A. General terms and conditions of purchase
Scope of validity
- These conditions of purchase are subject to all contractual agreements of the companies in the ALTENLOH, BRINCK & CO – Group (hereinafter ABC), in specific:
- ALTENLOH, BRINCK & CO GmbH & Co. KG, Ennepetal
- SPAX International GmbH & Co. KG, Ennepetal
- ABC Umformtechnik GmbH & Co. KG, Gevelsberg
- AZ Ausrüstung und Zubehör GmbH & Co. KG, Hattingen
- SABEU Kunststoffwerk Northeim GmbH, Northeim, Radeberg
with other companies within the framework of the acquisition of goods and services (see also B. Special conditions).
- The inclusion of the general terms and conditions of the contractual partner (hereinafter the Contractor), in the contractual relationship, in particular sales and delivery conditions, is contradicted. They do not form part of this contract. The unconditional acceptance of goods or services by through ABC without express objection based on sales and delivery conditions in order confirmations or other correspondence shall not lead to the inclusion of these terms in the contract.
- The purchase conditions of ABC apply to the entire business relations with the Contractor and are independent of individual contracts from the time of establishment. They also apply to future contracts.
- The conclusion of a contract with ABC always requires a written order. This written form condition is also met by communication by means of electronic data transmission. Verbal supplementary agreements are only effective if confirmed in writing by ABC. This also applies to subsequent modifications and additions to contractual agreements.
- If the Contractor accepts the order with deviations in contents, these deviations must be clearly highlighted or otherwise suitably identified. In this case, the contract will only come into effect if ABC expressly agrees thereto or does not object by the final completion of the order. Further, the acceptance confirmation is deemed as a new offer.
Compliance with legal provisions/notice of concern
- The Contractor is obliged to comply with the state of the art and the applicable laws and regulations, in addition to the requirements of authorities
- Should any applicable laws, regulation or state of the art change between contract conclusion and fulfilment which exercises an effect on the contractual performance, the Contractor shall immediately notify ABC in writing of the change and the ensuing consequences in terms of schedule and costs. ABC pledges to decide upon said changes within a reasonable period of time. If approval is given, the parties shall agree upon an amicable settlement of costs based on the order, and shall amend the contract in writing. Should ABC reject the change, both parties are entitled to terminate the contract.
- Unless otherwise agreed, deliveries are DDP (Incoterms 2010) including packaging to the location stipulated by ABC.
- very delivery must be accompanied by a delivery note. The delivery note must contain details of the order, item and supplier numbers.
- Before goods dispatch, ABC must be notified of the value, weight and date of dispatch in writing.
- If the Contractor is to provide material samples, inspection records, quality documents or other documents, the delivery and service is only deemed to be complete with the submission of these documents.
- ABC is not obliged to accept partial or multiple deliveries not agreed in the contract. This also applies if goods are delivered before the agreed date. If necessary, ABC is entitled to return the goods at the cost and risk of the Contractor, or to store them with a third party.
- If, as a result of a defective delivery, costs arise for ABC, in particular transport, labour or material costs, or costs for an incoming goods inspection that exceeds the normal scope, the Contractor is responsible for meeting said costs.
Time of performance
- Delivery dates are binding. The legally binding cession of schedule extensions presupposes compliance with the written form requirement.
- The Contractor is obliged to inform ABC immediately in writing when circumstances occur or are identified which make it impossible to meet the agreed schedule. The duty to comply with the originally agreed date remains unaffected.
- The Contractor can only make a claim for missing, required documents to be supplied by ABC if they have not received said documents within a reasonable period, despite a prompt written request.
- In cases of force majeure, such as raw material or energy shortages, strikes, lock-outs, seizures, interference by public authorities, war, civil unrest, work stoppage, etc., ABC is absolved from its acceptance and payment obligations for the duration
- By exceeding delivery or service periods or other schedules after a reminder, the Contractor is considered to be in default. The legal consequences are determined by the laws and stipulations below.
- Subject to deviating, individual agreements, the Contractor shall in the event of default, owe a contractual penalty of 0.5 % of the net order value for every commenced calendar week of delay to a maximum of 5 % of the net order value. The contractual penalty can also be enforced even after receipt of the service until final payment, without requiring a penalty reservation for deliveries. The contractual penalty shall be credited against any claims for damages. For the rest, the Contractor is entitled to prove that the actual damage incurred was lower than the contractual penalty.
Transfer of risk
- Risk is transferred to ABC upon delivery.
- This also applies if deviating delivery agreements have been met, such as EXW deliveries (Incoterms 2010).
- ABC will examine incoming goods for defects in the ordinary course of business. A visual inspection and approximate quantity or weight tests are generally deemed sufficient. For larger quantities, the inspection is limited in all cases to control sampling.
