General Terms and Conditions for the Purchase of Goods and Services
1.1 These General Terms and Conditions of Business for the purchase of goods and services (hereinafter referred to as "Terms and Conditions") apply exclusively to the business transactions of schaltec GmbH established at 88518 Herbertigen, Rötenweg 16, Germany, or an affiliated company within the meaning of §§ 15 ff. AktG (hereinafter referred to as "SCHALTEC"), companies within the meaning of § 14 of the German Civil Code ("BGB"), legal entities governed by public law or special assets under public law (hereinafter referred to as "Supplier").
1.2 These terms and conditions apply exclusively to all deliveries and services of the Supplier to SCHALTEC. Other provisions, in particular the Supplier's general terms and conditions, do not apply, irrespective of whether they have been expressly rejected by SCHALTEC or not. These Terms and Conditions also apply exclusively if SCHALTEC performs or accepts a service without reservation in the knowledge of other terms and conditions.
1.3 These terms and conditions also apply to future similar legal transactions between SCHALTEC and the Supplier.
1.4 Individual agreements between SCHALTEC and the Supplier are given priority in individual cases. Subject to evidence to the contrary, the content of such agreements shall be subject to a written contract or written confirmation by SCHALTEC.
1.5 Indications of the applicability of legal provisions have only clarification purposes. The statutory provisions, therefore, apply independently of any corresponding clarification, insofar as they are not directly amended or expressly excluded in these terms and conditions.
2. Conclusion of Contract / Contract
2.1 Offers, cost estimates, and other services of the Supplier that prepare the conclusion of the contract shall be free of charge. Unless the offer provides for a longer binding period, the Supplier is bound to its offer for four (4) weeks.
2.2 Orders from SCHALTEC are only legally binding if they are placed in writing. Orders made orally or by telephone require subsequent written confirmed by SCHALTEC in order to be effective. In order to preserve the written form, telecommunication means that do not transmit at least one (1) copy or facsimile of the signature of the exhibitor, in particular simple e-mails are sufficient.
2.3 The Supplier is obliged to confirm orders within a maximum period of five (5) working days by way of a binding order confirmation in text form via email to email@example.com or by delivery or performance. After this period, SCHALTEC is no longer bound by the order. Any delayed acceptance will be considered a new offer and requires acceptance by SCHALTEC. An order confirmation that deviates from the order, in particular concerning quantities, prices, delivery dates, properties of the ordered deliveries or services, is deemed to be a new offer and requires acceptance by SCHALTEC.
2.4 If an order from SCHALTEC is not (belatedly) received by the Supplier within the period in which the Supplier adheres to its offer submitted to SCHALTEC, the Supplier must notify SCHALTEC of the delayed receipt of the order from SCHALTEC immediately after receipt of the order declaration from SCHALTEC.
3. Prices and Payment
3.1 The prices stated in the order are binding.
3.2 Unless otherwise stated in SCHALTEC's order, the prices are binding to DDP Incoterms® 2020 including packaging and loading as well as VAT at the statutory rate, unless this is shown separately in the invoice.
3.3 Invoices must be sent separately for each order and delivery, specifying the order number and other order identification numbers (including vendor number, item number, order item, cost centre) as a PDF via e-mail to firstname.lastname@example.org. Multiple invoices may not be combined into one PDF.
3.4 A duplicate invoice must be marked as such. The tax number must be indicated on the invoice.
3.5 The agreed price is due for payment within thirty (30) calendar days of full and defect-free delivery or service (including any agreed acceptance) and receipt of a proper invoice for payment. If SCHALTEC pays within fourteen (14) calendar days, the Supplier shall grant SCHALTEC a three percent (3%) discount on the net amount of the invoice.
3.6 Insofar as SCHALTEC is obliged to make advance payments in individual cases, the Supplier must, in return, provide SCHALTEC with a self-debt guarantee of a credit institution that is fully authorized in Germany collateral for the reimbursement of overpaid advance payments due to final non-performance or bad performance.
3.7 Payments made by SCHALTEC to the Supplier do not constitute recognition of the Supplier's delivery or performance as being in accordance with the contract.
