General Terms and Conditions of Purchase of HC Kunststoffwerk Rülzheim GmbH
(1) All deliveries, services and offers of the suppliers of HC Kunststoffwerk Rülzheim GmbH (“HC”) shall be made exclusively on the basis of these General Terms and Conditions of Purchase These shall form an integral part of all contracts concluded by HC with its suppliers for the deliveries and services offered by them. They shall also apply to all future deliveries, services or offers to HC, even if they are not expressly agreed again.
2 Counter-confirmations of the suppliers with reference to their terms and conditions of business or delivery are hereby rejected. Terms and conditions of the suppliers or third parties shall therefore not apply, even if HC does not object to their validity in individual cases. Even if HC refers to a letter containing or referring to the terms and conditions of the supplier or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
II. Formation of Contracts
(1) Orders shall only be legally binding if they are placed in writing by HC.
Amendments and supplements to the order as well as to the resulting contract and all other agreements between the parties concerning the execution of the contract must be made in writing in order to be effective. 3.
Orders shall be accepted by the Supplier within 7 days. 4.
4. remuneration or reimbursement of costs for visits or for the preparation of cost estimates, project studies or other documents preparing the conclusion of the contract shall not be made.
1. the agreed prices are fixed prices plus the statutory value added tax. The prices also include delivery, packaging and all ancillary costs.
2. invoices are to be sent in duplicate to the address stated in the order. It is not permissible to send the invoice before dispatch or together with the goods; in the case of services to be rendered, it is also not permissible to send the invoice before they have been rendered in full.
3. invoices can only be processed by HC if the order number is accurately reproduced. Inaccurate or incomplete invoices shall be deemed not received until corrected. In the event of an inaccuracy or incompleteness, HC will notify the Supplier within a reasonable time.
4. at HC’s option, payment shall be made within 21 days with a 3% discount or within 45 days net from the date of receipt of the Supplies or receipt of the invoice, whichever is later.
5 HC shall have the right to sell the Deliveries to third parties in the ordinary course of business, even before full payment has been made.
6. HC shall be entitled to the statutory rights of set-off and retention.
1. deliveries shall be made “free delivery address” or “free place of performance” (DDP Incoterms 2000) as specified in the order. If the delivery address or the place of performance is not specified in the order, deliveries shall be made free Rheinzaberner Strasse 7,
(2) Shipment shall be at the risk of the Supplier; the latter shall be liable for accidental damage or destruction up to the time of delivery or – if relevant – up to the time of acceptance at the place of delivery or performance.
3. all shipping bills, waybills or other delivery documents, invoices and other correspondence shall state the complete order numbers and other agreed information. The supplier shall be liable for possible consequences of culpable omissions in this context.
V. Delivery dates/delay
1. agreed delivery times and dates are binding. The date of receipt of the Supplies at the delivery address or place of performance specified by HC shall be decisive for compliance with the delivery times or dates.
In the event that the Supplier becomes aware of circumstances due to which the delivery date cannot be met, the Supplier shall notify HC in writing without delay and inform HC of the reasons for and the expected duration of the delay.
The Supplier shall be liable for all direct and indirect damages resulting from the delay. The acceptance of delayed deliveries by HC does not affect this liability.
4. in the event of delay, HC is entitled to claim damages for delay in delivery after a reminder, to the extent required by law. In addition, after the expiry of a reasonable grace period, HC is entitled to claim damages instead of delivery, to obtain the delivery from third parties or to withdraw from the contract. It is not necessary to set a period of grace in the event that a fixed-date transaction has been agreed.
5 HC is not obliged to accept deliveries before the agreed delivery date. In the event of non-agreed early delivery, HC reserves the right to return the Deliveries at the Supplier’s expense and risk. If the Supplies are not returned in such case of early delivery, they shall be stored at the Supplier’s expense and risk until the agreed delivery date. 6.
6. the supplier is not entitled to make partial deliveries. In the event of partial deliveries expressly agreed in writing, the delivery documents shall state precisely the respective outstanding part including the delivery date.
VI. Claims for defects
(1) The supplier shall be responsible for ensuring that all deliveries are free of material defects, comply with the current state of the art, the applicable statutory regulations, the official directives and the regulations of the employers’ liability insurance associations, the professional organizations and the trade associations.
professional organizations and trade associations, have the agreed quality and comply with the agreed specifications. HC is entitled to the legal claims to the full extent.