- Should defects be identified by ABC after delivery, complaints made within 14 days of defect discovery are considered as timely.
Warranties and product liability
- The Contractor guarantees compliance with the contractual duties in relation to the quality of the products to be supplied and the suitability of the products for the use specified in the contract. As far as is possible and reasonable, ABC shall offer the Contractor an opportunity to remedy defects through repair or replacement at the discretion of ABC. In the event of a rescinded transaction, the return delivery will be made ex works ABC. The risk of accidental loss or damage is transferred to the Contractor with the receipt of the advice of cancellation.
- Warranty claims are subject to the statutory limitation rules with the proviso that the limitation periods are extended by six months.
- In the case of product liability in accordance with the Product Liability Act, the Contractor shall, at first request, exempt ABC from all third-party claims made against ABC as the manufacturer, provided that such claims have been caused by the Contractor. In such cases, the Contractor is further obliged to assume the legal defence with due care and in coordination with ABC. The Contractor shall assume all costs and expenses that may arise in connection with the legal defence of ABC. For the rest, statutory provisions apply.
If waste is produced within the framework of the contractual performance of the Contractor, the Contractor shall utilise or dispose of such waste at their own cost and in accordance with the provisions of waste legislation, unless otherwise agreed in writing. Ownership, risk and the legal responsibility for the waste are transferred to the Contractor at the time of waste generation.
- The prices stipulated in the order are binding and include packaging, freight and duty costs.
- The invoices must be completed in duplicate and must meet legal requirements. They are to be sent separately to orders after contract completion to the invoice address stated in the order. Order numbers must be specified. All accounting documents are to be enclosed.
- Electronic invoices must meet the legal requirements for authorisation of tax deduction (digital signature).
- Incorrect or non-auditable invoices shall not validate any payment deadline.
- Invoices for partial services are not permitted unless otherwise agreed. Invoices for partial services must always be marked as such.
- Original invoices may not be enclosed with goods deliveries.
- Payments are only due after receipt of the goods and invoice and once the agreed delivery date has passed.
- Unless otherwise agreed, payments are made within 10 days from delivery and invoice receipt with 3 % discount or within 30 days net.
- Discounts are also permitted if ABC sets off or retains payments to a reasonable amount due to defects; the payment period begins after complete removal of the defects.
- Payments shall not constitute recognition of the performance as in accordance with the contract.
- ABC shall only be considered in default if no payment is made after a reminder from the Contractor is send after the payment due date.
- If advance payments are contractually agreed upon, they are only due if ABC is presented with a hedging, directly enforceable, unlimited and unconditional advance payment bond for the amount of the advance payment, which must be supplied upon first request and come from a bank under the control of the Federal Office for Financial Services or a public savings bank.
- ABC is entitled to offset all claims made against the Contractor by a company of ABC, against payment requests from the individual orders.
- If ABC is entitled to claims against other companies that belong to the same group as the Contractor, ABC may withhold payments until the claims against this company have been settled.
- Transfers and other assignations of the rights and duties of the Contractor outside of the scope of Section 354 as of the German Commercial Code are excluded.
Usage and property rights
- ABC may use the object of the contract, including the underlying patent and other intellectual property rights, in their company area without restrictions and for an unlimited period. This usage right also entitles them to modify the object of the contract and includes illustrations, drawings, calculations, analysis methods, recipes and other works that are produced or developed by the Contractor during contract conclusion and execution. For the purpose of reproducing replacement and spare parts and for modifications, ABC may give documents to third parties.
- The Contractor guarantees that the rights of third parties, in particular of their subcontractors, do not conflict with the granting of usage rights and therefore exempts ABC from all relating claims.
- The limitation period for obligations concerning freedom from conflicting property rights is 10 years from contract conclusion.
Retention of title/provisions/tools
- If ABC provides the Contractor with parts, ABC reserves all ownership thereof. Processing or transformation by the Contractor will be done on behalf of ABC. If these parts are processed with other objects that do not belong to ABC, ABC shall hereby acquire joint acquisition of the new item in proportion of the value of the parts (purchase price plus VAT) to the other processed items at the time of processing.
- If the parts provided by ABC are inseparably mixed with other objects that do not belong to ABC, ABC shall hereby acquire joint acquisition of the new item in proportion of the value of the parts (purchase price plus VAT) to the other mixed items at the time of processing. If the mixture is made in such a manner that the Contractor’s item is to be regarded as the main item, it is agreed that the Contractor shall transfer pro-rata co-ownership to ABC; the Contractor shall uphold sole ownership or joint ownership for ABC.
