§ 1 SCOPE, FORM
(1) These general terms and conditions of purchase (GTCP) shall apply exclusively. Orders placed by Rühle GmbH shall be subject to the following terms and conditions. Any deviating or conflicting terms and conditions shall be rejected by us unless they have been expressly accepted by Rühle GmbH in writing for each individual case. This requirement of consent shall apply in any case, for example even if we accept the supplier's deliveries without reservation with knowledge of conflicting general terms and conditions of the supplier. If the delivery is nevertheless carried out, this shall be deemed as consent to the terms and conditions of purchase of Rühle GmbH). If Rühle GmbH accepts the goods, this shall be exclusively subject to these terms and conditions of purchase.
(2) The GTCP shall apply in particular to contracts concerning the delivery of movable goods ("goods"), irrespective of whether the supplier manufactures the goods himself or purchases them from suppliers (§§ 433, 650 of the German Civil Code (BGB)). Unless otherwise agreed, the GTCP shall apply in the version valid at the time of the buyer's order. These terms and conditions of purchase shall also apply to all future transactions between the parties until a new version comes into force.
(3) Individual agreements made with the supplier on a case-by-case basis (including collateral agreements, complements and amendments) shall in any case take precedence over these GTCP. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(4) Legally relevant declarations and notifications of the supplier with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) shall be made in writing, i.e. in text form (§126b of the German Civil Code (BGB)). Statutory form requirements and further proofs, in particular in case of doubts about the legitimacy of the declaring party, shall remain unaffected.
(5) References to the applicability of statutory provisions shall only have a clarifying significance. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTCP.
§ 2 CONCLUSION OF CONTRACT
(1) Supply contracts, purchase orders and delivery schedules as well as any amendments and supplements thereto shall be made in writing. Compliance with the written form requirement shall also be ensured by remote data transmission or fax. Our order shall be deemed binding at the earliest upon written submission or confirmation. The supplier shall point out obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents to us for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not concluded.
(2) The supplier shall confirm our order in writing within a period of three (3) banking days or, in particular, execute it without reservation by dispatching the goods (acceptance). Cost estimates shall be binding and shall not be remunerated unless expressly agreed otherwise.
(3) Rühle GmbH may cancel the order without incurring any costs unless it has received the supplier's order confirmation within 3 days after receipt of the order by the supplier. The same shall apply to delivery call-offs within the scope of an order and call-off planning.
§ 3 DELIVERY TIME AND DELAY IN DELIVERY
(1) The delivery time specified by us in the order shall be binding. Agreed dates and deadlines are binding. Without prejudice to its other obligations, the supplier shall be obliged to notify us in writing without undue delay if it is to be expected that they will be unable to meet the agreed delivery times - for whatever reason - and to inform us of the expected duration of the delay.
(2) The timeliness of delivery shall be determined by the date of receipt at the destination specified by Rühle GmbH. If the supplier is in default of delivery and if a reasonable grace period set by Rühle GmbH has expired fruitlessly, Rühle GmbH shall be entitled to withdraw from the contract or to claim damages instead of performance. However, Rühle GmbH may continue to insist on performance even after expiry of the grace period and may also claim damages for delay. In the case of fixed dates this shall apply without any grace period. The provisions in para. 3 shall remain unaffected. The unconditional acceptance of the delayed delivery shall not constitute a waiver of the claims for damages to which Rühle GmbH is entitled on account of the delayed delivery; this shall apply until full payment of the remuneration owed by Rühle GmbH for the delivery concerned.
(3) If the supplier is in default, we shall be entitled - in addition to further statutory claims - to demand lump-sum compensation for our damage caused by default in the amount of 0.5% of the net price per completed calendar week, but in total not more than 5% of the net price of the total order value. If Rühle GmbH does not expressly reserve the right to claim the contractual penalty upon acceptance of the delayed performance, the contractual penalty incurred may be claimed within a preclusion period of ten working days after acceptance. We reserve the right to prove that higher damages have been incurred. The supplier reserves the right to prove that no damage at all or only a significantly lower damage has been incurred.
§ 4 PERFORMANCE, DELIVERY, TRANSFER OF RISK
(1) Partial deliveries are generally not permitted, unless Rühle GmbH has expressly agreed to them. If the supplier is in default with a partial delivery, Rühle GmbH shall be entitled to withdraw from the entire contract, taking into account §3, or to claim damages instead of the entire performance if there is no interest in the partial performance. The supplier shall bear the procurement risk for their services, unless otherwise agreed in the individual case.