3.8 If the Supplier has demonstrably made an agreement when submitting his offer or in the context of the provision of deliveries and services to SCHALTEC, which constitutes an inadmissible restraint of competition or an unfair behavior, he has to pay 15% of the invoice amount as lump-sum compensation to SCHALTEC, unless a different amount of damage is proven.
4. Delivery and Service Time, Delivery, Delay in Delivery and Acceptance
4.1 The delivery and performance times specified in the accepted order from SCHALTEC are binding. If no delivery and/or performance time is specified in the order and no other agreement has been made, the delivery and/or performance time shall be four (4) weeks from the conclusion of the contract. The Supplier is obliged to inform SCHALTEC immediately in writing if it is unlikely to be able to meet agreed delivery/performance times – for whatever reason. The arrival of the delivery at the delivery address or place of receipt specified in the order shall be decisive for compliance with delivery/performance times. If acceptance is contractually agreed, then successful acceptance shall prove decisive.
4.2 Unless otherwise agreed, deliveries will be made at the DDP Incoterms® 2020 in force at the time of the conclusion of the contract to the delivery address specified in the order.
4.3 Premature deliveries and services as well as partial deliveries and partial services by the Supplier are only permitted after prior consultation and written consent by SCHALTEC. Otherwise, SCHALTEC has the right to return the delivery at the expense and risk of the Supplier. Should SCHALTEC accept such a delivery, the payment period according to Subsection 3.5 does not begin before the agreed delivery/performance date.
4.4 The full order numbers and other agreed information (including creditor number, item number, order item, etc.) must be stated on all shipping notes, consignment notes or other delivery documents, invoices or other correspondence. A delivery note must be enclosed with the delivery.
4.5 The Supplier must, at the latest, upon delivery of the goods to be purchased by the Supplier (hereinafter referred to as “Delivery Items”) hand over the required quality certificates to SCHALTEC and must provide all proofs required for the delivery and their contractually stipulated or customary use, such as test certificates, analysis reports, acceptance certificates, without delay, but at the latest upon delivery of the Delivery Items.
4.6 In the event of a delay in delivery for which the Supplier is responsible, SCHALTEC is entitled, without prejudice to other statutory claims, to demand payment from the Supplier of a contractual penalty of a quarter percent (0.25 %) of the delivery value of the delayed delivery per calendar day of delay, but not more than a total of five percent (5 %) of the delivery value of the delayed delivery. Forfeited contractual penalties shall be offset against other claims for damages due to delay.
4.7 Circumstances that jeopardize compliance with agreed delivery dates must be reported to SCHALTEC immediately in writing. SCHALTEC's right to withdraw from the contract or to claim damages for non-performance under the statutory requirements remains unaffected, subject to any imputation under Subsection 4.6
5 Transfer of Risk
In the case of deliveries of Delivery Items for which the Supplier is not contractually obligated to set up or assemble at the place of performance, the risk of accidental loss and accidental deterioration of the Delivery Items shall pass to SCHALTEC upon the handover of the Delivery Items to the delivery address indicated by SCHALTEC. Insofar as acceptance by SCHALTEC is to take place, the decisive time for the transfer of risk is the time of acceptance by SCHALTEC. The handover or acceptance is the same if SCHALTEC is in default of acceptance.
6 Regulatory Compliance, Import, and Export
6.1 The Supplier is responsible for ensuring that the Delivery Items or parts thereof comply with all applicable laws, guidelines, regulations, or other public law provisions and regulations of authorities and professional associations.
6.2 In particular, the Supplier must ensure that the Delivery Items or parts thereof are not subject to national or international export restrictions. Should a Delivery Item or parts thereof be subject to such an export restriction, the Supplier shall procure the necessary export licenses for worldwide export at its own expense. Should a Delivery Item or parts thereof be subject to such export restrictions, it is the Supplier's responsibility to procure the necessary licenses for import and worldwide export at its own expense and in good time before delivery of the Delivery Items to SCHALTEC.
7 Rights of use
7.1 For the use of samples, cost estimates, drawings, documentation, and similar information of a physical or intangible nature concerning individually manufactured goods, the Supplier grants SCHALTEC the exclusive right of use within the meaning of § 31 (3) of the German Copyright Act (UrhG). Any use by the Supplier or the respective author is excluded. The granting of the right of use is free of charge, is not limited to content, and is not limited in time.