- If the Contractor is contractually obliged to manufacture tools/machines, ownership thereof shall be transferred to ABC after production and payment of the manufacturing costs. If the tools/machines to be used to manufacture parts remain with the Contractor, the transfer of the tool/machines will be replaced by the fact that the Contractor has the tools/machines for ABC and ABC acquires indirect possession. ABC and the Contractor agree to this today. The tools/machines shall only be supplied to the Contractor by ABC for production purposes. ABC has the right to demand the tools/machines from the Contractor at any time. The provisions stipulated in Section 4 also apply.
- The tools/machines supplied to the Contractor remain the property of ABC. The Contractor is obliged to use the tools/machines exclusively for the production of goods ordered by ABC. The Contractor is further obliged to insure all tools/machines belonging to ABC against fire, water and theft at their own expense. Simultaneously, the Contractor assigns all damage claims from this agreement to ABC; ABC accepts this assignment. The Contractor is obliged to promptly carry out any required maintenance and inspection tasks on the tools/machines provided by ABC, including all service and repair work at their own expense. They must inform ABC of any faults immediately; if this duty is neglected, claims for damages shall remain unaffected.
- All documents provided by ABC remain the property of ABC. They may not be made accessible to third parties and must be returned to ABC in their entirety and without request upon completion of the contract. The specialised experts and sub-contractors commissioned by the Contractor are not deemed as third parties if they have pledged secrecy to the Contractor in an equal manner. The Contractor is liable for all damage that may arise for ABC due to breach of this obligation.
Confidentiality and data protection
- The Contractor is obliged to treat all technical and commercial information from and about ABC, which they receive during the execution of this contract, with complete confidentiality. This does not apply to information that was already known to the Contractor upon receipt or that which is freely accessible.
- The Contractor is obliged to observe the statutory provisions on data protection, including the written commitment of employees in accordance with Section 5 of the Federal Data Protection Act (BDSG). They must also impose these obligations upon all persons commissioned in the execution of the contract.
Evaluation or disclosure of business relations with ABC in publications or for advertising purposes is only permitted with the express prior agreement of ABC.
- The place of performance for the services of the Contractor is the headquarters of the commissioning company of ABC, unless a different delivery location is specified.
- German law applies to this contractual relation, excluding the CISG.
- Providing that the Contractor is a merchant in accordance with the German Commercial Code, and a legal entity under public law or public fund assets, the exclusive place of jurisdiction for all conflicts arising from this contract is the specified headquarters of ABC. Notwithstanding the above, ABC is also entitled to sue the Contractor at their court of jurisdiction.
- If any of these conditions be or become invalid or unenforceable, all other provisions remain unaffected. The contractual parties are obliged to replace the invalid/unenforceable provision with another one that comes closest to its economic intent at the beginning of the invalidity/non-enforceability.
B. Special conditions for work, work delivery and service contracts
- These special conditions shall apply in addition to the general conditions of purchase of the companies in the ABC Group in case of the presence of a work, work delivery or service contract.
- The receipt of goods as described in the general conditions will be replaced in the case of a work or work delivery contract by the acceptance of goods, and in the case of a service contract, through the completion of performance.
Change of service
- Changes/extensions to the scope of the contract, the necessity of which is only recognised during contract execution, shall be submitted by the Contractor to ABC immediately in writing. The changes/extensions shall only become valid with the written authorisation of ABC.
- Requests for changes by ABC are to be reviewed by the Contractor within 10 working days and written notification of the result sent to ABC. In particular, impacts on costs and schedules should be highlighted. Should ABC decide to implement the changes, the contractual parties shall adapt the contract accordingly in writing.
Use of sub-contractors
- The use of sub-contractors and suppliers requires the prior written agreement of ABC.
- Supplier goods must be subjected to a strict quality control by the Contractor. Referring to the outgoing goods inspection by the supplier is not permitted.
- If the Contractor commissions a sub-contractor without prior written agreement, ABC is entitled to withdraw from the contract and/or claim for damages.
Notice of objection
The Contractor is obliged to provide ABC with immediate written notification of any objections against the proposed method of implementation or the service of another operator.
Change of personnel
- ABC is entitled to demand the removal of personnel active on the premises of ABC for good reason. This especially applies when justifiable doubts exist concerning experience and/or qualifications or when occupational safety/environmental regulations are not observed. In this case, the Contractor pledges to provide a qualified substitute without delay. The schedules agreed upon remain unaffected.
- Removal of personnel by the Contractor requires the agreement of ABC.
- All costs incurred in a change of personnel are to be met by the Contractor.
- No costs shall be invoiced for staff for an appropriate induction period.
Entering factory premises
- All entry to the factory premises must be announced in a timely manner.
- The instructions of ABC technical staff must be followed
- In the case of a work or work delivery contract, ABC shall accept the goods/services within a reasonable period of time.
- Acceptance may also be refused due to minor defects.
- For the rest, statutory provisions apply
(Issued: March 2011)