supplier as third-party ownership.
4.2 Unless otherwise agreed in writing, the delivery must be made free of charge to the address specified in the order or to a destination specified by the customer. The supplier is obliged to state our order number exactly on all shipping documents and delivery notes; if he fails to do so, we are not responsible for delays in processing. The risk during transport lies with the supplier and the goods are only considered to be delivered upon receipt at the destination of the purchaser in accordance with these general terms and conditions. The purchaser is not obliged to maintain insurance during the transport of the goods to the destination specified by the purchaser. The supplier must use the freight company preferred by the purchaser to transport the goods from the supplier's facility to the destination specified by the purchaser.
4.3 For international deliveries, the supplier must make the goods free of all customs duties for export. He must organize the delivery of the goods to the main transshipment point or to the freight yard at the loading port specified by the customer. The supplier provides all necessary export permits and authorizations and is responsible for all fees and costs associated with compliance of and the regulations regarding export duties, as well as the costs incurred in providing the goods for loading, in particular, but not exclusively, the costs of customs clearance , the storage location / container freight station, the goods receipt, the processing at the destination and the documentation. The supplier bears the costs incurred in checking the work processes, packaging and the associated labeling for the purpose of delivering the goods. The supplier provides the delivery note / the usual shipping document at his own expense, which the customer requires for the delivery of the goods. The supplier must notify the customer in a reasonable time about the dispatch of the goods and provide any other necessary information about the delivery of the goods. The customer bears the costs for the inspection before dispatch. This does not apply if such controls are required by the exporting country. The purchaser must obtain all necessary import permits and authorizations and assume all costs and fees in connection with import customs formalities, in particular, but not exclusively, with the import release as well as the duties and administrative costs.
4.4 With the exception of costs and fees in connection with (I) export customs formalities, (II) the preparation of the goods for loading, and (III) inspection activities, the packaging and the corresponding labeling of the goods, the customer bears all costs for the transport / transportation ex works to the final destination. At the choice of the purchaser and at his request, the supplier assumes the costs for transport / transportation from the factory to the export port and bills these costs to the purchaser. Otherwise, all transport or transportation costs to the final destination must be paid by the recipient. Notwithstanding the foregoing, the supplier bears all costs, fees, expenses and penalties that result from the fact that the supplier has failed to hire a carrier recognized by the customer without the customer's prior written consent, or that otherwise he disregarded the customer's instructions.


5. Delivery time

5.1 The lead-time mentioned in the order document is binding.
5.2 The supplier is obliged to notify us immediately in writing if circumstances arise or he becomes aware of, from which he can assume that the stipulated lead-time cannot be met.
5.3 If delivery times are exceeded, we are entitled to legal rights and claims in full.


6. Order changes

We can request subsequent changes to the agreed scope of delivery or service in terms of design and quantity, insofar as specific operational reasons require this and the changes are customary in the trade or reasonable for the supplier. If such changes by the customer change the basis of the price for a service provided in the contract, a new price must be agreed taking into account the additional or reduced costs. This agreement should be made before execution.


7. Assignment prohibition

The supplier is not entitled to assign his claims against the customer without his written consent. In the case of an effective assignment, the customer can, however, liberate the supplier in accordance with § 354 a S. 2 HGB.


8. Liability for defects

8.1 We will examine the goods within a reasonable period after delivery for any deviations in quality, quantity and identity, insofar as this is feasible in the ordinary course of business. Notices of defects are timely if they are made within a period of 5 working days from receipt of the goods or, in the case of hidden defects, from discovery. To preserve our rights the timely dispatch of such notice is sufficient.
8.2 In the event that the goods are defective, we are entitled to the statutory rights and claims for supplementary performance, withdrawal or reduction, as well as compensation for damages or reimbursement of unsuccessful expenses, in full and unchanged. If the supplier does not comply with our legitimate request to effect subsequent performance within a reasonable period, we are in urgent cases also entitled to remedy the defect ourselves or through third parties at the supplier's expense.
8.3 The supplier guarantees that his deliveries and services, patents, utility models, brands, copyrights and other industrial property rights of third parties in Germany and any other country in which supplies and services should be used to the knowledge of the supplier are not violated. Insofar as we are claimed by third parties for the violation of such rights, the supplier releases us from these claims in full, including the costs of legal defense. Insofar as this is reasonable for us, we will immediately inform the supplier of claims by third parties and will not, without his consent, conclude any agreements, in particular comparisons and give acknowledgments.
8.4 Unless the law provides for a longer limitation period, rights and claims due to defects become statute-barred 24 months after delivery or, if necessary, acceptance. Deviating from this, rights and claims due to legal defects become statute-barred no earlier than 10 years after delivery or, if necessary, acceptance.