7.2 Samples, cost estimates, drawings, documentation, and similar information of a physical or intangible nature, the ownership of which has been transferred to SCHALTEC or in which SCHALTEC is granted a right of use under the preceding paragraph, may be used by SCHALTEC in the context of proper business transactions and may be passed on to third parties.
8 Quality, Defects Examination
8.1 Deliveries and services must comply with quality agreements and the state of the art. In particular, the information presented in the quality certificates, acceptance certificates, test certificates, and analysis reports, as well as specifications agreed upon, are to be regarded a quality agreement
8.2 Without prejudice to SCHALTEC’s obligations under Subsection 8.3, the Supplier must check the Delivery Items for completeness and lack of defects before delivering the Delivery Items to SCHALTEC. In doing so, the Supplier must carry out final initial checks and, where appropriate, final testing which enables the Supplier to ensure that the entire scope of delivery is free of defects and is complete.
8.3 For the commercial obligation to inspect and give notice of defects, the statutory provisions (§§ 377, 381 of the German Commercial Code ("HGB") apply to the following provisions: In the case of deliveries of larger quantities, SCHALTEC's obligation to inspect is limited to defects that are revealed in the case of random inspections of goods under external inspection (including the delivery documents) (e.g. transport damage, false or under-delivery). The reprimand remains unaffected. Without prejudice to the investigative authority of SCHALTEC, the complaint (notification of defects) shall in any case be deemed to be immediate and timely if it is made within two weeks of discovery or, in the case of obvious defects from delivery.
9 Rights of Defect
9.1 Unless otherwise specified below, SCHALTEC's rights in the event of material and/or legal defects are governed by the statutory provisions.
9.2 By way of derogation from § 443 (1) s. 2 of the German Civil Code (BGB), SCHALTEC is entitled to claims for defects without limitation even if SCHALTEC has remained unaware of the defect at the time of conclusion of the contract as a result of gross negligence.
9.3 Without prejudice to the statutory rights of SCHALTEC, the following applies: If the Supplier fails to fulfill its obligation of supplementary performance - at SCHALTEC's discretion, by remedying the defect (repair) or delivering a defect-free item (subsequent delivery) – within a reasonable period of time set by SCHALTEC, SCHALTEC can remedy the defect itself and demand compensation from the Supplier for the necessary expenses. In urgent cases, such as endangering operational safety or preventing the occurrence of disproportionate damage, SCHALTEC is entitled to remedy an existing defect itself without setting a corresponding deadline and to demand compensation from the Supplier for the expenditure required for this purpose. The Supplier must be informed of such action without delay. if possible before the self-performance is carried out. The right of self-performance does not exist if the Supplier would be entitled to refuse corresponding subsequent supplementary performance under the statutory provisions. By way of derogation from § 438 (1) No. 3 BGB, the general limitation period for claims for defects is three years from the transfer of risk. Insofar as acceptance has been agreed upon, the period of limitation begins with acceptance.
9.4 The statutory recourse claims are fully entitled to SCHALTEC. The claims arising from Supplier recourse are also entitled to SCHALTEC if the defective goods have been further processed by SCHALTEC or another company, e.g. by installation in another product.
10 Recall, Serial Error
10.1 Insofar as SCHALTEC requires and uses the Delivery Items for further processing to specifically manufactured by SCHALTEC, described in more detail in the specification/service description/order (hereinafter referred to as "SCHALTEC end products") and sells them to customers of SCHALTEC (hereinafter referred to as "SCHALTEC end customers"), the following applies.
10.2 In the event that, based on sufficient, the item delivered by the Supplier has a serial defect, SCHALTEC is entitled, at its sole discretion, to recall its final products delivered to the end customer (hereinafter referred to as "recall"). A serial error occurs when more than five percent of the Delivery Items have similar defects. Recall within the meaning of this Subsection means that SCHALTEC can take all measures to ensure that the end customer does not suffer any disadvantages through the use of the Delivery Items; in particular,
SCHALTEC may issue warnings and arrange for the replacement of the defective Delivery Items.