(2) Should the Supplier have any concerns regarding the legality or feasibility of a design or execution required by HC or regarding the specifications, the Supplier is obliged to inform HC immediately in writing.
(3) In the event of obvious defects in the Supplies, HC shall give written notice of such defects as soon as possible after their discovery in the ordinary course of business.
(4) In the event of defects of which the Supplier is notified before the expiry of the limitation period, the Supplier shall remedy such defects without delay and without charging any additional costs. Subsequent performance shall be effected, at HC’s option, either by repair or by replacement delivery. Any further claims for defects on the part of HC, such as withdrawal from the contract, reduction of the purchase price (abatement), replacement delivery and/or compensation for damages
In the event of serial defects (defects of the same type occurring in at least 5% of the deliveries), HC shall be entitled to reject the entire delivery quantity as defective and to assert the claims for defects to which HC is legally entitled for the entire delivery quantity.
If the Supplier does not comply with HC’s claims for defects within the reasonable period of time set by HC, HC shall be entitled to perform the actions necessary to remedy the defects itself or to have them performed at the Supplier’s expense and risk and without any influence on the claims for defects to which HC is entitled beyond that. In the event of imminent danger or special urgency, in particular in the event of an imminent production stoppage at HC or at the production facilities of HC’s customers, HC shall be entitled to remedy the defects itself or have them remedied by third parties immediately at the Supplier’s expense. In such a case, HC shall inform the Supplier within a reasonable time. With regard to HC’s duty to mitigate damages, HC is entitled, without any obligation to agree on prices, to repair insignificant defects itself and to charge the costs incurred for this to the Supplier. Any further claims for defects shall remain unaffected.
The limitation period for defect claims shall be 36 months from delivery or, if agreed, from acceptance. For parts which cannot be kept in operation during a pending defect inspection and/or repair, the relevant limitation period shall be
the relevant limitation period shall be extended by the duration of the interruption. For repair or replacement parts as well as parts repaired by the Supplier in performance of its obligations to remedy defects, the limitation period shall start anew from the time of the repair/replacement delivery. Legally provided, longer limitation periods shall not be shortened by this provision. If not more than 6 months have passed since the transfer of risk, it shall be assumed that a defect already existed at the time of the transfer of risk. 8.
(8) All minimum durability or expiry dates stated by the Supplier shall be deemed to be durability guarantees in accordance with § 443 of the German Civil Code (BGB).
(9) The Supplier shall also be liable for defects of title for which it is not responsible. In this case HC is entitled to claim damages according to § 437 BGB. The limitation period for claims based on defects of title shall be 36 months from the time HC has become aware of the circumstances giving rise to the claim or – in the case of grossly negligent ignorance – should have become aware of them. However, it is in no case longer than 10 years.
10. the statutory provisions (§§ 478, 479 BGB) shall apply to possible rights of recourse due to defects, but with the following addition: HC shall also be entitled to a right of recourse against the suppliers if a purchase of consumer goods is not affected. HC can demand compensation from the supplier for the damage and expenses pursuant to Section 478 of the German Civil Code (BGB) that are claimed against HC by a customer of HC. In deviation from Section 479 (2) of the German Civil Code (BGB), HC’s recourse claims against the Supplier shall not become time-barred before the expiry of 6 months after the date on which HC has satisfied the Customer’s claims. In the case of defects of title, the limitation period shall not commence before the expiry of 10 years after receipt of the delivery.
VII Product Liability
(1) In the event that claims are asserted against HC for the violation of official safety requirements or national or foreign product liability laws due to a defect in HC products resulting from the Supplies, the Supplier shall be obliged to indemnify HC against such claims upon first request, insofar as the damage caused originates in the Supplier’s area of responsibility or organization and the Supplier itself is liable in the external relationship. The Supplier shall also be obliged to reimburse HC for all costs pursuant to Sections 683, 670 of the German Civil Code (BGB) incurred in connection with possible recall actions. HC shall inform the Supplier of the nature and scope of any recall actions as far as possible and as far as HC can reasonably be expected to do so, and shall give the Supplier the opportunity to comment. 2.