9. Special notice and care obligations

9.1 If the purchaser has informed the supplier about the intended use of the deliveries or services or if the intended use is recognizable for the supplier even without express reference, the supplier is obliged to inform the purchaser immediately if the deliveries or services of the supplier are unsuitable to fulfill the intended purpose.
9.2 The supplier must ensure that the deliveries and services comply with environmental protection, accident prevention and other occupational safety regulations, the safety regulations and all legal requirements applicable in the Federal Republic of Germany and has to make the customer aware of special, not generally known treatment and disposal requirements for each delivery.


10. Spare parts and readiness for delivery

10.1 The supplier is obliged to offer spare parts to the customer for the period of normal technical use, but at least 10 years after the last delivery, at reasonable conditions.
10.2 If the supplier stops the supply of the spare parts, the buyer must be given the opportunity to make a final order.


11. Security and liability insurance

11.1 To secure all contractual warranty claims, the purchaser can request adequate security from the supplier until the warranty period expires. Unless otherwise agreed, the customer can retain 5% of the order value as interest-bearing security when paying the final invoice. The supplier can avert this security retention by providing an appropriate guarantee. The security deposit must be paid into a separate bank account.
11.2 The purchaser can require the supplier to take out liability insurance with adequate cover for the risk of damage.


12. Product liability - Exemption – Liability Insurance Protection

12.1 Insofar as the supplier is responsible for product damage, he is obliged to indemnify us from third party claims for damages to the extent that the cause is within his sphere of control and organization and he is personally liable in the external relationship.
12.2 As part of his liability for damage in the sense of section 1, the supplier is also obliged to reimburse any expenses in accordance with §§ 683, 670 BGB and §§ 830, 840, 426 BGB that result from or are in connection with a Recall initiated by us. We will inform the supplier - as far as possible and reasonable - about the content and scope of the recall measures to be carried out and give him the opportunity to comment. Other legal claims remain unaffected.
12.3 The supplier undertakes to maintain an extended product liability insurance - with a sum insured of EUR 10 million per personal injury / property damage / pure financial loss - as a lump sum; if we are entitled to further claims for damages, these remain unaffected


13. Reservation of ownership – Free issued parts - Tools - Confidentiality

13.1 If we provide parts to the supplier, EL-O-MATIC GmbH reserves ownership. Processing or transformation by the supplier is carried out for EL-O-MATIC GmbH. If the provided parts are processed with other items that do not belong to EL-O-MATIC GmbH, EL-O-MATIC GmbH acquires ownership of the new item in proportion to the value of the item (purchase price plus VAT) to the others processed items, at the time of processing.
13.2 If the item provided by EL-O-MATIC GmbH is inseparably mixed with objects that do not belong to EL-O-MATIC GmbH, EL-O-MATIC GmbH acquires ownership of the new item in the ratio of the value the reserved item (purchase price plus VAT) for the other mixed items at the time of the mixing. If the mixing takes place in such a way that the supplier's item is to be regarded as the main item, it is agreed that the supplier transfers the proportional co-ownership to EL-O-MATIC GmbH; the supplier detains sole ownership or co-ownership for EL-O-MATIC GmbH.
13.3 We reserve ownership of tools we provide; the supplier is obliged to use the tools exclusively for the manufacture of the goods we have ordered. The supplier is obliged to insure the tools belonging to us, at replacement value, at his own expense against fire, water and theft damage. At the same time, the supplier hereby assigns to us all claims for compensation from this insurance; We herewith accept the assignment. The supplier is obliged to carry out any necessary maintenance and inspection work as well as all maintenance and repair work on our tools in good time at his own expense. He must report any accidents to us immediately; if he culpably neglects this, claims for damages remain unaffected.
13.4 The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. They may only be disclosed to third parties with our express consent. The confidentiality obligation also applies after the execution of this contract; it expires if and insofar as the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents has become generally known.