10.3 If SCHALTEC notifies the Supplier of a recall under Subsection 10.2, the Supplier will provide SCHALTEC with all necessary information to enable SCHALTEC to assess the effects and consequences of the serial error in order to completely eliminate the defect in each recalled SCHALTEC end product. The Supplier shall in all cases communicate the batch number and all information concerning the production and development of the batch concerned.
10.4 The Supplier bears the costs of the recall. Costs of the recall are:
- Costs of returning the SCHALTEC end products delivered to the SCHALTEC end customer.
- Costs of repairing and replacing defective SCHALTEC end products.
- Costs of the delivery of the repaired and/or replaced SCHALTEC end products to the SCHALTEC end customer following a recall.
- Costs of scrapping the defective Delivery Items, insofar as the complete elimination of the defects in the Delivery Items by repair for SCHALTEC and the Supplier is not possible.
- Costs of scrapping the SCHALTEC end products returned to SCHALTEC as part of the recall, insofar as it is not possible for SCHALTEC to completely remedy the defects of the SCHALTEC end products.
- Costs of the employees employed by SCHALTEC who are deployed to remedy all defects in the context of the recall, at a flat rate of sixty (60) Euros.
- Costs and expenses to satisfy reductions and claims for damages that SCHALTEC’s end customers claim against SCHALTEC.
10.5 The Supplier is obliged to supply SCHALTEC at its own expense with a replacement for all Delivery Items that have been replaced during the course of the recall by SCHALTEC.
11 Retention of Title
11.1 Reservation of ownership of the Supplier that goes beyond the simple retention of title is excluded. If the Supplier has reserved the right of ownership of delivered items, this reservation of ownership only applies until payment of these items, unless SCHALTEC has already become the owner of these items through processing, connection, blending or mixing.
11.2 If SCHALTEC supplies parts to the Supplier, SCHALTEC reserves the title to this. Processing, blending or mixing by the Supplier with other items owned by a party other than SCHALTEC is carried out on behalf of SCHALTEC. In the event of processing, blending or mixing, SCHALTEC acquires co-ownership of the processed, blended and mixed items in the ratio of the value of SCHALTEC's item to the other processed items at the time of processing, blending or mixing.
11.3 Models, samples, production equipment, tools, measuring and testing equipment, otherwise provided materials, drawings, factory standard sheets, and print templates provided to the Supplier of SCHALTEC remain the property of SCHALTEC. 11.4 The documents specified in Subsection 11.3 may only be made available to third parties with the prior written consent of SCHALTEC (§ 183 BGB) (confidentiality). Unless otherwise expressly agreed to in individual cases, the documents referred to in Subsection 11.3 may be requested by SCHALTEC at any time. The Supplier does not have rights of retention with respect to the documents referred to in Subsection 11.3
12 Producer and Product Liability
12.1 If the Supplier is responsible for product damage, it must indemnify SCHALTEC for claims of third parties to the extent that the cause is set within its area of domination and organization and it is itself liable in the external relationship.
12.2 As part of its indemnification obligation, the Supplier must reimburse SCHALTEC expenses under § 683, 670 of the German civil code (BGB) arising from or in connection with the use of third parties, including recall actions carried out by SCHALTEC. SCHALTEC will inform the Supplier of the content and scope of recall measures – as far as possible and reasonable and will allow the Supplier the opportunity to comment. Further legal claims shall remain unaffected.
12.3 In order to secure any compensation claims, the Supplier must conclude operational and product liability insurance with a lump-sum coverage of at least five million Euro (EUR 5,000,000) per personal injury/property damage and maintain such insurance until the expiry of the limitation period for defect rights relating to the last order confirmed by the Supplier.
13 Confidentiality, Third-Party Intellectual Property Rights
13.1 The Supplier undertakes to treat all information provided by SCHALTEC within the scope of the individual contract confidentiality and not to disclose it to any third party.
13.2 The information includes, in particular, all information in written form, including photocopies, as well as drafts, sketches, technical protocols, models, electronic data, regardless of the form in which this information is provided (for example, by means of conversations, long-distance calls, on data carriers of various kinds, by means of data transmission of any kind or by mailing). All information and know-how that are perceived visually and/or acoustically are also collected. Confidential information includes, in particular, all technical data, plans, drawings, calculations, execution instructions, information on developments relating to the goods and services, on research and development projects, and all company data.