(2) The Supplier shall maintain a quality assurance program which is appropriate in nature and scope and which reflects the state of the art. Suitable evidence shall be provided to HC upon request. To the extent HC deems it necessary, the Supplier shall enter into an appropriate quality assurance agreement with HC. In addition, the Supplier shall take out and maintain product liability insurance with an appropriate coverage amount and provide HC with a copy of the insurance policy upon request.
VIII.Industrial Property Rights
(1) The Supplier shall warrant that all Deliveries are free from patent or other industrial property rights as well as copyrights and that neither patents nor other industrial property rights, copyrights or licenses of third parties are infringed. The Supplier undertakes to indemnify HC as well as its customers against all claims of third parties resulting from an infringement of patent or other industrial property rights, copyrights or licenses. Furthermore, the Supplier shall be liable to HC for all damages resulting from such infringement of third party rights, irrespective of fault.
In the event of an infringement of third party rights, HC shall be entitled, in addition to asserting further claims against the Supplier, to acquire from the third party who is the owner of the property rights a license required for the distribution, operation, use, resale or exploitation of the Supplies at the Supplier’s expense at a reasonable price.
IX. Provision of parts or tools
(1) HC shall retain title to any parts or items made available to the Supplier by HC. The processing, transformation or combination of such items by the Supplier shall always be carried out for HC. If an item owned by HC is processed, transformed or combined with other items not belonging to HC, HC acquires co-ownership of the new item in proportion to the value of the item provided by HC to the other processed, transformed or combined items at the time of processing, transformation or combination.
If an item provided by HC is inseparably mixed with other items not belonging to HC, HC acquires co-ownership of the new item in proportion to the value of the item belonging to HC to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the Supplier’s item is to be regarded as the main item, it shall be deemed agreed that the Supplier transfers co-ownership to HC on a pro rata basis. The Supplier shall hold the sole ownership or co-ownership thus created in safe custody for HC. 3.
All tools made available to the Supplier by HC shall remain the property of HC. The Supplier is obliged to use these tools exclusively for the manufacture of the products ordered by HC. Furthermore, the Supplier is obliged to adequately insure such tools at replacement value against fire, water and theft damage at its own expense. The Supplier shall notify HC of any incidents without delay. In the event of a culpable breach of this obligation, the Supplier shall be liable for all damages incurred by HC as a consequence thereof.
(1) All specifications, drawings, designs, models, samples, manufacturer’s instructions or other documents that HC provides to the Supplier for the purpose of preparing a quotation or executing an order are and shall remain the property of HC and may not be copied or used for other purposes or made available to third parties without the express written consent of HC. Upon request, all documents shall be returned to HC free of charge. The Supplier has no right of retention to such documents.
2. any goods or documents manufactured in accordance with HC’s specifications, drawings or models may not be made available to third parties without HC’s express written consent.
3. the Supplier undertakes to treat as confidential and not to disclose to third parties without the prior written consent of HC any business or technical information, trade secrets, know-how or other information of HC which is not available to the public and which becomes known to the Supplier in the course of the business relationship. Furthermore, the Supplier undertakes to impose a corresponding confidentiality obligation on its employees and, if applicable, subcontractors. 4.
The Supplier undertakes to treat the execution and the contents of the Contract as confidential. References to the business relations between HC and the Supplier in advertising materials, reference lists or similar documents require the prior written consent of HC.
5. The confidentiality obligations regulated in this Clause X. shall also apply after termination of the business relations.
XI. Final Provisions
1. should individual provisions of these General Terms and Conditions of Purchase be or become invalid, this shall not affect the validity of the remaining provisions.
(2) Without the prior written consent of HC, the Supplier shall not be entitled to transfer or assign its rights and obligations under the Contract to third parties. HC is entitled to transfer its obligations under the Agreement to third parties and to assign its rights and obligations to third parties without the Supplier’s consent.
The place of performance for the Supplier’s obligations is the delivery address or place of performance specified by HC. The place of performance for all other obligations is 76761 Rülzheim.
All legal relations in connection with the contract shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes arising from and in connection with the contract is Landau in der Pfalz. However, HC shall also be entitled to sue the Supplier at its place of business.