14. Inspection and acceleration

The purchaser and his people (group of buyers) as well as the responsible public authorities are entitled to inspect or test the goods or work in the premises of the supplier or his subcontractor or his legal successor at any time at the usual times and to accelerate the manufacturing process by appropriate advice. Inspections at the supplier's operating facilities and instructions to the supplier's personnel are only permitted with the supplier's consent. The supplier may only refuse this consent for important reasons. The supplier shall inform the customer in an appropriate manner about tests and workmanship carried out by him and his subcontractors in which the group of buyers may participate. The supplier transmits the test certificates requested by the customer. Such inspections and tests and / or the presence of the customer during the tests do not exempt the supplier from his contractual obligations. Such inspections and tests or the presence of the customer in such tests are not considered to be an implied acceptance of the goods. The supplier informs the customer immediately about contacts with customers of EL-O-MATIC GmbH, the end user and / or with official bodies in connection with this order. He will only follow their instructions if they have been confirmed in writing by the customer.


15. Purchasers right to cancel the order

The purchaser is authorized to terminate the order at any time - even without an important reason. In this case, the purchaser owes the supplier the agreed remuneration minus the saved expenses and minus the advantages that the supplier achieves through the other use of the ordered services or work (cf. § 649 BGB).


16. Suspension

If the purchaser's claims for acute danger in performance against the supplier, the purchaser is authorized, with the consent of the supplier, to enter his premises, to take possession of the goods ordered and to transport them away. The supplier may only refuse his required consent for an important reason.


17. Software

On the basis of the express approval of the supplier, the customer is granted a non-exclusive, worldwide, unlimited license for the use of all software supplied on the basis of this order. The customer is permitted to grant sublicenses, in particular to his end customers. The purchaser does not pay more for the use of the software as described above and agreed in the order. The customer (EL-O-MATIC GmbH) is entitled to copy the software for backup and archiving purposes, to subject it to reverse engineering, to decompile it or to use and copy it in any other way within the scope of applicable law.