(2) Delivery shall be made to the destination specified by Rühle GmbH. Unless otherwise agreed in writing, shipping and packaging costs shall be borne by the supplier. A priced delivery ex works or ex warehouse of the supplier shall be shipped at the lowest cost in each case, unless a specific mode of transport has been specified by Rühle GmbH. Additional costs incurred due to non-compliance with shipping or packaging instructions shall be borne by the supplier. Additional costs for an accelerated shipment which may be necessary to meet a delivery date shall also be borne by the supplier. The place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver).
(3) The delivered goods must be delivered packed. The packaging must be safe for transport and comply with the transport regulations applicable to the selected mode of transport and the packaging regulations specified in the order.
(4) The delivery must be accompanied by a delivery bill stating the date (issue and dispatch), the contents of the delivery (article number and quantity) and our order identification (date and number). If the delivery bill is missing or incomplete, we shall not be responsible for any delays in processing and payment resulting therefrom.
(5) The goods shall travel at the risk of the supplier until they arrive at their destination, unless the transport is carried out by a carrier commissioned by Rühle GmbH. The risk of accidental loss and accidental deterioration of the goods shall pass to us upon handover at the place of performance.
(6) If the consignment arrives at the place of destination in damaged packaging or if it is delivered in damaged form to the carrier commissioned by Rühle GmbH, Rühle GmbH shall be entitled to reject the consignment without an inspection of its content. The costs of the return shipment shall be borne by the supplier.
(7) Products with expiration dates shall be delivered exclusively with a maximum remaining shelf life.
§ 5 PRICES, TERMS OF PAYMENT
(1) The price stated in the order or the price referred to in the order shall be binding.
(2) Unless otherwise agreed in the individual case, the price shall include all services and ancillary services of the supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance). Rühle GmbH shall maintain its own transport insurance with sufficient coverage. The supplier and/or forwarder shall therefore not take out transport insurance in the name of and for the account of Rühle GmbH, unless otherwise agreed individually.
(3) On the day of dispatch the supplier shall send Rühle GmbH separately an invoice in duplicate stating the order number specified by Rühle GmbH as well as an exact list of contents and weight and showing the value added tax as well as the value added tax ID number. The issuance of an invoice which does not meet the requirements or which deviates from the order placed by Rühle GmbH shall not set a time limit for claiming any cash discounts.
(4) Unless otherwise agreed in writing, payment by Rühle GmbH shall be made within 14 days less 3% discount or within 30 days net after delivery and performance (including any agreed acceptance) and receipt of a proper invoice. Offsetting shall be deemed equivalent to payment.
(5) We shall not owe any maturity interest. Default in payment shall be governed by the statutory provisions.
(6) Rights of set-off and retention as well as the defense of non-performance of the contract are vested in us to the legal extend. In particular, we shall be entitled to withhold payments as long as we are still entitled to claims against the supplier arising from incomplete or defective performance.
(7) The supplier shall have a right of set-off or retention only in respect of counterclaims which have been established by declaratory judgment or are undisputed.
(8) The claims arising from the contracts concluded with Rühle GmbH may only be assigned with the latter's written consent.
§ 6 RESERVATION OF TITLE
The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. If, however, we accept an offer of the supplier to transfer ownership conditional on payment of the purchase price in individual cases, the supplier's retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorized to resell the goods in the ordinary course of business even prior to payment of the purchase price with advance assignment of the claim arising therefrom (alternatively, the simple reservation of title extended to the resale shall apply). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.
§ 7 LIABILITY FOR DEFECTS, WARRANTY
(1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including wrong delivery and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the supplier, unless otherwise provided for below.
(2) In accordance with the statutory provisions, the supplier shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us. In any case, those product descriptions which - in particular by designation or reference in our order - are covered by the respective contract or have been included in the contract in the same way as these GTCP, shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, from the supplier or from the manufacturer.
(3) The statutory provisions (§§ 377, 381 of the German Commercial Code (HGB)) shall apply to the commercial duty of inspection and complaints with the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognizable during our quality control in the random sampling procedure. In all other respects, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later shall remain unaffected. Notwithstanding our duty to inspect, our notice of defects shall be deemed to have been given without undue delay and in good time, if it is sent within 5 banking days from discovery or, in the case of obvious defects, from delivery. Payments shall not be deemed a waiver of the right to complain. Contradictory inspection and examination periods of the supplier shall not apply.
(4) The supplier shall bear its own expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request for rectification of defects shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.