13.3 The confidentiality obligation does not apply to information that is generally known and has been lawfully obtained from third parties.
13.4 If the Supplier detects that confidential information has been unlawfully disclosed to third parties, it must inform SCHALTEC of this immediately.
13.5 The Supplier must ensure that no third party intellectual property rights in Germany and abroad are infringed in connection with the delivery or service as well as the intended use of ordered goods of third parties in the domestic territory or abroad are infringed in connection with the delivery or service and the intended use of the ordered goods. If claims are made against SCHALTEC by a third party due to infringements of intellectual property rights, the Supplier must indemnify SCHALTEC against such claims and reimburse SCHALTEC for all expenses that SCHALTEC necessarily incurred from or in connection with the claim by a third party, insofar as the damage caused originates in the Supplier's sphere of control and organization.
14.1 SCHALTEC will not assume the costs of insurance for Delivery Items, in particular for forwarding insurance
14.2 SCHALTEC has independently insured itself against transport damage.
15 Assignment and Pledging
15.1 The assignment or pledging of contractual claims is only effective with the prior written consent of SCHALTEC (§ 183 of the German Civil Code (BGB)).
16 Offset and Exercise of a Right of Retention
16.1 SCHALTEC reserves the right to withhold or offset payments in an appropriate amount in the event of claims for defects or other claims asserted by SCHALTEC.
16.2 The offset or exercise of a right of retention by the Supplier due to disputed or non-legally established counterclaims is excluded, provided that the counterclaims are based on the same contractual relationship.
17 Spare Parts
17.1 The Supplier is obliged to keep spare parts for the Delivery Items for the period of the expected technical use, but for at least ten (10) years after delivery on reasonable terms.
17.2 If the Supplier ceases the production of the spare parts, it is obliged to inform SCHALTEC of this with a reasonable lead time and to allow SCHALTEC to place a final order.
18 References and Publications
18.1 When providing references or publications, the Supplier may only name the company or trademark of SCHALTEC if SCHALTEC has previously given written consent (§ 183 of the German Civil Code (BGB)).
19 Force Majeure
19.1 If SCHALTEC is prevented from fulfilling its contractual obligations, in particular acceptance obligations, as a result of Force Majeure, riots, natural disasters, fire, water, epidemic or pandemic or other unforeseeable circumstances to include acts of God not attributable to SCHALTEC, or the effects of such events, the period for the provision of the contractual service shall be extended in each case by the duration of the hindrance.
19.2 SCHALTEC will immediately inform the Supplier of the commencement and likely end of such circumstances and will take all reasonable measures to remedy the obstruction as soon as possible.
19.3 If the supplier is prevented from fulfilling his contractual obligations in particular delivery obligations, due to Force Majeure, the Supplier will take measures under Subsection 19.2. SCHALTEC may withdraw from the contract if the disability lasts longer than three (3) months. The corona pandemic and its effects are no longer an unforeseeable event, so that it does not release the supplier from his delivery obligations. The supplier must take appropriate precautions to comply with delivery times and delivery quantities.
20 Return Transport Packaging Costs
20.1 The Supplier shall bear the appropriate return transport or disposal costs of the packaging of the Delivery Items.
21 Place of performance
21.1 Unless otherwise agreed, the place of performance for the Supplier's obligations to SCHALTEC is the headquarters of SCHALTEC at schaltec GmbH, Rötenweg 16, 88518 Herbertingen, Germany .
22 Place of Jurisdiction and Choice of Law
22.1 The exclusive – also international – place of jurisdiction for all disputes arising out of or in connection with the contractual relationship is at the headquarters of schaltec GmbH, Rötenweg 16, 88518 Herbertingen, Germany. SCHALTEC reserves the right to take legal action at the legal place of jurisdiction of the Supplier.
22.2 These terms and conditions and all legal relations between SCHALTEC and the Supplier are governed exclusively by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
23 Personal data
24 Severability clause
24.1 Should individual provisions of these terms and conditions be or become ineffective or unenforceable, the remaining provisions shall remain unaffected. In such a case, the parties shall undertake to use an effective and enforceable provision instead of the invalid or unenforceable provision that is as appropriate as possible to the actual and economic purpose of these Terms. The same applies to a gap in conditions.