18. Compliance with laws, regulations etc.

18.1 The supplier, his subcontractors, legal successors and their employees always comply with all applicable statutory provisions and ordinances, codes and standards, in particular, but not only, provisions on health protection, safety and environmental protection such as (i) the applicable statutory provisions on product safety (eg. Machinery Directive 89/392 / EEC, Directive on Electromagnetic Compatibility 89/336 / EEC, Low Voltage Directive 73/23 / EEC); (ii) provisions on information regarding hazardous substances and (iii) all provisions that exist in the business premises of EL-O-MATIC GmbH, its customers and any end users and that relate to work carried out (including the safety requirements). The supplier will oblige his subcontractors and legal successors as well as their employees to the same extent.
18.2 The supplier warrants that, on the date of the conclusion of the contract, delivery of all goods is in accordance with all applicable export control regulations - including the applicable US regulations and ordinances, the decisions of the UN Security Council in the country of the supplier and / or in the country to which the goods are exported, applicable regulations - to the destination specified by the purchaser, end users and for the end use specified by the purchaser is permitted. The supplier further agrees that (i) the export permit declaration made by the supplier prior to the conclusion of the contract forms part of the contract; (ii) he will inform the customer as soon as possible when the delivery of the goods to the destination is no longer permitted; (iii) in the event that additional items are added to the contract, the supplier will examine their admissibility for the delivery and either submit a new export declaration or inform the customer that the delivery of these items is not permitted.
18.3 The supplier alone is responsible for ensuring that the delivered goods or parts thereof comply with all relevant laws and regulations ("Legislation") for restricting hazardous substances ("RoHS"), such as Directive 2011/65 / EU of January 3, 2013 (“EU RoHS”) or SJ / T 11363-2006 (“China RoHS 1 ″) from March 1st, 2007, for the control of environmental pollution by electronic products as well as all further publications of national or local regulations in the execution of the aforementioned RoHS legislation were enacted. Because of this, all goods and parts thereof must be suitable for production and sale in accordance with RoHS. The supplier will issue and sign the customer's standard declaration of compliance with the RoHS with regard to the parts, use appropriate systems and procedures to ensure the accuracy of these findings and keep appropriate records so that the history of all products or parts of products can be proven. If products or parts of products are not delivered in accordance with the requirements mentioned above, the customer reserves the right to cancel entire orders or individual orders at the supplier's expense. The supplier undertakes to properly inform the customer immediately of changes that affect compliance with RoHS. In the event of a proven violation of national or international regulations regarding RoHS compliance by the supplier, the supplier undertakes to indemnify and indemnify the customer against all claims, liabilities, losses, damages, judgments and external liability - regardless of the respective legal reason hold, as well as to bear all disadvantages, losses and damages that arise for the customer from such a violation.
18.4 To the extent required by applicable law, the supplier is responsible for the collection, treatment, processing and disposal (i) of the goods or parts thereof, if these are legally considered "waste" and (ii) of objects caused by the goods or parts of goods to be replaced. Insofar as the supplier is required by applicable law, including the statutory provisions on waste for electrical and electronic equipment, the European Directive 2012/19 / EU (WEEE) and related statutory provisions in EU member states, "old" goods or parts the supplier will dispose of these goods in full at his own expense (including all processing and transport costs).
18.5 The supplier will comply with all applicable anti-corruption, money laundering and anti-terrorism laws, particularly, but not only, the applicable laws in the United States, in the country of the supplier, in the country of the customer, and in the country of the final destination of the goods and / or the performance of work the supplier as well as in all intermediate states (collectively called the "applicable laws"). He hereby guarantees that he has not or will not violate any applicable laws - neither in relation to the present order nor in any other way. The acceptance of the order by the supplier is considered as a declaration of compliance with all applicable laws by the supplier.
18.6 Effective immediately, the supplier will introduce and maintain an effective program for compliance with the applicable laws that is satisfactory for the customer; this program includes (i) the introduction of a Code of Conduct or Ethics (“Supplier's Policy”); (ii) the implementation of a system of internal accounting controls and a system to create and maintain proper books, records and accounts that meet the requirements of the supplier's policy and applicable laws; (iii) the establishment of procedures to ensure compliance with the supplier's policy and applicable laws; (iv) the implementation of a training program to comply with the supplier's policy and applicable laws; (v) the implementation of a program of internal review of supplier compliance and applicable laws; (vi) the establishment of a system to report violations of the supplier's policy and applicable laws; and (vii) the introduction of punitive measures to employees who violate the supplier's policy and applicable laws. The customer is entitled to check this compliance program of the supplier himself or through a third party during normal working hours with appropriate advance notice; in this case the customer or the third party will sign an appropriate confidentiality obligation.
18.7 The supplier's compliance with the requirements of this section 18 is an essential condition of the order; any not insignificant violation of this section 18 is considered a material violation of the obligations arising from the order.
18.8 The supplier alone is responsible for ensuring that the delivered products, parts of products or substances comply with the requirements of Regulation (EC) No. 1907/2006 (REACH) of December 18, 2006 in the current version, including amendments, as well as all national provisions contained in Implementation of this regulation have been fully complied with. The supplier guarantees that all obligations from this regulation, in particular all requirements regarding the information of the buyer, have been fulfilled. This includes in particular the provision of a correct and comprehensive safety data sheet in accordance with the regulation. If products, product parts or other substances are not delivered in accordance with the aforementioned provisions, the buyer reserves the right to terminate framework or individual orders. The supplier undertakes to properly and promptly inform the buyer of any changes that affect compliance with REACH. In the event of cancellation of flat-rate or individual orders or a proven violation of national or international provisions to comply with REACH by the supplier, the supplier undertakes to the buyer with regard to all lawsuits, liabilities, losses, damages, judgments and liabilities to third parties, regardless of their legal base to indemnify the buyer and to bear all disadvantages, losses or damage that the buyer incurs in the event of a violation.
18.9 The supplier must comply with the requirements of the International Plant Protection Convention ("IPPC") and the regulations on packaging wood ("SWPM"), as outlined in ISPM-15 and elsewhere. The supplier must ensure and present a corresponding certification that all SWPM are marked with the IPPC logo, the country code, the code number assigned by the state plant protection organization and the IPPC processing code.


19. Place of jurisdiction – Place of Fulfillment – Applicable law

19.1 If the supplier is a businessman, our place of business is the place of jurisdiction; however, we are also entitled to sue the supplier at his place of residence.
19.2 Unless otherwise stated in the order, our place of business is the place of performance.
19.3 The law of the Federal Republic of Germany applies. The United Nations agreement of April 11, 1980 regarding contracts for the international sale of goods does not apply.