(5) In the event that the delivered goods are defective, Rühle GmbH may, at its option, demand rectification of the defect or replacement delivery. Notwithstanding our statutory rights and the provisions in para. 5, the following shall apply: If the supplier fails to meet their obligation to render subsequent performance- at our option by remedying the defect (rectification) or by delivering an item free of defects (replacement) - within a reasonable period of time set by us, we may remedy the defect ourselves or have it remedied by a third party or obtain a replacement from a third party at the supplier's expense and demand reimbursement from the supplier of the expenses required for this purpose or a corresponding advance payment. If subsequent performance by the supplier has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline needs to be set; we shall notify the supplier of such circumstances without delay, if possible in advance. Rühle GmbH may store defective deliveries for the account and at the risk of and on behalf of the supplier. Rühle GmbH shall inform the supplier thereof without delay.
(6) Otherwise, in case of a material defect or defect of title we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.
(7) If Rühle GmbH incurs costs as a result of the defective delivery of the subject matter of the contract, in particular transport, travel, labor, material costs or costs for an incoming goods inspection exceeding the usual scope, the supplier shall bear such costs. The supplier is obliged to pay a lump sum of 50.00 (fifty) Euro for each justified complaint raised by us. The purchaser shall be at liberty to claim further expenses. The supplier shall be entitled to prove that no or significantly lower expenses were incurred.
(8) The supplier shall bear the burden of proof that the damage was not caused by their delivery, that the defect was only caused by the design or processing at Rühle GmbH or that it is based on its incorrect instructions.
(9) Rühle GmbH's warranty claims shall expire 2 years after the passing of risk.
§ 8 SUPPLIER RECOURSE
(1) We shall be entitled to our statutory rights of recourse within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 of the German Civil Code (BGB)) without limitation in addition to the claims for defects. In particular, we shall be entitled to demand from the supplier exactly the type of subsequent performance (repair or replacement delivery) that we owe to our customer in the individual case. Our statutory right of choice (§ 439 para. 1 of the German Civil Code (BGB)) shall not be restricted hereby.
(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2) and (3) of the German Civil Code (BGB)), we shall notify the supplier and request a written statement, briefly setting out the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the supplier shall be responsible for supplying counter evidence.
(3) Our claims under supplier recourse shall also apply if the defective goods have been further processed by us or another contractor, e.g. by incorporation into another product.
§ 9 PRODUCER'S LIABILITY, DEFECTS OF TITLE, INDUSTRIAL PROPERTY RIGHTS
(1) If the supplier is responsible for product damage, they shall indemnify us against claims of third parties to the extent that the cause lies within their sphere of control and organization and they theirselves are liable in relation to third parties. This shall also apply if a claim is made against Rühle GmbH by way of producer's liability and the product liability damage occurred due to the defect of a partial product supplied by the supplier, the supplier shall be obliged to indemnify Rühle GmbH against such claims. In cases of fault-based liability, however, this shall apply only if the supplier is at fault. If the cause of damage lies within the supplier's sphere of responsibility, the supplier shall bear the burden of proof in this respect.
(2) Within the scope of their indemnification obligation, the supplier shall reimburse all costs and expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a claim by third parties including recall actions carried out by us, including the costs of any legal prosecution and defense. We shall inform the supplier of the content and scope of recall measures - insofar as this is possible and reasonable - and give them the opportunity to comment. Further legal claims shall remain unaffected.
(3) The supplier shall take out and maintain product liability insurance with a lump sum coverage in an appropriate amount.
(4) The supplier warrants that the goods are delivered free of third-party rights and that no third-party rights are infringed by the delivery. In this respect, the supplier shall indemnify us against any claims of third parties upon first request.
(5) The supplier shall be liable for ensuring that the property rights of third parties are not infringed in the performance of the contract and in the delivery and use of the object of the delivery or service. He shall indemnify Rühle GmbH against any claims of third parties arising from any infringements of property rights.
§ 10 MEANS OF PRODUCTION, PRODUCTION SAMPLES
(1) Drawings, models, samples, measuring and testing equipment, delivery and testing specifications, printing templates and similar items as well as tools provided by Rühle GmbH for the purpose of executing the order or created by the supplier for Rühle GmbH shall be the property of Rühle GmbH.
(2) The aforementioned means of production as well as the items made with the aid thereof may not be used for other purposes, reproduced or handed over to third parties without the written consent of Rühle GmbH. The means of production shall be secured by the supplier against unauthorized inspection and use. They shall be returned by the supplier to Rühle GmbH without being requested to do so if the supplier no longer requires them for the further performance of the delivery or service. Rühle GmbH shall have the exclusive right to use any developments arising from the order and any further developments resulting therefrom.
§ 11 STATUTE OF LIMITATIONS
(1) The reciprocal claims of the contracting parties shall become statute-barred in accordance with the statutory provisions unless otherwise provided hereinafter.
(2) Notwithstanding § 438 para. 1 no. 3 of the German Civil Code (BGB), the general limitation period for claims for defects shall be 2 (two) years from the passing of risk. The 2-year-limitation period shall apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for claims in rem of third parties for surrender of possession (§ 438 para. 1 no. 1 of the German Civil Code (BGB)) shall remain unaffected; claims arising from defects of title shall furthermore not become time-barred in any case as long as the third party can still assert the right - in particular in the absence of a limitation period - against us.
(3) The limitation periods of the law on sales including the above extension shall apply - to the extent provided by law - to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 of the German Civil Code (BGB)) shall apply to this, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
§ 12 INTEGRITY, PROHIBITED AND DECLARABLE SUBSTANCES, EXPORT CONTROL CLAUSE
(1) The supplier shall provide the products and/or services in compliance with all applicable laws, regulations and procedural rules.
(2) The products delivered to us shall comply with the legal requirements. Compliance with these requirements does not release the supplier from the responsibility to observe any other applicable laws and regulations.
(3) The supplier is obliged to inform us of any licensing requirements for (re-)exports of their goods in accordance with German, European, US and other applicable export regulations. To this end, the supplier shall, if not already included in their offer, provide the following information on the purchaser's request when accepting an order and on each delivery bill for the relevant items of goods:
- the goods list number of Annex I of the EU Dual-Use Regulation or Part I of the Export List
- the ECCN (Export Control Classification Number) or EAR99 marking
§ 13 CONFIDENTIALITY, DATA SECURITY AND PROTECTION, ADVERTISING
(1) The supplier shall treat all data and information provided by us as strictly confidential. This shall apply regardless of whether such data and information were received before or after acceptance of the contract. The supplier shall limit disclosure to those of their employees, agents or subcontractors or other third parties who need to know for the purpose of delivering the products and/or performing the services to us. The supplier shall also ensure that such employees, agents, subcontractors or other third parties are subject to and comply with the same confidentiality obligations as the supplier and the supplier shall be liable for any unauthorized disclosure.
(2) The supplier may not use data and information for any purpose other than the delivery of the products and/or provision of the services and may not reproduce them in whole or in part in any form without our prior written consent.
(3) If we transfer personal data to the supplier, the supplier must comply with all applicable data protection laws and regulations.
(4) Without our prior written consent, the supplier shall not issue any press releases or use the name (including logo) of Rühle GmbH for advertising, trade or other commercial purposes.
§ 14 TERMINATION, WITHDRAWAL, FORCE MAJEURE
(1) Without prejudice to any other rights of termination or withdrawal, Rühle GmbH shall be entitled to terminate or withdraw from the contract if insolvency proceedings or judicial composition proceedings are instituted against the assets of the supplier or if the supplier suspends payments not only temporarily.
(2) Force majeure within the meaning of the contract means an event which could not be foreseen by the affected party at the time of performance of the contract, is unavoidable and beyond the reasonable control of the affected party, including industrial action with the exception of unlawful lockouts, operational disruptions for which the party is not responsible, riots, official measures and other unavoidable events. Neither party shall be liable for delayed performance or non-performance insofar as the delay or non-performance is the result of an event of force majeure. Provided, however, that it is unable to cope with the event despite all reasonable efforts to do so and that it notifies the other party within ten (10) calendar days from the occurrence of the force majeure event or at the time the supplier becomes aware or should reasonably have become aware of the event, whichever is later. Force majeure events in the area of Rühle GmbH shall entitle Rühle GmbH - without prejudice to its other rights - to withdraw from the contract in whole or in part, unless they are of insignificant duration or result in an only insignificant reduction of Rühle GmbH's requirements. The parties shall endeavor to keep the effects of an event of force majeure to a minimum.
§ 15 CHOICE OF LAW, PLACE OF JURISDICTION, SEVERABILITY CLAUSE
(1) These GTCP and the contractual relationship between us and the supplier shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) The place of performance for the delivery shall be the place of destination pursuant to §4; the place of performance for the payment shall be Grafenhausen.
(3) If the supplier is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship shall be Waldshut-Tiengen. The same shall apply if the supplier is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB). However, in all cases we shall also be entitled to pursue legal proceedings at the place of performance of the delivery obligation in accordance with these GTCP or a prior individual agreement, or at the general place of jurisdiction of the supplier. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
(4) The invalidity or unenforceability of any provision of the GTCP shall not affect the validity or enforceability of the remaining provisions. The parties shall agree on valid and enforceable provisions which come as close as possible to the economic effect of the invalid or unenforceable provision.
Rühle GmbH, Beim Signauer Schachen 10, D-79865 Grafenhausen, Germany